Courting Responsibility

How a small group of campaigning lawyers could turn a 200-year-old U.S. law into a powerful and global weapons for human rights activists.

| Tue Feb. 10, 2004 3:00 AM EST

Terry Collingsworth and his colleagues at the International Labor Rights Fund made history in 1996 by filing the first lawsuit against a U.S. multinational for its alleged complicity in human rights abuses committed outside the United States. This spring, a state judge in Los Angeles finally began hearing arguments on the case, with Collingsworth as the lead lawyer for the plaintiffs. If he prevails, human rights activists could be given a remarkably powerful new weapon.

The case contends that Unocal Corp., the massive California-based oil conglomerate, should be held accountable for human rights violations that took place during the construction of its gas pipeline in Burma. Representing 14 Burmese villagers forced by the Burmese army into working on the pipeline, Collingsworth and his colleagues filed suit under the Alien Tort Claims Act, a little-known 18th-century provision originally drafted to protect against piracy. Just getting the matter to trial was a sort legal landmark. The case marks the first time the alien tort law has been used to sue a corporation – in the past, it has been applied only to individuals. Now, if a jury finds that Unocal is responsible for the use of slave labor, the company could be ordered to pay millions in damages and may even be forced to hand over its profits from the pipeline.

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On January 23, Unocal prevailed in the initial stage of the argument, convincing Los Angeles Superior Court Judge Victoria Chaney that the parent company must be considered legally separate from the Bermuda-based subsidiary that actually contracted for the pipeline. Still, Collingsworth is confident he will prevail. If he does, human rights activists in this country could be handed a powerful new weapon, one he calls "a step toward a world in which the multinationals can no longer get away with murder by simply moving operations to places where they can get anything they want."

Mother Jones spoke to Collingsworth during a break in the trial.

MotherJones.com: You're suing a U.S. oil company in U.S. court on behalf of Burmese villagers for violations committed in Burma. What's the background?

Terry Collingsworth: Back in 1992, Unocal signed a contract with (the French energy company) Total and the Burmese government for a gas pipeline, with full knowledge of Myanmar's record of using forced labor. The Burmese military, by contract, was in charge of security for the construction.

The Burmese military started rounding up villagers and forced them to work at gunpoint. They were forced to do tasks like clearing paths in the forest, building bridge embankments, and served as porters for the military. Some people were tortured and executed. Federal courts have found, without exception, that Unocal knowingly benefited from this.

MJ.com: Your case depends on proving that Unocal had knowledge of the situation in Burma. What are you saying they knew?

TC: In 1992, before they signed the pipeline contract, they hired a company, the Control Risks Group, to assess the viability of doing business in Burma. The report issued by Control Risks said that forced labor was rampant in Burma, and that only a very high profit could justify taking the risk of investing in the country. So we think Unocal made a cost-benefit analysis and decided to go ahead.

For years, it was well known that forced labor was endemic in Burma. (The State Department, Amnesty International, Human Rights Watch, the United Nations, and the International Labor Organization all reported this.) Some groups -- namely the Burma Forum and the Federation of Trade Unions of Burma -- warned specifically about this project. They met with the president of Unocal, John Imle, and they tried to get resolutions passed at shareholders' meetings.

Unocal also consulted John Haseman, a former military attaché in the U.S. embassy in Rangoon. He sent a report to Imle that said forced labor – and even executions – were in fact taking place on the project, and that Unocal could appear to be a collaborator. Unocal simply put that file away.

MJ.com: The judge has ruled in favor of Unocal in Phase I of the trial. Is that a significant setback for your case?

TC: It's true that Unocal won Phase I of our trial, which was focused exclusively on whether Unocal Corporation, the parent company, can claim to have a separate legal existence from the subsidiaries it created to hold its interest in the Burma project that used the slave labor of my clients to construct a gas pipeline in Burma. If we had won, then at Phase II, the liability phase of the trial, we would have been able to establish Unocal's liability simply by showing that ANY Unocal entity was responsible for what happened in Burma. Now, however, we have another step in our proof – we are going to have to prove that Unocal Corporation directed and controlled the activities of its subsidiary, which then participated in the decisions leading to the use of slave labor on the project. We have the evidence to do this, and we will be in front of a jury this time. So, we remain confident of our ultimate victory.

MJ.com: Some say that the way you're using ATCA betrays the intent of the law. How do you respond to that?

TC: Well, look at actual statute; ATCA applies to "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." My clients are aliens. Check. There is an actionable tort – torture, execution, and slavery. Check. And it violates the law of nations. Check. The case meets the statute, so we can proceed. It's as simple as that.

Every appellate court has upheld this. There are two exceptions, which represent extreme views. In a 1984, when he was a member of the U.S. Court of Appeals for the D.C. Circuit, Robert Bork wrote a concurring opinion in the case of Tel-Oren v. Libyan Arab Republic that challenged the use of the ATCA in human rights suits. The other judges didn't agree with him, and that's why he wrote a separate concurring opinion. The same goes for Justice Raymond Randolph of the DC Circuit, who wrote a separate concurring opinion in a recent case in which he argued that the First Congress never meant to create a private right of action in U.S. courts for violations of international law.

MJ.com: What other ATCA cases do you have pending, and what progress in being made?

TC: We have filed a case against ExxonMobil for atrocities in Indonesia, Coca Cola for abuses in Colombia, and both Shell and Chevron for abuses in Nigeria, among others. I'm optimistic about progress because we have good lower court rulings that uphold our right to sue. Progress is stalled on the ExxonMobil case, which is frozen right now because a judge is sitting on a motion filed by the State Department. The administration argues that the case interferes with the war on terrorism by harming relations with Indonesia.

MJ.com: How do you respond to the suggestion that such ATCA cases could discourage investment in developing countries?

TC: That argument is even more ridiculous than the war on terrorism argument. Some argue that governments might not welcome American investors because that might subject them to scrutiny under a future lawsuit. In the future, the thinking goes, Burma would reject foreign investment from a company like Unocal because they don't want to risk being scrutinized in a case like ours. That's laughable to argue that Burma, which is desperate for investment, would say, "No thanks, we don't want your money." We've got expert testimony in the Exxon case to debunk that thinking.

Some, like the State Department, argue American companies are at a disadvantage because they will have to comply with international human rights law, while other companies won't. The State Department has argued that it would be better to have our upstanding, American values-exporting companies there rather than, say, a Chinese company. But we're talking about extreme crimes like execution and torture. I showed them a picture of a client who had his forearm hacked off by a machete, with burns all over his body. How much worse can it get? What are we worried about? That the Chinese will come in and chop both forearms off?

MJ.com: Clearly the Bush administration doesn't like the way you're seeking to use the provision. What actions are they taking?

TC: There are three things they can do, and they're doing all of them. First, they can get the State Department to say that it interferes with foreign policy. They've done that in the ExxonMobil case, and the judge is still trying to decide whether the case should go forward. We argue that, in our system of government, the executive shouldn't get to decide which cases go forward, courts do.

They've also lobbied Congress to repeal the alien tort claims act. They're not making much headway on that. Even a conservative Republican doesn't want to be known as someone who bailed out oil companies by repealing a statute passed by the first continental congress back in 1789.

The third thing they can do – and this is the most worrying for us – is file briefs in ongoing cases arguing that the statute should not apply to the given case. They've filed an amicus brief in our case. They're trying to use the normally considerable prestige of the Justice Department and the Solicitor General's office to try to convince courts that the statute is wrongly interpreted.

MJ.com: We can make educated guesses, but in your view, why is the Bush administration going after this so fiercely?

TC: Well, I would cite the New York Times editorial from a few months back, when the Bush administration intervened in the case against ExxonMobil for abuses in Aceh, Indonesia – headlined "Oily Diplomacy." If I say it, it sounds crazy. But even the New York Times – which I consider to be fairly conservative -- drew the conclusion that the only interests being advanced by their intervention were those of the oil companies, many of which have been sued under ATCA. The Bush administration argued the case would hinder the war on terrorism. They're just looking to bail out their friends. These guys didn't care about the ATCA until the oil companies started getting sued.

MJ.com: Some say it's arrogant for America's legal system to rule on wrongs committed elsewhere. What's your response?

TC: If there is a functioning legal system in a country, then there's no reason to file the case here. As an advocate of human and labor rights, I would love for every country in the world to have a functioning system so they could handle their own problems. But my clients could not bring this case in Burma. They'd be executed for even trying.

MJ.com: How did you put this particular case together?

TC: In the course of their work interviewing refugees along the Thai border, the Federation Trade Unions of Burma (FTUB) – a group outlawed by the Burmese regime – found that many of the interviewees said people were forced to work on some international project that had them clearing paths for construction. Piecing together the information, they figured out that it was the Unocal/Total pipeline project. A leader of the FTUB called me up. I later made trips to the border area to talk to people and verify their claims. My 14 clients all worked on the Unocal project.

Maung Maung, the head of the FTUB, gathered the information we had, and arranged a meeting with Dennis Codon, Unocal's Chief Legal Officer. Maung suggested that an independent inspector be allowed into the pipeline corridor. Fearing that an inspector's observations would be reported all over the news, Maung reasoned, the regime might have stopped the abuse. But after Maung made the suggestion, Codon never returned his calls.

MJ.com: Why did it take people so long to figure out that they could use the law against corporations?

TC: We had so many planets that had to align. We had to have plaintiffs in a repressive regime who had been injured by an agreement that involved a human rights violation between a corporation and a government. Fortunately, there just aren't many situations like that. Sometimes we would hear of a situation, but there would be no plaintiffs because they were afraid they would be murdered for coming forward. Sometimes it was hard to prove there was an agreement between a corporation and a government. And human rights groups like us just don't have the resources to go out looking for problems. In this case, we had Burmese activists approach us. It just took time to come across a situation that met all of the strenuous criteria.

MJ.com: You've said that this case represents just one part of the issue of corporate responsibility? Where does this fit?

TC: In the human and labor rights community, suing companies is our nuclear weapon – our last resort. We try to talk to companies and negotiate a better way. In the process of debating the alien tort claims statute, I've met with and publicly debated the president of the U.S. Council on International Business (USIB). I've met with the National Foreign Trade Council, a group that lobbies for multinationals. I've said if they don't like this litigation stuff, let's talk about alternatives. We've suggested mechanisms such as a social clause in the WTO statute that gives puts labor and human rights on the same level as intellectual property, capital investment, and other rights that are protected for companies. Thomas Niles, USIB's president, said "that'll never happen in my lifetime." They're not serious about alternatives. They want to have it both ways. So we're going to keep suing them and keep winning. And then we'll say, "hey, how do you want to do this?"