[DEBATE] : South Africa Apartheid Case May Hinge On ‘Political Question’ Test
Riaz K Tayob
riaz.tayob at gmail.com
Wed Apr 22 13:26:04 BST 2009
South Africa Apartheid Case May Hinge On ‘Political Question’ Test
The Supreme Court’s announcement this month that it will not hear an
appeal of a landmark consolidated case against U.S. multinationals that
traded with and invested in South Africa during apartheid sets the stage
for the resumption of a trial which both sides say could revolutionize
U.S. trade and investment practices.
Sources said that key to the outcome of the case will be the
interpretation by the U.S. District Court for the Southern District of
New York of an established “political question doctrine,” under which
courts may decide not to rule on a case because a matter is
fundamentally political rather than judicial in nature.
At issue is a suit brought by a group of South African plaintiffs
against more than dozens of U.S. and multinational companies for their
alleged collaboration with that country’s government during the
apartheid regime. The case, In re South African Apartheid, will come
before the U.S. Federal Court on July 8 with instructions to examine the
case in light of the political question doctrine.
This test is crucial now that an appellate ruling allowing the Alien
Tort Statute (ATS) to apply to the cases has been allowed to stand by
the Supreme Court decision.
On this point, plaintiffs in the case argue that the case centers on a
wrongdoing carried out by multinationals that needs to be addressed in a
court of law.
But defendants—which run the gamut of U.S. multinationals from Ford
Motor Company, General Electric, Coca-Cola, DuPont, Xerox and
IBM—counter that the issue of with whom companies can conduct trade is a
political question rather than a legal that should be settled in a court
of law. The executive branch has the right to make such decisions, and
engaging in business with South Africa was not illegal during apartheid,
business groups filing amicus briefs in the case have argued.
Business groups such as the National Foreign Trade Council and U.S.
Chamber of Commerce argue that the primary effect of this lawsuit will
be to deter investment in poor countries and disrupt trade flows
impairing worldwide economic growth. Business advocates argue that a
ruling in favor of the plaintiffs in the South African cases could open
the floodgates of lawsuits against U.S. companies, and in particular
would open the door to suits against companies trading with China, which
has long been accused of human rights abuses.
But one human rights advocate this week said the political question
doctrine test, while applicable in this case, would limit the broader
effects of a ruling in favor of plaintiffs to appropriate situations.
This source pointed out that the case known as Corrie v. Caterpillar was
dismissed by the Ninth Circuit last September.
That case was brought by the family of Rachel Corrie, an American aid
worker killed during an Israeli bulldozing of a Palestinian encampment,
against the maker of the bulldozers used. Sources said the court found
that the questions were not of the jurisdiction of the court by virtue
of being matters of foreign policy handled by Congress and the president.
According to scholars, the modern formulation of the political question
doctrine came in the 1962 Supreme Court case of Baker v. Carr, which
concerned voting rights in Tennessee. In that case, the Court laid out
criteria by which the courts could decide not to rule on a case because
a matter is political rather than judicial in nature.
Under precent from the Baker case, cases involving a political question
have “a textually demonstrable constitutional commitment of the issue to
a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on
The Supreme Court refused to hear an appeal of the In re South African
Apartheid case, and thereby let stand a Second Circuit appeals court
decision that sent the case back to the district court which had
originally dismissed it.
The plaintiffs in the case had appealed the district court dismissal and
argued that the ATS provides for liability for corporations that aid and
abet egregious abuses of human rights.
The district court had ruled that the 200-year-old ATS, which allows
foreign plaintiffs to sue in U.S. court over crimes committed abroad,
does not apply to the case. But the Appeals Court ruled that the
district court had erred in its ruling and cases of corporations aiding
and abetting can fall under the ATS.
The district court must now, by order of the Appeals Court, analyze the
cases based on jurisprudence that has led similar cases to be dismissed
over the so-called “political question” doctrine and on the basis of a
tradition of “ international comity” by which the U.S. recognizes the
applicability of foreign law in a foreign jurisdiction.
Judge Sprizzo of the District Court may ask the defendants to refile
their case on July 8, and sources said that in light of the “political
question” test, they expect the plaintiffs to pare down the number of
corporate defendants. The case against some defendants such as IBM and
Fujitsu, which supplied technology used to identify blacks for
persecution, appears to observers to be stronger than the case against
oil companies that sold fuel to the South African military and banks
which facilitated investment more broadly in the country prior to the
end of apartheid in 1993.
Michael Hausfeld, the lead attorney for one of the cases, Khulumani, et
al. vs . Barclays, consolidated into In re South African Apartheid, said
that if the District Court rules in favor of the plaintiffs, the effect
will be to “change corporate governance.” He said that when compared to
the real abuse aided by companies worldwide, the risk of frivolous
lawsuits based on the precedent in this case pales in comparison. “The
abuse far outweighs that,” he said.
But he said that it would be a “reasonable inference” to conclude that
the plaintiffs would pare down their corporate targets.
“Some of the complaints that were filed by others were clearly
misfocused,” he said. He said that some complaints challenged South
Africa’s sovereignty by demanding that educational, historical and
environmental trusts be set up for victims of apartheid, and he
indicated that these could be dropped.
The Supreme Court could not reach a quorum to hear the appeal, entitled
American Isuzu Motors v. Ntsebesa apparently due to conflicts of
interests based upon the stock-holdings of some justices, and declined
to hear the appeal of the South African apartheid cases on May 12.
According to publicly available financial disclosure forms, as of 2006,
Chief Justice John Roberts owned stock in one defendant, Citigroup.
Justice Samuel Alito owned stock in Exxon, and Justice Steven Breyer
owned stock in Colgate-Palmolive. Justice Anthony Kennedy’s son Gregory
works for defendant Credit Suisse.
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