Major case over apartheid “reparations”
on Jan 10, 2008 at 5:08 pm
Thirty-four U.S. and foreign companies on Thursday asked the Supreme Court to step in and stop any further action in lower courts on a massive case accusing them of assisting the policy of apartheid formerly pursued in South Africa. The text of the new petition can be found here. An earlier post on this blog anticipating the Supreme Court appeal can be found here.
The case — a grouping of ten separate lawsuits — seek damages upwards of $400 billion. The Second Circuit Court in a ruling on Oct. 12 has allowed the case to move forward. The new appeal to the Justices suggests that there is “certain to be years of additional litigation” following the Second Circuit decision.
Although a dissenting judge in the lower court urged lawyers to rush the case to the Supreme Court, perhaps to get it decided in the current Term, the filing appears now to have come too late for final action before the Court recesses for the summer — unless it is expedited to an unusual degree. The Court, however, is likely to indicate before the end of the Term at least whether it will hear the case.
A key issue is whether the Justice Department will join in urging the Supreme Court to hear the appeal. It opposed the continuation of the lawsuit in the lower courts, as has the current government of South Africa.
The lawsuits were filed under the Alien Tort Claims Statute, asserting that the business firms that allegedly did business in South Africa during the apartheid era aided and abetted the government in power in violating international law.
Here are the questions the petition raises:
“1. Whether, in light of the opposition to this litigation expressed by the Executive Branch, by South Africa, and by other nations — because plaintiffs’ suits effectively seek to overturn South Africa’s post-apartheid policy of reconciliation as well as the policies of the United States and other nations — the cases should be dismissed on grounds of case-specific deference to the political branches, political question, or international comity.
“2. Whether a private defendant may be sued under the ATS for aiding and abetting a violation of international law by a foreign government in its own territory.
“3. Whether a private defendant may be held directly liable under the ATS for violating international law standards codified in a ratified treaty that Congress expressly provided does not create enforceable rights.”
The brief on the other side of the case is due in 30 days, unless the time for filing is extended one or more times.
