Thursday, January 10, 2008

Cert. Petition Filed: Apartheid Litigation

The defendants in the apartheid Alien Tort Statute litigation filed a petition for a writ of certiorari today. At issue is an October Second Circuit decision (Khulumani v. Barclay National Bank Ltd.) that reinstated a class action lawsuit (really a combination of lawsuits) seeking to hold the defendants (U.S. and foreign corporations) liable for hundreds of billions of dollars in damages for allegedly aiding and abetting the South African apartheid regime in violation of international law. The petition is captioned American Isuzu Motors Inc. v. Ntsebeza; a docket number has yet to be assigned. For further background, see SCOTUSblog here and here and Opinio Juris here and here.

The questions presented by the petition are:

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.