For the first time ever, an American company will be put on trial for human rights abuses committed by a government with which it did business.
Unocal, the $11 billion California oil giant, is accused of being ‘vicariously liable’ for the rape, torture, murder and enslavement of villagers by the company’s hired security forces along the site of an oil pipeline built with Unocal’s help in southern Burma in the 1990s.
“Unocal had nothing to do with any human rights abuses whatsoever,” says Daniel Petrocelli, the company’s defense counsel. Unocal, he says, did “everything in its power to prevent even the potential for any abuses accruing” in connection with the pipeline project.
The “vicarious liability” charge specifies that the defendant was aware of crimes being committed within its auspices, and did nothing to stop them.
The federal case, Doe vs. Unocal, marks the first time a multi-national corporation could be legally bound to international human rights law, and its outcome is being closely watched by human rights advocates and business leaders alike.
The plaintiffs also filed a case in California state court in 2000, arguing that Unocal’s forced labor practices violated California business law. A trial date was recently set for June 21, 2005, in California civil court. If found guilty in either case, Unocal will be forced to pay an award to the villagers.
“The mere fact that we’ve gotten this far has had a very positive effect on corporations and how they conduct their business,” says Dan Stormer, lawyer for the plaintiffs. “The existence of the case, and the successes that we’ve had, has held Unocal and other corporations up to public scrutiny.”
Hundreds of American businesses are arguing that the case will harm U.S. business interests. USA*Engage, a coalition of over 600 corporations, as well as lawyers for President Bush, have filed briefs on behalf of Unocal, arguing that if the matter is not dismissed its continuation could deter future economic engagement with foreign countries, and that similar cases could impede the war on terror by condemning governments that are otherwise on good terms with the United States.
“The Bush administration has been very, very hostile toward this and other similar cases,” says plaintiffs’ lawyer Judith Chomsky.
The case rests on the Alien Tort Claims Act, a 1789 law originally used to prosecute pirates in international waters. Since the 1980s, the law has been used to uphold human rights law against individuals responsible for massacre and torture abroad. The Unocal case will be the first time the law is used to sue a company.
Bill Reinsch, president of the American Foreign Trade Council said he is concerned about using U.S. courts to fight wrongs committed by other people, in other countries. “We are dealing with U.S. law and the way the founding fathers wrote it,” he says, arguing that the Tort Claims act was not intended to address human rights issues. “We shouldn’t go around ignoring that because we have a sympathetic case.”
One of the plaintiffs, Jane Doe, has testified that her husband was shot when attempting to flee forced labor on the pipeline, and that her baby was killed when thrown into a fire in retaliation for his attempted escape. All 12 plaintiffs remain anonymous for fear of repercussions against them and their family members.
The case has become a sort of poster child for a long line of similar cases against multinational corporations and the security forces they often use to protect their projects in the developing world. A group of Nigerians are trying to sue Chevron for the murder of protestors at Chevron’s Parabe offshore platform and the destruction of villages in the oil-rich Niger Delta region. Eleven villagers from Aceh, Indonesia, are suing Exxon Mobil, and a group of labor leaders from Colombia are suing an Alabama-based mining corporation on behalf of the families of slain workers.
David Vogel, business professor at University of California, Berkeley, and author of “Kindred Strangers: The Uneasy Relationship Between Politics and Business in America,” says that past efforts to get corporations to follow human rights law mostly sought voluntary corporate compliance. “What makes these cases unusual,” Vogel says, “is that they actually attempt to use the legal system to improve U.S. corporate standards.”
The Unocal case was born 10 years ago when a Burmese refugee approached a young American law student in Thailand. The refugee said that hundreds of Burmese villagers where fleeing forced labor on an oil pipeline being built with the help of an American company, and asked if the U.S. legal system could help. The law student brought the question back to lawyers in the United States, and they began to plan the case.
The business community fears that the case could leave Americans on the sidelines of lucrative ventures, including oil markets. “We do not want a group of folks who have differing points of views to stand in the way of the rights that companies have to conduct business where they believe it makes most sense to conduct business,” explains Unocal lawyer Daniel Petrocelli. “Otherwise we’ll become an isolated economy, and that’s of course inimical to the values that this country has always espoused, which is to press ahead to the next frontier and engage the world.”
Burmese villagers still living near the pipeline site say that as the case progresses there is less use of forced labor, according to Burmese activist Ka Hsaw Wa, of EarthRights International. “The pipeline operators, the military and corporations and the villagers all listen to news about the case on the radio. The majority of people know about the case over there,” Wa says.
Anna Sussman covers Burma and Southeast Asia for radio and print outlets. She is a student at UC Berkeley’s Graduate School of Journalism. ?