SCOTUS Allows Major Intrusion Of “International Law”

To now, the Executive and Congressional branches have had exclusive authority to set US foreign policy, and trade policy. Today, the Supreme Court failed to hear a case, due to the stock holdings of several Justices causing the absence of a majority, allowing a two-century old law to be tested for whether it allows a tort suit against major US corporations for “aiding and abetting” the former South Africa’s apartheid.

News summaries of the matter can be read at Associated Press, Bloomberg, SCOTUS blog, and best of the four at Christian Science Monitor.

The amicus brief filed by major US trade organizations lays out well the confused state of the law and precedents. Carter Wood summarizes the issues, from the standpoint of critics of the suit.

Their primary point, aside from interference in foreign policy, is that the matter needs to be settled in order to engage in foreign trade at all. Otherwise, US companies will be subject to huge suits after the fact, and based on changing mores.

I’ve written critically about IBM and General Motors’ critical “aiding and abetting” Hitler’s regime. I’ve written critically of US technology leaders “aiding and abetting” China, Vietnam, and Middle East satraps’ repression. (There are so many, use the Search at the left margin.) I would consider myself uncompromising in my condemnation.

Yet, my criticism has been against the lack of restraint, or decency, by US multinationals, and against the Executive and Congress for not specifying proper limits -- within their constitutional jurisdiction -- on “aiding and abetting.” There is considerable, from what I’ve read overwhelming, doubt whether either the two-century old law or current precedents extend the jurisdiction of US courts to “aiding and abetting.”

There is tenuous evidence, at best, that trade with oppressive regimes serves to “liberalize” them. On the other hand, their entrenchment is furthered, but other trading countries are more than willing to aid and abet, so US companies miss out on the profits.

The key point is that the US owes both itself and its international standing to lead in not aiding and abetting nefarious regimes.

But, that is not a matter to be decided by international ambulance chasers, or those seeking to turn US law into a tail on international law theories – most often used to defend evildoers or hamstring their meeting justice at US hands. Further, it is not a matter to be extended to another tool to attack allies.

It is a matter to be determined by the Executive operating with the Congress to quickly bring modern specificity to trade law, and enforce it. Otherwise, they irresponsibly leave the matter to quirks of SCOTUS Justices’ stockholdings or lower courts’ frequent penchant for creating laws out of theories not of whole cloth.