International human rights v. Multinational corporate money

About a month ago, the U.S. Supreme Court almost heard a case from the 2nd U.S. Circuit Court of Appeals in which the plaintiffs, South African citizens, sought damages from several American and multi-national corporations for their role in (and profiting from) the perpetuation of apartheid in violation of international law. The Circuit Court had ruled that the case (American Isuzu Motors v. Ntsebeza) could proceed under the Alien Tort Statute (also known as the Alien Tort Claims Act, or ATCA), which is an over-200-year-old law granting jurisdiction to U.S. federal courts to hear complaints by foreign nationals for torts in violation of the “law of nations or a treaty of the United States.” Although the law was originally drawn up to protect against acts of piracy, it has in recent years been used more and more to hold government, military and corporate leaders responsible for human rights abuses committed as a result of their presence in a foreign country. Not suprisingly, the Bush Administration has consistently advocated the restriction of ATCA and has filed many briefs and letters in support of companies accused in ATCA cases. Given the increasing controversy surrounding the Alien Tort Claims Act, one may wonder why the U.S. Supreme Court didn’t hear the apartheid case…

Why? Because the Court couldn’t constitute the 6-judge quorum required to hear any case. Justices Breyer, Alito, Kennedy and Chief Justice Roberts ALL recused themselves, leaving only the remaining 5 justices to hear the case. Why did they recuse themselves? Because they ALL own stock in, are related to the managers of, or have some other financial stake in the companies that are defendants in the suits (including, among others, Ford Motor Co., Credit Suisse, Hewlett-Packard, BP, Exxon-Mobil, IBM, and Colgate-Palmolive, Inc). As it turns out, the inability of the Supreme Court to cobble together a quorum was good news for the South African plaintiffs since, in situations like this, the decision of the lower court is effectively upheld. (However, it should also be noted that Congress passed a law in 2006 that permits federal judges to sell shares of stock and reinvest the proceeds in mutual funds or other investments without capital gains tax penalty so that the judges could avoid having to recuse themselves in these cases. Chief Justice Roberts has already done this twice in order to get back into cases from which he initially stepped aside.) So, despite the protests of the Bush Administration, the South African goverment and, of course, the multinational companies involved, the $400 billion dollar tort case will go forward… for now.

Are there any lessons to be taken from this story? Of course there are…

(1) Human Rights Watch lists the status of the Alien Tort Claims Act under the things it’s “watching” in the United States, since ATCA is one of the few toools we have to prosecute human rights abusers. Along with the folks over at Human Rights Watch, I also want to urge readers of this blog to actively work to defend ATCA.

(2) While you’re working to defend ATCA, keep an eye out for the Supreme Court justices’ questionable recusals. There’s been very little coverage of this case in the media, which is disheartening, since this case is a crystal-clear demonstration of the mutual contamination of multinational corporate interest, domestic and international “justice” trends, and U.S. foreign-policy paranoia. Of course, Supreme Court justices should avoid involvement in corporations that are regularly involved in lawsuits– but if they aren’t inclined to do so independently, even after being thrown a great big tax carrot from Congress, then maybe we should look for some way to compel them to avoid these kinds of conflicts of interest.

(3) Although, as a rule, this is not the direction I am inclined to pursue first– maybe we should take a lesson from Lester Freamon of The Wire and “follow the money” in our efforts to defend human rights. The $400 billion that the South African plaintiffs are seeking in the case discussed here my be a “blue sky” figure, but my guess is that it makes the corporations who may have to pay it sit up and take notice. If we can’t win human rights cases in the U.S. on principle, then we can at least make it very, very expensive.