Aliens, Apartheid and US Courts - Is the Right of Apartheid Victims to Claim Reparations from Multinational Corporations at Last Recognized?

Abstract

Over the last decade a growing number of cases brought before U.S. courts have alleged that major multinational corporations were complicit in and benefited from human rights violations committed by agents of foreign governments. These cases concern one of the most disputed questions in international human rights litigation, namely, the availability of secondary or indirect liability and aiding and abetting liability in particular. While the U.S. Supreme Court has yet to address the issue, many District and Circuit Courts have held that aiding and abetting liability is available under the Alien Tort Claims Act (‘ATCA’).

This paper aims to examine the most recent decision of In re South African Apartheid Litigation (commonly referred to as the Khulumani case) in the Southern District Court of New York and argue in favour of the court’s opinion that aiding and abetting liability is available, necessary and desirable and does not conflict with the political question and international comity doctrines. It will be argued that submissions against recognizing this kind of liability, such as those by the Bush administration and South African Mbeki government, are misguided, illogical and damaging and that without the threat of liability, which the ATCA can afford, multinational corporations face no consequences for aiding or abetting the very abuses which U.S. foreign policy claims it seeks to prevent.

Keywords: Alien Tort Act/Statute, Aiding and Abetting Liability, Apartheid Victims, Reparations, Multinational Corporations, Political Question and International Comity