The Supreme Court and International Law — An Unclear Future …..

The Supreme Court ruled yesterday that the “Torture Victim Protection Act of 1991” only applies to individuals and not corporations. (Mohamad v. Palestinian Authority). This was based on the interpretation of the term “individuals.” This was a technical but a correct decision by Justice Sotomayor. This leaves corporations and other foreign actors off the hook for acts of foreign torture.
The Supreme Court previously asked for additional briefs in Kiobel v. Royal Dutch Petroleum. It wants to consider  whether under the Alien Tort Statute anyone at all can be sued for violating international law when the actions occur outside of the United States.  This is even though the “Supremacy Clause” declares treaty law as the supreme law of the land and prior Supreme Court decisions have held the customary international law to be part of our law.
This latest case has the potential of being the most troublesome. It could finally provide an opportunity for the conservative justices to aggressively apply their well-know antagonism toward all things international law.
In the long run one saving grace is that the Congress can amend the two above existing statutes to allow the application of international law to foreign acts of terrorism and human rights violations.
But given the deadlock in the Congress I wouldn’t count on this anytime too soon. That’s why there is a big murky cloud over the role of the U.S. in promoting international law.
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About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
This entry was posted in Global Trade Relations and tagged , , , , , , , . Bookmark the permalink.

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