Academic journal article Law and Policy in International Business

Jus Cogens, Reparation Agreements, and Holocaust Slave Labor Litigation

Academic journal article Law and Policy in International Business

Jus Cogens, Reparation Agreements, and Holocaust Slave Labor Litigation

Article excerpt


This Note discusses several issues involved in litigation concerning gross human rights violations. Specifically, it addresses human rights violations so serious they are included among those violations viewed as jus cogens: peremptory norms of international law from which no derogation is permitted.(1) Two recent decisions in the District Court for the District of New Jersey dismissed claims by victims of slave labor during the Holocaust against multinational corporations that they profited from the use of slave labor.(2) These claims were dismissed on the grounds that, though the Court possessed subject matter jurisdiction under the Alien Tort Claims Act (ATCA), prior reparation agreements between governments precluded individual victims from bringing private suits.(3) In addition, the court stated that the cases were non-justiciable under the political question doctrine and the principle of international comity.(4)

This Note will begin by providing a short synopsis of the background factual information required to understand the breadth of these claims and a brief overview of the historical significance of the claims. Examining the court's dismissal of these actions, this Note suggests that the reparation agreements entered into by the United States should be found invalid because they, in effect, violated jus cogens by condoning the acts of the German government and the corporations that profited from the use of slave labor. The analytical section of this Note begins by providing a description of the jus cogens concept as it has evolved over time. It then continues with a discussion of whether private parties can violate jus cogens and additionally whether, as international law stands today, individuals have rights under international law to bring actions on their own behalf or whether they must rely on their respective states to bring such actions. Following this discussion, the Note addresses why it should not be within a state's power to bargain away an individual's remedy, as provided for under international law. Then, assuming

that the international agreements were invalid under international law, this Note examines the question of whether a domestic court in the United States could still refuse to adjudicate the action on the basis of the political question doctrine. Finally, this Note addresses both the positive and negative effects such a determination would have on the international political community, as well as on the international business community.


A. Historical Context

Close to six million Jewish men, women, and children were killed at the instigation of Nazi Germany during World War II.(5) In addition, eight-to-ten million persons were forced to work as slave laborers in factories in Germany and throughout Europe during the War.(6) It is estimated that Nazis stole between 230 billion and 320 billion in assets in today's dollars.(7) Some historians have estimated that approximately 700,000 of these forced laborers are still alive; others place the number of survivors at 1.6 million.(8) Since 1950, postwar West Germany has made approximately $70 billion in reparation payments to Holocaust victims.(9) Nevertheless, even with such reparation payments, many Nazi victims have yet to receive adequate compensation. As a result, the reparations problem still persists today.(10) When one compares the large number of victims to the reparation payments that have been provided, the individual amounts provided to survivors thus far have been grossly inadequate in comparison to the suffering and losses these individuals have been forced to endure.

The Holocaust-era litigation emerged in 1996, when Holocaust survivors began filing claims in U.S. courts at both the federal and state levels. These included: claims against Swiss banks;(11) claims against European insurance companies;(12) claims arising from the use of slave labor;(13) claims against German and Austrian banks;(14) and claims regarding art stolen by the Nazis. …

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