Under the Alien Tort Statute should foreign plaintiffs be allowed to sue foreign corporations in American courts for torture when that action is done abroad in cooperation with a foreign government?
Should the multinationals, unlike private individuals, be allowed to escape American jurisdiction?
The general defense against allowing such suits is that a corporation is not subject to international law. Yet, individuals are in fact, in various situations, subject to customary international law. Pirates have for hundreds of years been subject to capture and jail. Corporations are considered juridical persons and have constitutional rights in the United States.
After hearing oral argument the Supreme Court raised the larger question and asked for briefs on whether anyone should be held liable under the statute — corporations or individuals. This is not a good sign.
Conservative jurists have shown great animosity towards anything international including the application of customary international law within the United States. Which has been applicable in the United States under the Supremacy Clause (Article VI) since the 1800’s.
As a matter of law and policy it seems clear that suits against foreign multinationals (and individuals) for overseas torture should proceed in the United States.
In the context of the global trading system which is becoming dramatically more inter-connected, upholding jurisdiction under the Alien Tort Statute provides a viable means of enforcing corporate responsibility in an increasingly decentralized and balkanized global legal system.