Update on Unocal/Burma Case

Feb 10, Mother Jones

Courting Responsibility

Terry Collingsworth - Interviewed By Jaideep Singh

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.

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?"