In Re South African Apartheid Litigation and Beyond: Corporate Liability for Aiding and Abetting under the Alien Tort Statute

Abstract

In a series of decisions that have their origin in a class action suit brought against various multinational corporations over their activities in apartheid-era South Africa, U.S. federal courts have significantly and controversially widened the Alien Tort Statute’s potential reach. This development puts into sharp relief conflicting demands for the protection of human rights abroad and security and predictability for foreign trade and investment.

The present paper examines whether corporate aiding and abetting liability under the ATS strikes a reasonable balance and whether the statute will continue to provide a remedy against human rights abuse by corporate actors in individual cases as well as shape international normative expectations regarding corporate accountability in general. After tracing the evolution of ATS litigation in relation to corporate defendants and affirming corporate actors’ direct international obligation to respect core human rights, the paper discusses corporate aiding and abetting liability. It concludes that international customary law rather than federal common law governs the core elements -- as against ancillary aspects – of secondary liability under the ATS. Finally, it offers an assessment of apartheid-era litigation to date and concludes that far from interfering with legitimate business expectations, the case law, as it stands now, enhances the statute’s contemporary relevance in complementing broad-based international efforts to strengthen corporate accountability.

Keywords: Alien Tort Statute, Apartheid, Corporations as subjects of International Law, Choice-of-Law, mens rea, Corporate Liability, Human Rights, International Criminal Court

JEL Classification: K22, K33