Sunday, May 25, 2008

Alien Tort action update

As I've written, in Sosa v. Alvarez Machain, the Supreme Court did not entirely rule out bringing suits against transnational corporations (TNCs). Nor did it exactly rule them in: it stated that when creating causes of action for violations of international customary human rights norms, judges must consider the international consequences of their actions. And their example of a questionable case was the one then pending before the District Court in New York against numerous TNCs claimed to have participated in or contributed to apartheid in South Africa through their operations there. Following the State Department's recommendation, that court then dismissed those cases. The 2nd Circuit Court of Appeals then reinstated them, remanding for trial on an "aiding and abetting" theory. With the support of the Justice Department, defendants appealed to the Supreme Court, seeking to put an end to the case. But the Court lacked a quorum of six to take the case--four Justices of the Supreme Court have investments in some of the companies involved, so the 2nd Circuit decision stands and the case will go forward.
Meanwhile back in January, Chief Justice John Roberts denied a request by Exxon Mobil to halt evidence gathering in a case brought against it by Indonesian villagers. Exxon then sought an immediate appeal to the D.C. Circuit because the District Court judge had not dismissed the case in its entirety. When the issue of Exxon's right to an immediate appeal came before the Supreme Court earlier this month, Solicitor General Paul D. Clement urged denial: the District Court had accepted that pursuing claims brought under the Alien Tort Statute against Exxon regarding its use of Indonesian military personnel as security guards would cause foreign policy complications with Indonesia, one of the US's allies in the "war on terror." It therefore dismissed them, and dismissed the case against Exxon's Indonesian partner, a company owned by the Indonesian government. All that remains of Exxon Mobil, et al., v. Doe I are state common law tort for wrongful death, battery, arbitrary arrest and detention, etc. (Thanks to Scotusblog for the head's up on these.)
Will these cases cancel each other out? Will they settle, as did Unocal, thereby depriving all concerned of a judgment on corporate liability for violations of human rights (torture or summary execution as opposed to battery or wrongful death)?

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