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Corporate accountability in the global economy

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Title:
Corporate accountability in the global economy the role of the alien tort claims act in mitigating human rights abuses within the context of economic development
Creator:
Quinn, Katrina R
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Language:
English
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vi, 107 leaves : ; 28 cm

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Subjects / Keywords:
Alien Tort Claims Act (United States) ( fast )
Economic development projects ( lcsh )
Human rights ( lcsh )
Petroleum industry and trade -- Environmental aspects ( lcsh )
Social responsibility of business -- United States ( lcsh )
Economic development projects ( fast )
Human rights ( fast )
Petroleum industry and trade -- Environmental aspects ( fast )
Social responsibility of business ( fast )
United States ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 102-107).
General Note:
Department of Political Science
Statement of Responsibility:
by Katrina R. Quinn.

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University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
62879511 ( OCLC )
ocm62879511
Classification:
LD1193.L64 2005m Q84 ( lcc )

Full Text
CORPORATE ACCOUNTABILITY IN THE GLOBAL ECONOMY; THE ROLE
OF THE ALIEN TORT CLAIMS ACT IN MITIGATING HUMAN RIGHTS
ABUSES WITHIN THE CONTEXT OF ECONOMIC DEVELOPMENT
PROJECTS
by
Katrina R. Quinn
B.A. University of Colorado at Denver, 1997
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science
2005
f


This thesis for the Master of Arts
degree by
Katrina R. Quinn
has been approved
by
S-J3-OS-
Date


Quinn, Katrina R. (M.A., Political Science)
Corporate Accountability in the Global Economy ; The Role of the Alien Tort
Claims Act in Mitigating Human Rights Abuses Within the Context of
Economic Development Projects
Thesis directed by Professor Anna C. Sampaio
ABSTRACT
This paper addresses human rights violations committed within the
context of major resource extraction projects. It identifies inadequacies in the
international legal system that precludes a comprehensive approach to
solving such issues. It analyzes the global economic context prior to
performing case studies of two communities within which long-term oil
extraction activities have occurred. This paper asserts that indigenous
communities are frequently victimized in the resource extraction process and
analyzes the reasons for this. Exploring the dynamics between some state
governments and some multi-national corporate entities and framing the
relationships of indigenous peoples to their territories, as well as addressing
the impacts of development, helps to clarify the resulting conflicts.
My hypothesis is that the United States Alien Tort Claims Act is an
effective mechanism for holding multinational corporations accountable for
resulting human rights abuses as well as a viable means of empowering
indigenous peoples to participate equally in the process. This domestic
remedy is currently being applied to corporations as a means of linking
corporate accountability to economic development.
Performing case studies of the long-term conflict-ridden situations in
Burmas Tenasserim region and Nigerias Ogoni region provides separate
microcosms of all of the dynamics discussed above. Primarily though, they
are ideal test cases for the application of ATCA to multinational corporations,
as well as being the optimal settings in which to assess the efficacy of the
ATCA as it relates to my hypothesis.
The resulting court cases, Doe v. Unocal and Wiwa v. Royal Dutch /
Shell are one way to ascertain the efficacy of the ATCA to compel corporate
accountability. The Doe v. Unocal case was ultimately settled in 2004,
resulting in financial remuneration to Burmese villagers. To this end, the
in


ATCA was effective. However, the absence of any public disclosure of the
details of the settlement notwithstanding, there is no evidence of
environmental rehabilitation or increased transparency or democracy in the
decisions around the ongoing extraction activities. In Nigeria, the court case is
still pending trial after ten years. In the absence of any concrete court finding,
the efficacy of the ATCA can only be assessed through reports coming from
that area. Based on the available research, regarding the quality of the oil
extraction, the incidence of human rights abuses and environmental
degradation, the ATCA seems not to have affected any discernible change.
Community resistance in Nigeria has substantially escalated from non violent
resistance to violent protests, consistently resulting in widespread human
rights violations. Based on my methods and findings, the Alien Tort Claims
Act is minimally effective for compelling corporate accountability.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
IV


CONTENTS
CHAPTER
1. INTRODUCTION.......................................................1
Background.......................................................1
Literature Review................................................7
Globalization................................................7
The Role of NGOs in Addressing Accountability for Human Rights
Violations..................................................13
Methods.........................................................16
Potential Problems..........................................18
Expected Outcome............................................19
Chapter Outline.................................................20
Summary.........................................................20
2. ALIEN TORT CLAIMS ACT (ATCA)......................................22
Introduction to the ATCA........................................22
Background......................................................24
Filartiga v. Pena-lrala.....................................25
Kadic v. Karadzic...........................................29
Sosa v. Alvarez-Machain.....................................31
Elements of an ATCA claim.......................................34
Debate Around Current ATCA Application..........................37
Conclusion
40


3. BURMA: A CASE STUDY..............................................43
Introduction ..................................................43
Background.....................................................44
The State, the Corporation and the Community...................47
The ATCA Case: Doe v. Unocal...................................53
The Role of NGOs...............................................59
Conclusion.....................................................60
4. NIGERIA: A CASE STUDY............................................65
Introduction...................................................65
Background.....................................................66
The State, the Corporation and the Community...................68
The ATCA Case: Wiwa v. Royal Dutch Petroleum and Shell Transport... 73
The Role of NGOs...............................................78
Conclusion.....................................................79
5. CONCLUSIONS......................................................82
Introduction...................................................82
Compare and Contrast Context...................................85
Compare and Contrast Court Cases...............................91
NGO Advocacy...................................................92
General Conclusions............................................93
Viability of ATCA: Its Successes, Limitations and Implications.96
REFERENCES..........................................................102
vi


CHAPTER 1
INTRODUCTION
Background
Within the context of the rapidly expanding global economy, there are
countless natural resource extraction ventures as well as countless affected
communities. These projects, usually undertaken by multinational
corporations (MNCs) in conjunction with national governments, yield an entire
spectrum of outcomes. On one end, there is evidence of environmental
destruction and cultural displacement, on the other end, there is evidence of
improvements in infrastructure and economic development. Frequently, the
end result is some combination of the above, simultaneously yielding both
positive and negative outcomes. Indigenous peoples are one of the
populations most affected by these projects and MNCs are often the driving
force behind them.
The global economy consists of many roles, assumed by numerous
actors, occupying different social, political and economic spaces; all with
varying amounts of power and resources. Some parties in the system; state
governments, international lending institutions, non-governmental
organizations (NGOs) and citizens, are bound by relatively clear roles and
1


laws. They are also bound by certain existing accountability mechanisms, i.e.,
state, federal and international laws, trade agreements and treaties.
Multinational corporations on the other hand, have the option of
operating in contexts in which the rule of law is less than paramount.
Theoretically, MNCs are constrained by the laws of the countries in which
they are based, as well as those in which they operate. Often, however, these
laws are not enforced. When MNCs choose to operate in countries with
corrupt or dictatorial governments, there is often little enforcement, little
transparency and little or no visibility. Within the larger context of the global
economy, few international fora exist to hold corporations accountable for
their business practices. (Bridgeman, 2003,1). Moreover, in this context,
governments frequently experience a conflict of interest between enforcing
national laws protecting citizens and the environment and penalizing the
MNCs that, in some cases, constitute their primary source of income.
This analysis operates on several assumptions. The underlying
assumption is that the global economy is partially driven by a development
imperative focused on mobilizing capital. As this imperative spreads across
the globe and increasingly encroaches upon undeveloped geographical
areas, indigenous and environmental concerns increasingly overlap. The next
assumption is that the cultural survival of indigenous peoples and the health
of local ecosystems are often intertwined. For indigenous peoples, the risks
2


to exposure to environmental damage can result in not only harms to their
health, but also to their livelihood and well-being because their food, drink,
bathing, and cultural rituals are all intricately connected to the land (Cohan,
2002,153). Some indigenous peoples still derive their subsistence from their
local ecosystems using traditional methods. In light of the development
imperative, many indigenous peoples are compelled to advocate for the
environment to help ensure their own cultural and physical survival.
At the global level, there are numerous examples illustrating the
conflict between existing and potential economic development projects and
natural resources on indigenous lands. The most readily available natural
resources on earth have been drastically depleted and those that remain are
frequently situated on indigenous lands. The geographic location of these
resources combined with their growing scarcity, makes them increasingly
strategic. As consumer demand for natural resources rises, accessing them
becomes an increasingly important political-economic issue. Increased
resource extraction stems, in large part, from increased global consumption
levels and a concomitant decrease in their availability, a classic
macroeconomic supply and demand dynamic. The high demand for
resources on indigenous lands and the methods for extracting them,
combined with the institutions and laws governing global free trade, often
3


situate indigenous and corporate interests at opposite ends of a political-
economic spectrum.
The imperative to modernize and integrate into the global economy
has changed the dynamics of global trade. The more traditional state-
centered structure of government has given way to a system which accords
multinational corporations substantial leverage to drive economic
development. This systemic evolution has also provided new methods and
opportunities for community resistance. In certain specific instances, large-
scale resource extraction gives rise to significant indigenous-environmental
resistance movements. The cultural and environmental ramifications for
indigenous communities frequently oppose the political and economic
motivations that drive them.
My next assumption then, is that situations do arise in which there is a
perceived conflict of interest. When this divergence leads to strife, at one end
of the spectrum, mediation and negotiations, often with the aid of NGOs, can
lead to conflict resolution. At the other end of the spectrum, the absence or
failure of these processes can precipitate protracted violent conflict. Such
clashes can result in the destruction of corporate, private and state property
and infrastructure, environmental degradation, as well as a complete array of
human rights violations.
4


My final assumption then is that accountability mechanisms, applicable
to all participating entities, would help to balance the relative power
imbalance. Despite the current lack of international accountability
mechanisms applicable to MNCs, there is one U.S. domestic remedy that has
evolved to apply to MNCs in certain, very specific cases. The Alien Tort
Claims Act, or ATCA, may prove to be vital in precipitating the development of
some democratic processes into the global economic system. I argue that
the Alien Tort Claims Act is an effective source of accountability for
MNCs for their role in human rights violations and an effective source of
empowerment for indigenous peoples to affect development within their
communities. In order to find that the ATCA is effective, there would have
to be evidence that it had affected qualitative change in the situations in which
it is a factor. Relative to their role in perpetrating human rights violations,
effective accountability of MNCs would compel multinational corporations to
provide financial remuneration to victims, communities and individuals,
commensurate with the degree of loss. It would further mandate
environmental clean-up and rehabilitation of all affected areas. Effectiveness
of the ATCA relative to empowerment of indigenous peoples would be
evidenced by the inclusion of communities into the process and the allocation
of leverage to communities to affect the process, from inception to
completion. At the very least, on both counts, effectiveness would compel fair
5


compensation for loss of land, livelihood, property and whatever else was
pertinent. Further effectiveness would be demonstrated by attempts to make
their operations transparent and open to the communities in which they
operate.
The remainder of this chapter provides a brief review of the literature
and methods. Following is a brief review of the literature pertaining to the
evolution of globalization in the modern era, NGOs and accountability. The
last sections in chapter one provide information regarding my methods, my
expectations and any problems that I anticipate. The subsequent four
chapters analyze the evolution of the ATCA as an accountability mechanism
applicable to MNCs. In the second chapter, I employ a legal review of the
most relevant ATCA case law and how it pertains to the current state of
multinational accountability. Chapters three and four are case studies using
evidence and court documents to recount extensive human rights violations in
indigenous communities in Burma and Nigeria. Next is an analysis of the
evidence and the subsequent ATCA claims that have been made against
Unocal and Royal / Dutch Shell. The final chapter contains my conclusions
regarding the effectiveness of the ATCA, its implications and viability. It also
provides a comparison of the case studies and the conclusions that can be
drawn from each context. These conclusions provide particularly relevant
I
6


information regarding the effectiveness of the ATCA and the larger issue of
accountability.
Literature Review
Globalization
In the simplest of terms, the expansion of the free market economy to
encompass the entire globe over the past quarter century, is a process known
as globalization. The global economy and the institutions governing it are
underscored by the philosophical tenets of the neo-liberal free market system.
Central to this paradigm is the belief that competition is positive and that to
foster competition the market should be free of governmental interference or
regulations. It entails freeing the market of all boundaries and barriers to
enhance the mobility of capital and to facilitate the expansion of markets. The
resulting global economy would be free of regulations, restrictions and tariffs
inhibiting growth and restricting the global movement of goods, services and
capital. This theoretical paradigm is increasingly becoming a global reality
(Goldsmith and Mander, 1996).
The institutionalization of these theoretical principles is ostensibly
designed to facilitate the transformation to a global free market economy. This
process culminated in 1995 during the Uruguay Round of GATT, (General
7


Agreement on Tariffs and Trade) which established the framework for the
World Trade Organization. This system vests the WTO with the authority to
arbitrate international trade disputes. Essentially, it has a global mandate to
arbitrate and legislate the terms of commerce between and among nations.
The Uruguay Round of GATT mandated widespread deregulation,
tremendously impacting the international legal system. The process of
deregulation has been hastened by granting governments and corporations
the right to challenge national and regional trade policies as unfair barriers to
investment. In the case of member nations, if regulations are deemed to
handicap corporate development projects, the WTO is vested to declare
these policies illegal (a process known as cross- deregulation). This nullifies
national laws and supercedes national sovereignty. (Goldsmith and Mander,
1996, 300).
Globalization has resulted in widespread economic transformation from
local and regional self-sufficiency to a largely export-oriented, global,
consumer economy. In physical terms, this entire transformation requires an
international system of transport to facilitate the increased flow of imports and
exports. One of the principles of economic globalization and free trade is that
countries should specialize in producing and exporting a few commodities
that they produce particularly well and import almost everything else from
other countries (Goldsmith and Mander, 1996, 82).
8


Given the relative power of MNCs in the global economy and the
increasing institutionalization of this power, MNCs increasingly shape national
economies as well as the global economy. International competition to
achieve a comparative advantage in attracting multinational corporate
investment, in effect, forces governments to lower labor and environmental
standards across the board. This competition has made it increasingly difficult
for governments to regulate environmental pollution or degradation, child
labor practices, dangerous working conditions, or other potential human or
environmental rights issues.
Edward Goldsmith and Jerry Mander, authors and editors of The Case
Against the Global Economy (1996) present and frame the case against
globalization as viewed by its opponents. The authors and perspectives in this
book represent some of the key concepts and contributions shaping anti-
globalization discourse.
Goldsmith and Mander argue that globalization compels less
developed countries to forfeit what remains of their autonomy with regards to
shaping the internal political economy. The system effectively forces less
developed countries to open their markets to imports and to eliminate trade
barriers. It further forces them to develop and export natural resources and to
encourage investments, regardless of the source. It also mandates the
elimination of regulatory mechanisms that might increase corporate costs,
9


including those that protect human and environmental rights. The overall
effects of globalization, they argue, would be to reduce us all to consumers,
eliminate the ability of peoples to be self-sufficient and it would eradicate the
ability of states to control (to any degree) their own economies and resources.
Opponents like John Powell and S.P. Udayakumar, writers for the
NGO, Global Exchange, claim that the processes of globalization do not
currently incorporate the needs and concerns of the affected populations. The
institutions and systems governing global trade appear to promote economic
development at all costs. The process ensures that the interests of
governments, lending institutions and corporations are represented at all
phases of project development. Opponents further assert that compelling less
developed nations to allow blanket access to markets and resources, while
simultaneously cutting corporate cost by eliminating tariffs and regulations
that protect labor, human and environmental rights, clearly advances
corporate interests (Powell, Udayakumar, 2000,1-3). Further, the WTO has
the enforcement capability to penalize non-complying governments for
attempting to keep protections in place.
Thomas Friedman, Masters of Philosphy of Middle Eastern Studies
from Oxford and 2002 Pulitzer Prize winning columnist for the New York
Times, argues that the world abounds with benefits of the global economy. He
believes that the primary characteristic of globalization is integration, of
10


markets, finance and technology. This has had the practical effect of shrinking
the world, enabling people everywhere to access the same opportunities to
tap into the benefits of globalization.
Similarly, the first chairman of the WTO, Renato Ruggiero believes
that, What the WTO like the GATT before it provides is a force for
increased liberalization within the framework of international law, based on
consensus, with enforcement capacity, so that these economic and
technological changes can unfold in a balanced, equitable and constructive
way (Ruggiero, 1996).
Furthermore, there are many who believe that this economic
expansion has benefited us all. Evidence from some regions suggests that
poverty and deprivation have been alleviated by increased availability of jobs,
as well as overall decreases in the cost of goods and services as a result of
global competition. Globalization proponent, Colombia University professor,
WTO advisor and author, Jagdish Bhagwati claims that globalization has
advanced a broad spectrum of social agendas. In his article, The Human
Face of Globalization, he asserts that it has reduced poverty and child labor
in less developed nations and increased wages in more developed nations.
He further argues that globalization has promoted gender equality, womens
welfare and the quality of the environment. He takes his argument even
11


farther in his assertion that it aids in the development of democracy worldwide
(Bhagwati.2005,1).
The theoretical debate around globalization threatens to obfuscate the
fact that, economic development is not a force of nature, it is a political
process. The decisions that shape these development projects are often
made at the global level, but are actualized at the community level,
evidencing a geographic disconnect. The physical and figurative gap that
exists between the macro level decisions and the micro level reality, provides
no recourse to the peoples who live the reality. The disjointed nature of this
process makes it easy for the institutions controlling it to ignore the real life
tangible effects of their decisions. These institutions, the World Bank, the IMF,
multinational corporations and governments are far removed from the human
impacts of their decisions. Economic liberalization at this macro level has a
ripple effect that resonates all the way down to the micro level, the individual.
The fast-paced evolution of the global economy during the past quarter
century, has resulted in ever-changing roles, legal structures and trade
practices. This evolution has seen rapid development and expansion of
trading blocs, an explosion in the number of non governmental organizations
and their expanding influence as well as increased leverage and
accountability for international lending institutions. It has also spawned the
development and evolution of institutions specifically designed to shape
12


international development, particularly with regards to governments and the
implementation of trade agreements. With such institutions already in place,
incorporating accountability mechanisms and procedures pertaining to
multinational corporations would seem like a natural institutional progression.
The Role of NGOs in Addressing Accountability
for Human Rights Violations
Since the 1940s NGOs have negotiated substantial space for
themselves in the international political system. This space allows them to
contribute to the international discourse on political and economic issues. The
role they assume has enabled them to substantially influence and shape the
framing of issues of international concern. The functions they perform meet
previously unmet needs. NGOs are a uniquely valuable resource in that they
basically exist to fill a gap in civil society.
WWII created a vast new market for NGOs, leaving millions of people
displaced or as refugees. Numerous NGOs arose to provide goods and
services to the victims. The aftermath of WWII evidenced a widespread array
of state-inflicted abuses against humanity, also creating a need for systemic
change. These institutional changes were largely implemented to compel
accountability for these abuses. Moreover, it became necessary to develop
and institutionalize normative standards. Such standards create a reference
13


point for shaping relationships and behaviors as well as assessing
compliance and assigning accountability.
Non-governmental organizations were central to the development of
international human rights as a normative construct. Through their efforts to
institutionalize human rights, they have created a culture of compliance. They
began this work following WWII when they effectively lobbied for the inclusion
of human rights in the institutional framework of the UN. Since then, they
have consistently remained at the forefront of efforts to formalize the role of
human rights in the U.N. system. They have largely compelled the
development of specific instruments and functions to address human rights
violations globally. (Van Tuijl, 2000,618) (Livernash, 1992,3). Moreover,
NGOs have helped to conceptually link economic development with human
rights in the political arena.
Today, while their purposes vary widely, NGOs are still in the business
of filling a need, much of their work is rooted in issues related to either human
rights or development (Van Tuijl, 1999,2).The work of NGOs also varies
widely, as does its scope. NGOs operate at all levels, community, local,
national, regional and international. NGO advocacy takes many forms, in
some cases they mediate between affected populations and the state or the
international community. They have increasingly begun to perform legal
advocacy work, some exist purely to provide legal services or representation.
14


Sometimes they are simply about helping to meet basic social and economic
needs. Frequently they perform the functions of monitoring and documenting
human rights violations. Often their work entails political activism at all levels.
Sometimes it is simply to raising public awareness.
The methodology of NGOs includes disseminating information and
forming networks. The technology explosion has facilitated the global
expansion of both strategies. Information technology has made it possible to
mobilize worldwide political networks almost overnight. (Gamble, 2000,7).
Underlying the growing web of local, regional, national and global NGO
networks is the knowledge that working collectively maximizes their impact
and influence. Networking and communication are mutually reinforcing,
together facilitating this trend towards cooperation.
Increased recognition of common ground and an improved ability to
capitalize on it, has increased the effectiveness of NGOs. Particularly
pertaining to human rights and development, NGOs have increased their
leverage by networking to have a global impact (Livernash, 1992,11).
Moreover, they have played an instrumental role in developing the discourse
of accountability as well as helping to develop methods and mechanisms for
enhancing accountability. Examples of such accountability measures are;
mediation processes and guidelines, public- right- to- know policies or laws
mandating corporate disclosure including objective environmental impact
15


studies, democratic participation of local peoples, corporate charter
revocation and good neighbor projects.
To that end, some NGOs, particularly Earth Rights International (ERI)
and the Center for Constitutional Rights (CCR), have creatively applied the
U.S. Alien Tort Claims Act. CCR has pioneered the use of the ATCA as a
remedy for human rights violations in the modern era. It represented Dolly
Filartiga in the1980 ATCA case that laid the foundation for all subsequent
ATCA cases. Together with other NGOs, CCR and ERI have systematically
established ATCA case law.
Indigenous communities affected by corporate development, frequently
encompass all of these concerns and more. The case studies in chapters
three and four delve into the practical reality of the oil extraction projects in
the Tenasserim region of Burma and Ogoniland in the Rivers State of Nigeria.
They show the wide-ranging impacts of these projects on these indigenous
communities.
Methods
The primary goal of this work is to test my hypothesis that the ATCA is
both effective as a means of holding MNCs accountable and viable for
empowering indigenous peoples to influence extraction projects in their
communities. In addressing these two questions, I will conduct two case
16


studies. The first case study involves indigenous peoples in Burma and their
relationship to Unocal, the primary shareholder in the Yadana pipeline project.
Next, I study the case of the Royal Dutch Shell oil pipeline and refinery in
Nigeria and its impacts on the indigenous Ogoni peoples. The majority of the
evidence presented in these case studies is derived from the resulting court
cases and related documents. I further rely on researcher documentation of
community level assessments and personal accounts.
Burma and Nigeria are arguably the two most relevant contexts within
which to assess the viability of the ATCA. They provide for a longitudinal
analysis in two ways. In each case, the extraction activities, including
preparation and planning, have been in place for a substantial period of time.
Shell initiated its operations in Ogoniland in 1958 and preparations for
Unocals Yadana project began in approximately 1988. Moreover, the
attendant ATCA cases, Doe v. Unocal and Wiwa v. Royal Dutch/Shell, were
initially filed in 1996. The Wiwa case is still unresolved and Doe v. Unocal
was only settled in March 2005. These time frames make it possible to
assess the effectiveness of the ATCA in holding MNCs responsible for human
rights violations in these communities and its viability in empowering these
indigenous communities. Viewing the changes in these communities makes it
possible to assess the local impact of the ATCA to date. Moreover, it is also
possible to make inferences about any changes in corporate attitudes or
17


actions regarding these specific communities and any attempts to
recompense for prior problems or mitigate those in the future.
Potential Problems
I anticipate some difficulties in the research around indigenous and
environmental resistance to development. There is a tendency among state
governments of all stripes to deny or downplay the existence of tension
between development activities and internal resistance to these activities. By
denying such tensions, state governments attempt to portray an image of
political stability to foster corporate and investor confidence.
Furthermore, there is likely to be an inherent bias in the material that
reflects the extremes in these situations. Much of the available information is
reflective of either a corporate agenda at one extreme or an environmental or
indigenous agenda at the other extreme. Negotiating some middle ground in
this quagmire could provide a space in which mediation could lead to
negotiations involving any and all concerned parties.
Additionally, there is a complete absence of field work in my study. As
a result, I have had to rely almost completely on second hand sources.
Furthermore, one inherent limitation to this type of research is the absence of
generalizable results. Performing two case studies, both similarities and
differences acquire a greater degree of validity. Certainly both will generate
18


questions and answers relevant to my hypothesis. Each of these cases offers
a different perspective on the ATCA and the questions of its effectiveness and
viability. Assessing the current state of ATCA, within two different contexts,
will yield both diagnostic and predictive value. This will help to further
determine the necessity of the development or institutionalization of other
accountability mechanisms.
Expected Outcome
I expect to find research showing that the Alien Tort Claims Act is a
valuable tool for addressing corporate culpability in human rights violations. I
also expect to find evidence that it has empowered these indigenous
communities to shape development. I believe that in both contexts the
corporations will have taken steps to mitigate environmental damage and to
minimize violent conflicts within these communities. I am looking for evidence
that the need for violent resistance has abated, evidencing a willingness on
the part of the corporations to work with the communities in addressing their
needs and concerns. I hope to find that over time, the corporations have been
compelled to change their culture and business practices and to acknowledge
the undeniable impacts on the indigenous communities. I also expect to find
significant evidence of the need to systematically incorporate other
accountability mechanisms, well beyond the ATCA.
19


Chapter Outline
Chapter one of this thesis details the composition and literature
pertinent to my hypothesis. Chapter two encompasses the recent history
and evolution of ATCA as a mechanism applicable to corporations. Chapter
three contains the case study on Burma and chapter four contains the case
study on Nigeria. Chapter five will be the forum for drawing larger
conclusions. It will compare and contrast the case studies, make conclusions
about ATCA; its limitations and what gains have been made within it.
Summary
This chapter provides the theoretical foundation for this entire study.
Above all, it submits that the need for corporate accountability is paramount. It
describes the role of some MNCs in the perpetration of human rights abuses
and environmental degradation and examines the impunity that underlies it.
Secondly, it examines the relative powerlessness of indigenous peoples to
shape multinational development projects in their communities and asserts
the need to compel equality. The evidence provided in my case studies will
call into question the integrity of corporate claims of environmental and
community sensibilities.
20


The following pages provide the historical background and contextual
evidence necessary to prove the effectiveness of the Alien Tort Claims Act. I
will address the situations in these Burmese and Nigerian communities
before, during and after ATCA become a factor. This provides the groundwork
to surmise the effects that ATCA has had in these two contexts, in turn
providing the groundwork to make projections regarding its potential to affect
the global context.
j
21


CHAPTER 2
ALIEN TORT CLAIMS ACT (ATCA)
Introduction to the ATCA
The omnipresence of multi-national corporations (MNCs) in every
sector, from retail to restaurants, from factories to oil and mining companies,
attests to the reality of the global political economy. The infrastructure
required to support the massive movement of goods, even to the farthest
reaches of the globe, provides access to a seemingly endless supply of
markets. The expansion of the global marketplace has spawned many social,
cultural, civil, political and environmental issues. The social and
environmental ramifications of economic development have prompted people
to challenge the lack of corporate accountability. There is an apparent lack, in
the international legal system, of any binding method or mechanism to
address corporate accountability. As a result, many have turned to the U.S.
Alien Tort Claims Act (ATCA) to compel such accountability.
This chapter reviews the most significant ATCA cases, the particular
relevance of each and the elements necessary to bring ATCA claims. It will
22


examine the evolution of the ATCA case law that provides the foundation for
its current application. This is followed by a brief overview of the debate
around the application of the ATCA as a mechanism for corporate
accountability. These measures will provide the necessary legal background
to partially test my hypothesis that the ATCA is both effective in the overall
question of accountability for MNCs and viable for empowering communities.
Globally, there has been significant progress in the discourse of
accountability in general, and increasingly its application to multinational
corporations. International human rights norms, particularly those developed
since WWII, have provided a benchmark, shaping the concept of
accountability. The evolution of this discourse has given rise to some
accountability measures or mechanisms. Perhaps the most significant and
comprehensive instrument to date is the United Nations Economic and Social
Councils, Norms on the Responsibilities of Transnational Corporations and
other Business Enterprises with Regard to Human Rights. This instrument
was developed in consultation with numerous global NGOs, corporations,
organizations and governments. However, adherence to the principles set
forth within it is entirely voluntary. In fact, the majority of available
accountability measures are voluntary.
23


Background
The First Judiciary Act of 1789 established the United States judicial
system as well as the Alien Tort Claims Act (ATCA), 28 U.S.C. §1350, both of
which were adopted by the first Congress. The ATCA states, The district
courts shall have original jurisdiction of 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. In other words, this statute provides non U.S. citizens a cause of
action to bring a civil claim against anyone who commits a wrongful act
against them, if it is in violation of international legal norms. This statute has
engendered significant debate and speculation regarding its original intent
and its subsequent application as a mechanism for corporate accountability.
The confusion surrounding ATCA stems from the fact that it has
virtually no legislative history. Congress has taken little action to clarify the
parameters of the law, largely leaving its interpretation to the courts. Since
judicial interpretation of the ATCA has not been a model of consistency, it has
inflamed the speculation. So, rather than becoming more clear, the ATCA has
always been the subject of much educated speculation. In 1795, U.S.
Attorney General Bradford issued a legal opinion clarifying that the ATCA
provides federal courts both the jurisdiction and the cause of action necessary
in these cases. Much later, Judge Edwards (Tel-Oren 726 F .2d at 777, D.C
Circuit, 1984) speculated that the intention of this statute was to ensure that
24


litigation of aliens remain firmly in the realm of federal courts. He contended
that mishandling in state courts could lead to an international incident. (226
F.3d 226, U.S. App, 2000, *47).
In the first 190 years of its existence, it was accompanied by no
legislative action and was only invoked 21 times, resulting in a relative lack of
jurisprudence (Bridgeman, 2003, p.1). The majority of ATCA jurisprudence in
the modern era has occurred since 1980, which marks the beginning of the
current trend to use it as an accountability mechanism for human rights
violations. Following is a review of the three ATCA cases most relevant to its
evolution as a tool for addressing corporate human rights violations. These
reviews also contain a discussion of the reasons each case is relevant to the
application of ATCA in the court cases arising out of Burma and Nigeria, Doe
v. Unocal and Wiwa v. Royal Dutch/Shell.
Filartiqa v. Pena-lrala
In 1980, the Second Circuit Court of Appeals heard Filartiga v. Pena-
lrala. The courts findings in this case set the judicial precedent for applying
the ATCA as an accountability mechanism for human rights violations. The
plaintiffs in this case were Joel and Dolly Filartiga and the defendant was
Americo Pena-lrala, former Inspector General of Police in Asuncion,
Paraguay. The claimants alleged that the kidnapping, detention, torture and
25


resultant death of Joelito Filartiga constituted violations of the U.N. charter,
the U. N. Declaration of Human Rights, the U.N. Declaration Against Torture,
the Supremacy Clause of the U.S. Constitution, and other pertinent treaties
and documents constituting customary international human rights law
(Filartiga v. Pena-lrala, 630 F .2d 876, U.S. Appeals 1980 *7).
In order for the court to assert ATCA jurisdiction in this claim it had to
reach the threshold. This threshold was reached with the courts
determination that torture was a violation of the law of nations. To answer this
question, the court had to identify the sources from which the law of nations
derived. Since the law of nations is largely customary and is not specifically
codified in one comprehensive document, the court employed the Supreme
Courts finding in United States v. Smith, in which these sources were clearly
defined (U.S. v. Smith 18 U.S.(8 Wheat.) 153, 160-61, 5 L. Ed. 57 (1820)).
The sources of international law, according to the Supreme Court of the U.S.,
are the writings of jurists, the general practice or usage of nations and judicial
decisions recognizing and enforcing international law (Filartiga, 630 F.2d 876,
U.S. App 1980, *12).
The Second Circuit Court took the unprecedented step of determining
that international law was to be interpreted and applied as a constantly
evolving system rather than a static one. Thus it is clear that courts must
interpret international law not as it was in 1789, but as it has evolved and
26


exists among civilized nations of the world today (Filartiga, 630 F .2d 876,
U.S. App 1980,*14*15). This was an important clarification for the ATCA since
the law was written in 1789 and had been applied so infrequently as to
provide more questions than answers.
Regarding the initial question before it, the Second Circuit Court of
Appeals drew upon the enumerated sources of international law to provide
the foundation for their finding in Filartiga. We conclude that official torture is
now prohibited by the law of nations. The prohibition is clear and
unambiguous... (630 F.2d 876, U.S. App. 1980 *23). It further found that few
issues in international law are as clear as the consensus against torture.
The Filartiga court raised, without answering, the question of human
rights violations being committed under the auspices of official or state
authority. That is, the finding in Filartiga v. Pena-lrala established a link
between torture and official authority, to be a violation of international human
rights law. This ruling created the issue of whether or not the torture must be
committed by a state actor to establish liability under the ATCA. This question
is frequently revisited in ATCA cases, as it is the crux of whether or not ATCA
liability can attach to multinational corporations regarding the majority of
human rights violations.
This case was of paramount importance in opening the door to the
current genre of ATCA applications. This was the first time a federal district
27


court had asserted jurisdiction in an international case involving official
torture. In recognition of the fundamental importance of the Second Circuit
Courts ruling in Filartiga, in 1991 U.S. Congress passed the Torture Victims
Protection Act, codifying this ATCA development. In September of 2000, The
Second Circuit Court of Appeals in Wiwa v. Royal Dutch Petroleum Co. found
that this legislation was intended to codify the courts findings in Filartiga.
The TVPA...recognizes explicitly what was perhaps implicit in the Act of
1789that the law of nations is incorporated into the law of the United States
and that a violation of the international law of human rights is (at least with
regard to torture) ipso facto a violation of U.S. domestic law (Wiwa v. Royal
Dutch Petroleum Co., 226 F .3d 88, 105 (2d Cir. 2000)).
This finding represented a substantial jurisdictional shift, in that it
recognized that violations of international human rights laws confer a right
upon foreign plaintiffs to seek relief in U.S. courts. The further significance of
this finding was the formal recognition that international law is part and parcel
of domestic common law. These two findings clarified the importance of
adjudicating ATCA claims and in the process recognized the relevance of
international laws to our legal system.
28


Kadic v. Karadzic
The next major milestone in ATCAs evolution as an accountability
mechanism was the Second Circuit Court of Appeals ruling in Kadic v.
Karadzic in 1995. The importance of this ruling cant be overstated, as it
extended the reach of ATCAto include private parties. Its finding that non-
state actors, i.e., private individuals, could be held accountable for violations
of international human rights laws was a major departure from the traditional
view that only states can violate these laws.
The plaintiffs in Kadic v. Karadzic were Croat and Muslim citizens of
Bosnia-Herzogovina who claimed to be victims or representatives of victims.
The charges alleged brutal acts of rape, forced prostitution and impregnation,
genocide, torture and other cruel, inhuman and degrading treatment, sex and
ethnic inequality, summary execution and wrongful death at the hands of
Bosnian-Serb military forces. As the commander of the military, they claimed
that Radovan Karadzic directed his troops to engage in a systematic
genocidal campaign to violate their human rights (Kadic v. Karadzic, 70 F ,3d
232, 1995 U.S. App, Lexis 28826).
The court identified the two key issues to be resolved in this case,
whether some violations of the law of nations can be remedied when
committed by those not acting under the authority of a state; if so, are
29


genocide, war crimes and crimes against humanity among the violations that
do not require state action (Kadic, 70 F .3d 232,1995 U.S App,*4). The
defense argued that ATCA liability could not attach to Karadzic because he
was not a state actor. They charged that the state action requirement couldnt
be met because Srpska wasnt formally a state.
The court did not find it necessary to address the state action
requirement. It found other means by which ATCA liability could attach. It
ruled that the alleged abuses fell into the category of, certain forms of
conduct violate the law of nations whether undertaken by those acting under
the auspices of the state or by private individuals (Kadic, 70 F .3d 232,1995
U.S. App,*14). The court reasoned that certain human rights violations are so
universally condemned that no state action requirement is necessary for
ATCA liability to attach.
Finally the court divided the charges into three different categories;
genocide, war crimes and torture and summary execution, all of which were
found to violate the law of nations. After protracted examination, the court
determined that each alleged charge was a violation of a well-established,
universally recognized norm of international law, or a jus cogens law. Jus
cogens violations are violations of the most serious international laws. In
clarifying the legal understanding of jus cogens laws and determining that the
30


violations at hand fell into that category, the court averted the need to
definitively address the state action requirement.
With these two critical pieces in place, the first, establishing jurisdiction
for human rights violations under the ATCA and the second, establishing that
ATCA was applicable to private parties, it was just a matter of time until
leading ATCA NGOs applied it to MNCs (Bridgeford 2003,1021).
Sosa v. Alvarez-Machain
Likely the most significant development since the laws passage is the
Supreme Court ruling that was issued June 30, 2004. The case in question,
Sosa v. Alvarez-Machain, was filed on behalf of a Mexican doctor who was
allegedly abducted and brought to the U.S. by the U.S. Drug Enforcement
Agency, in 1990. The doctor, Alvarez-Machain, was believed by DEA officials
to be involved in the torture and death of a fellow DEA officer who ended up
in the middle of a Mexican drug cartel. The DEA opted to have Alvarez-
Machain abducted and brought to the U.S. by a group of Mexican nationals
rather than attempt an official extradition. The case against the doctor was
ultimately dismissed. Upon return to his home country he brought a suit under
the ATCA against the U.S government (Alvarez v. Sosa Machain, 124 S. Ct
1239; 159 L. Ed.718; Lexis 4763).
31


The Supreme Courts decision in this case offers some limited
satisfaction for both sides of the ATCA debate. A 6-3 majority of the Supreme
Court found that the ATCA is an appropriate tool for foreign victims of
egregious human rights violations committed by either private parties or state
actors, to seek redress in U.S. courts. The court also ruled that the alleged
violations suffered by Alvarez-Machain did not reach the necessary level to
trigger ATCA liability.
This ruling was a validation of the Alien Tort Claims Act as an
accountability mechanism for some human rights violations. It formalized
much of the ATCA jurisprudence that had developed in the Second, Ninth and
Eleventh Circuits. It was consistent with previous ATCA rulings in its
affirmation that the violations of international law that give rise to liability
under the ATCA are only those that are specific, universal and obligatory.
This language is consistent with the legal definition of jus cogens international
laws. These laws are those that comprise the highest tier of nonderogable
norms incumbent on every nation-state. While this ruling is consistent with
lower court rulings, it clearly closes the door to future ATCA claims regarding
violations of customary international law. Customary international laws
comprise a branch of the law of nations that is largely binding only upon those
voluntary signators. This formally and significantly narrows the scope of the
ATCA to include only the uppermost tier of the law of nations. Among these
32


jus cogens violations are torture, rape, summary execution, genocide and
slave trade.
The U.S. Supreme Courts finding in this case seems to conflict with
the entire history of ATCA jurisprudence on the cause of action question.
Historically, courts have found that the ATCA confers not only personal
jurisdiction, but also provides cause of action, both of which are necessary to
give rise to an ATCA claim. All the necessary legal grounds and alleged facts
to constitute the elements required by the statute must be present to establish
cause of action. The first definitive legal statement regarding the parameters
of ATCA was issued in 1795 by the U.S. Attorney General, in which he stated
that the ATCA provides both cause of action and establishes personal
jurisdiction. In over two hundred years of painstaking deliberation, upon close
examination of this issue, not one court has ever found that the ATCA is
jurisdictional only.( Human Rights First 2004,1). Contrary to two centuries of
jurisprudence, the Supreme Court, in this case, found unequivocally that the
ATCA provides jurisdiction only and does not provide cause of action
Further, the court reasoned that ATCA was intended to apply to only a
few, very specific and narrow offenses. It went on to say that the only torts
that were considered violations of the law of nations and were understood to
give rise to personal liability were those few that were both definite and
actionable (as described in the case notes). It continued this line of
33


reasoning, stating that there are only a modest number of international
offenses with private implications.
The court concluded by arguing for extreme caution when adjudicating
cases alleging violations of international law. It clearly stated that in
recognizing new causes of action, U.S. district courts were overstepping their
bounds. Even when the alleged torts seem to fit the criteria, if it had not
formerly been formally recognized as a violation of universal and obligatory
law, they advised against it. Recognition of new causes of action must be
done in a very conservative manner. The Court continued, saying that the
unintended consequences of making international law violations privately
actionable without express legislative action could be catastrophic.
Elements of an ATCA Claim
The Alien Tort Claims Act grants federal jurisdiction over any civil
action (1) brought by an alien, or foreign citizen (2) for a tort only (3)
committed in violation of the law of nations. All three components must be in
place to give rise to an ATCA claim. Prior to Sosa v. Alvarez-Machain, courts
consistently found that the ATCA provides both the jurisdiction and the cause
of action for aliens to bring tort claims in US courts for violations of
international law.
34


The ATCA allows foreign citizens who believe that their human rights
have been violated to bring a suit in U.S. district courts. Most international
human rights laws are derived from the United Nations Universal Declaration
of Human Rights.( Universal Declaration of Human Rights, G.A. res. 217A
(III), U.N. Doc A/810 at 71 (1948).) The U.N. divides human rights into two
categories, represented in two separate documents. One is the International
Covenant on Economic and Social and Cultural Rights, (G.A.res. 2200A
(XXI), 21 U.N. GAOR Supp.(No.16) at 49, U.N. Doc 66, A/6316 1966. 993
U.N.T.S.3). The other is the International Covenant on Civil and Political
Rights (G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S.171). Most norms derived from these instruments
are voluntarily followed by its signatories. By becoming signatories, a majority
of civilized nations have affirmed the legitimacy of these norms (at least in
principle). Since their codification, these rights have become customary
international law.
ATCA claims must involve violations of international law, either jus
cogens or customary international laws. Federal courts have consistently
granted ATCA jurisdiction for alleged violations of jus cogens laws. Jus
cogens are defined in the Vienna Convention of the Law of Treaties as a
norm accepted and recognized by the international community of states as a
whole as a norm from which no derogation is permitted (Vienna Convention
35


on the Law of Treaties, art.53, May 23,1969, 1155, U.N.T.S.332,8 I.L.M. 679).
To date, courts have determined that jus cogens violations include genocide,
slave trade, summary execution, rape and torture.
Cases alleging violations of customary international law or CIL under
the Alien Tort Claims Act have been far less conclusive than those involving
jus cogens laws. U.S. district courts, in deference to the executive and
legislative branches of government, have been loathe to interpret CIL.
Because this branch of the law of nations is still subject to interpretation and
application, the courts seem to prefer to err on the side of caution.
Customary international laws are primarily derived from international
agreements and treaties. These violations are considered less severe than
jus cogens, thus requiring plaintiffs to satisfy a state action component for
ATCA liability to attach. Basically the charge must allege that the corporation
was complicit with the state in the perpetration of these abuses. The courts
apply different tests to determine if the state action requirement has been
satisfied, thus giving rise to an ATCA claim (Bridgeford, 2003, 1022).
ATCA claims can be raised in U.S. district courts, the law itself confers
jurisdiction for these claims. The Second Circuit Court of Appeals ruling in
Wiwa v Royal Dutch Shell, formalized the jurisdictional component of ATCA
claims. This case shifted the jurisdictional weight of human rights cases to
U.S courts. Prior to this case, no U.S. district court had gone so far as to
36


define U.S. interests to include the enforcement of international human rights
standards. Legal scholar Xavier Fellmeth, believes that prior to the courts
finding in Wiwa, no court had unequivocally pronounced a U.S. interest in the
worldwide enforcement of international human rights norms (Fellmeth,
2002,241). This finding allows courts to give primacy to plaintiffs choice of
venue. Further, it clearly defines U.S. interest in adjudicating cases that allege
violations of international law.
Defendants often attempt to get these cases dismissed on forum non
conveniens grounds, whereby the court must determine the appropriateness
of the venue. Some plaintiffs prefer U.S. courts because they are thought to
be a relatively favorable forum for human rights claims. Defendants frequently
move to have them dismissed for the same reason. Courts make this
determination by systematically weighing public interests (convenience to
government and courts) and private interests (ease of access to witnesses
and documents). In the case of dismissal, it falls to the court to establish that
an adequate alternative forum exists (Fellmeth, 2002, 241-254).
Debate Around Current ATCA Application
Current application of the Alien Tort Claims Act as a mechanism for
holding MNCs accountable for their breaches of international human rights
laws has provoked tremendous opposition. Among ATCAs international and
37


national opponents are the National Foreign Trade Council, NFTC, the U.S.
Chamber of Commerce and the International Chamber of Commerce (Bruno,
2003, 3). Opponents make numerous arguments against the application of
the ATCA to multinational corporations, the most significant of which are
discussed below.
Some argue that this genre of ATCA cases could have a chilling effect
on the global economy. The global political economy is predicated on the
theory of comparative advantage; opponents argue that this trend will place
U.S. businesses at a comparative disadvantage (Bruno, 2003, 7). Moreover,
they argue, it could place countries with questionable human rights records at
a distinct disadvantage when it comes to attracting corporate investment.
Others cite concerns about the ATCAs foreign policy ramifications.
Some have suggested that the ATCA threatens the global war on terror.
Opponents argue that these cases improperly insert U.S. courts into the
realm of international relations. This inappropriate extension of judicial
authority, they believe, threatens to undermine the executive and legislative
branches of government. This could effectively confound the forefathers
intentions relative to the balance of power. Some opponents go so far as to
suggest that, it threatens to provoke a constitutional crisis (Shrage,
2003,154).
38


The third argument against holding MNCs accountable under the
ATCA, is that it will open the door to a flood of litigation. These opponents
argue that the courts will become clogged with ATCA cases and that
companies will be unable to survive the onslaught of legal cases. The reality
clearly contradicts these claims. Fewer than 100 ATCA cases have been filed
since Filartiga, only 24 have been against corporations. Further, only 19
ATCA cases have ever resulted in a finding for damages and no ATCA case
against corporations has ever gone to trial ( Human Rights First, 2004,4).
Proponents of the ATCA as an accountability mechanism applicable to
MNCs believe that this genre of ATCA application can only be beneficial.
They believe that it will provide businesses the necessary incentive to respect
human rights at all levels of their operations. It could serve to make
corporations more cognizant of their business partnerships as well as their
business practices. Regarding concerns about ATCA cases flooding the
courts, the reality is that ATCA cases are exceedingly difficult to bring and the
vast majority of the claims are dismissed. Speaking to foreign policy
concerns, by adjudicating these claims, US courts make a qualitative
statement about the globalization of justice as it pertains to human rights.
Proponents of ATCA argue that these positive effects will improve the US
relationship with communities all over the world, resulting in long term
economic and humanitarian gains.
39


Conclusion
This chapter reviews the most relevant Alien Tort Claims Act
developments as they pertain to corporate accountability for human rights
violations. It analyzes the evolutionary path of ATCA since 1980 which laid
the foundation for applying it to MNCs. It reviews the elements necessary to
bring human rights claims under the ATCA and finally, recounts the strongest
arguments for and against this genre of ATCA application.
This review of ATCA history and the elements necessary to bring a
claim will elucidate the significance of Doe v. Unocal and Wiwa v. Royal
Dutch/Shell series of cases relative to the ATCA. These cases have
compelled U.S. district courts to apply the ATCA to corporate entities,
substantially clarifying the parameters of ATCA case-law. The Filartiga case
was significant because it applied the ATCA to a human rights claim. Kadics
primary relevance was that it extended the reach of ATCA to a private party
and clarified the causes of action under which this was feasible.
Sosa was important for numerous reasons. Legal scholars, legislators,
judges and others have appealed to the Supreme Court to make an ATCA
ruling for decades. This case was particularly significant because it clearly
sets the boundaries for ATCA applications and by doing so will eliminate
40


future ambiguities and inconsistencies in the different circuits relative to ATCA
judgments.
Moreover, the findings in Sosa relative to the cause of action question,
seem to directly contradict ATCA case-law. It had previously and consistently
been determined, at least in the Ninth and Second Circuits, to provide both
cause of action and jurisdiction.
The following cases are particularly pertinent to the question of the
effectiveness and viability of the ATCA relative to corporate accountability and
community empowerment in the context of development. In both of these
communities, tensions reached a critical point in the early nineties and by
1995 had reached crisis proportions. Both claims were initially filed in 1996
and have yet to go to trial. During that time, they have helped shape the
ATCA relative to its current and future application to multinational
corporations. Furthermore, the ATCA has been a factor (theoretically) in
these communities since 1996.
Chapters three and four are similarly arranged. Both contain case
studies including relevant background information followed by a review of the
resulting ATCA case in each instance. The background information includes a
brief history followed by an overview of the relationships between the
corporations, the governments and the resistance in each case. These
chapters also contain a brief overview of the role of two primary NGOs in
41


these cases and the overall evolution of ATCA. They end by drawing
conclusions about the effectiveness of the ATCA in each context. From the
information presented in the rest of the case study, inferences will be made
about the degree to which (if any) ATCA has extracted MNC accountability
and has empowered communities to affect these situations.
42


CHAPTER 3
BURMA: A CASE STUDY
Introduction
This chapter begins with some contextual background to the Yadana
Pipeline Project in the Tenasserim region of Burma. It proceeds to a brief
discussion of Burmas recent history and political-economic climate, which set
the stage for the partnership between Unocal and the Burmese government.
It analyzes this relationship and the communities responses to the Yadana
pipeline project as well as its myriad impacts on the peoples indigenous to the
area.
This is followed by a review of Doe v. Unocal, from its inception in
1996 to the present, and its journey through the U.S. judicial system. Doe v.
Unocal has established significant legal precedent with regards to the use of
ATCA. It is the first case to employ ATCA against a multinational corporation,
thus wielding tremendous ramifications for the global economy. This case
study will provide information relevant to the questions of ATCAs
effectiveness for ensuring corporate accountability and for empowering
indigenous communities to influence these projects.
43


Background
In 1962, the Burmese Socialist Program Party staged a coup detat,
seizing control of the Burmese government. Democratically elected Prime
Minister U Nu was deposed and General Ne Win assumed control,
immediately implementing socialist reforms. Under Ne Wins Burmese way to
Socialism any semblance of freedom and democracy was quickly eradicated
(Dhooge, 1998,4). Further, the potential for economic growth was
squandered by government-imposed isolationism. The economy quickly grew
stagnant, resulting in widespread shortages of food and goods and sky-
rocketing inflation. Economic stagnation combined with political and ethnic
repression led to widespread discontent and fostered persistent demands for
democratic reforms. (Earth Rights International, 2000,14). This organic
movement for democracy culminated on August 8, 1988. Hundreds of
thousands of Burmese citizens staged massive pro-democracy
demonstrations across the country. The military demonstrated its position by
gunning down thousands of demonstrators and arresting thousands of others
(Doe v. Unocal, 110 F. Supp. .2d 1294; 2000 U.S. App Lexis 13327).
44


The following month, after widespread condemnation of these
incidents, the regime announced a coup by the State Law and Order
Restoration Council, SLORC. It rearranged the cabinet, did some minor
purging and decided to open the economy to foreign investments (Earth
Rights International, 2000,14). The first governmental acts undertaken by the
SLORC were to suspend the 1974 constitution and to impose martial law
throughout the country. The regime killed approximately 1,000 people and
arrested thousands of others in the immediate aftermath of the coup
(Amnesty International, 1998, 1).
These incidents set the tone for the regime, which has since become
deeply entrenched, through massive militarization and brutal repression. The
type and scale of repression that exists in Burma is predicated on the
presence of a large and well armed military. Between 1998 and 2001, the
government more than doubled the size of the armed forces, from 175,000 to
400,000 (U.S. Department of State, 2001,1). Moreover, the government
spends approximately forty percent of the annual budget on the military.
According to the U.S. State Department, The SPDC reinforces its rule via a
pervasive security apparatus controlled by military intelligence which sharply
restricts basic, internationally-recognized human rights (U.S. Department of
45


State, 1999,5). The government has financed this endeavor by exploiting the
countrys natural resources.
Following the militarys quashing of the pro-democracy demonstrations
in 1988, the government officially abandoned socialism, instituting limited
market reforms. The primary focus of these economic reforms was to attract
foreign investment. Major logging concessions were sold to Thailand and
permission for unregulated commercial fishing were also sold (U.S.
Department of State, 1999, 6). In 1997, the regime staged another coup on
itself, changing its name from the State Law and Order Restoration Council to
the State Peace and Development Council.
This was the backdrop against which Unocal Corporation partnered
with Burmas SPDC to begin the extraction of natural gas from the Andaman
Sea. This venture has been joined by several other entities. The Moattama
Gas Transportation Company, incorporated in 1994, owns the pipeline and
the project. The shareholders in MGTC are Unocal at 28.6%, French Total
Company at 31.24%, Thailands national oil and gas company, PTT
Exploration and Production Public Company 25.5% and Burmas national oil
and gas company, Myanmar Oil and Gas Enterprise, MOGE, owns the
remaining 15%. The project cost approximately $1.3 billion and includes, a
port facility, offshore platforms, 190 miles of offshore pipeline, 39 miles of
46


onshore pipeline and control facility, roads, bridges and all attendant
infrastructure (Congressional Testimony, 1998, 2).
The State, the Corporation and the Community
The association between Unocal and Burmas State Peace and
Development Council, SPDC, has endured considerable international
pressure. It is likely to be long-term, given that the extraction is projected to
last for thirty years. The international community has implemented a variety of
diplomatic and economic measures to express condemnation of the regime
and the partnership. Measures such as boycotts and sanctions, as well as the
suspension of economic aid from the World Bank and the International
Monetary Fund, have all been employed (U.S. Department of State 1999, 1).
Moreover, numerous companies pulled out of Burma including Eddie Bauer,
Levis, PepsiCo, and Heineken. Other companies, Apple, Motorola and
Kodak, stopped doing business with Burma in light of selective purchasing
laws and other government trade regulations. (Dhooge, 1998, 7).
These measures did not deter Unocal from doing business in Burma.
This became evident in January of 1996, when it was announced that Unocal
had entered into a new contract with the regime. Unocal Myanmar Offshore
Co. Ltd. and Total Myanmar Exploration and Production Ltd. signed a
47


production-sharing contract with Myanmar Oil and Gas Enterprise (MOGE) for
a 4275 mile BlockM8 in the Andaman Sea. Further, these entities have
contracted with Thailands PTT Exploration and Production Co. are investing
an additional $1.2 billion to develop other offshore reserves and necessary
pipeline construction (The Oil and Gas Journal 95; 1997,19).
Establishing a strong partnership was likely the only way to realize the
Yadana pipeline project. Unocal needed the military to secure the region and
Burma needed Unocal to provide the financing to secure the region. As part
of this complementary partnership, the SPDCs contractual obligations were
to provide security, access and labor. The SPDC was further obligated to
provide easements and rights of way (Doe v. Unocal, 110 F. Supp 2d. 1294,
2000, U.S. Dist).
For the Burmese government, its partnership with Unocal has been
largely advantageous, serving multiple purposes. Most importantly, by
investing in a long-term project in Burma, Unocal and Total have conferred
legitimacy on a regime under attack for its illegitimacy. The financial benefits
flow from the pipeline, benefiting all of the partners. The Yadana Pipeline
represents the single largest foreign investment in Burma and is likely to be
Burmas single largest source of revenue, projected at approximately $400
million annually for thirty years (Greer, 1998,34). Regarding the provision of
48


security for the project, court documents maintain that Unocal employees held
daily meetings with the Burmese military. During these meetings, Unocal
provided aerial photos, surveys and maps to direct the military where to
provide security and build infrastructure (Doe v. Unocal, 2002 U.S. App, Lexis
19263 *53).
The Tenasserim Division of Burma, the site of the pipeline project, is
bound on the north by the town of Ye, on the south by Tavoy, on the west by
coastline and offshore islands and in the east by the Thailand /Burmese
border. Peoples indigenous to the region include Karens, Mons and
Tavoyans. These peoples had remained isolated, largely independent and
self-governing following the overthrow of the democratic government. Aside
from occasional military incursions, the regime had largely ignored the
peoples of the Tenasserim region. Beginning in the early 1990s, communities
throughout the region, began to notice an ever-increasing military presence
(Earth Rights International, 2000,16).
To fulfill contractual obligations and meet the goals of the regime,
approximately 10,000 troops were permanently assigned to clear and secure
the pipeline corridor (Dhooge, 1998, 2). This required razing 41 miles of
contiguous rainforest, forcibly relocating 11 villages and burning their
remnants (Electricity Generating Authority of Thailand (EGAT) advertisement
49


in the Bangkok Post, April 17,1995, Total Denial. 5). The relocated villages
were primarily Karen and Mon communities; Karen Shintapi, Chaung So ne,
Paw La Goo, Ya Pu, Lauk Ther and Zin Ba Yuak Pu and Lauk Thein ( Earth
Rights International, 2000, 53).
The Yadana project provided the Burmese regime both the means and
the ends to occupy the region militarily and to pacify the residents. Regarding
the governments campaign to eliminate dissent throughout the pipeline
region, Human Rights Watch and the U.S. State Department reported that the
militarys methods of choice are forced relocation, forced labor and rape (U.S.
Department of State, 2000, 2) (Human Rights Watch, Burma, 1999, 2).
Forcible relocation of villages was an effective method of clearing the
pipeline route, as well as forcing villagers into submission. Villagers reported
that any individuals in the vicinity, who were suspected of having contacts
with rebel groups, were summarily executed (Dhooge, 1998, 2). Furthermore,
during relocation efforts and worker recruitment excursions, there were
widespread reports of systematic raping and pillaging. The Karen Human
Rights Group and the Human Rights Foundation of Monland collected
testimony from hundreds of villagers recounting rapes, torture, forced labor
and murder for resisting orders (Unocal Making a Killing in Burma, 2001).
50


Reports of forced labor pre-date even the formal commencement of
the pipeline project. Villagers were allegedly forced to work on the pipeline in
many capacities, clearing the forest, leveling ground, building headquarters,
military outposts and roads as well as carrying military equipment and
supplies (Doe v. Unocal, 963 F. Supp. 880; U.S. Dist 1997, Lexis, 5094).
These claims were so extensive that in 1996, the International Labor
Organization established a Commission of Inquiry to investigate Burmas
ongoing failure to comply with Convention #29 on Forced Labor, Article 2.
The Commission filed its report on July 2, 1998 stating that Burmas use of
forced labor is the modern day equivalent of slavery (Doe v. Unocal, 110 F.
Supp. 2d 1294, 2000 U.S. Dist, Lexis 13327 *45).
The Karens, Mons and Tavoyans consistently resisted military
incursions into their territories, even prior to the inception of the pipeline
project. They initially met increased military aggression with increased armed
resistance. The Karen National Liberation Army executed a series of attacks
against the project. The first attack on March 7, 1995 was against a convoy of
three trucks carrying armed SLORC soldiers into Karen territory. The Karens
fired a 62 mm followed by a 79mm rocket launcher followed by fire from AK-
47 assault rifles. Five people were killed and eleven injured in this attack
(Earth Rights International, 1998_,2;3).
51


The second offensive, in December of 1995, was against Totals base
camp at Ohn Bin Gwin. Armed villagers attempted to hit the base camp with a
107 mm rocket, but missed the target. Apparently no one was hurt in this
attack. The third attack was also at Totals Ohn Bin Gwin base camp. Three
107 mm rockets were fired at the camp, again there were no casualties,
although there were six injuries (Total Denial. 1998,3-4). One source reports
that in retaliation for these attacks, ten Karen villagers were summarily
executed (Dhooge, 1998,2).
These attacks gave the military the green light to ramp up its security
measures. In April of 1997, the SPDC dispatched approximately 100,000
troops to force the KNU into submission (Dhooge, 1998,6). After a large-
scale offensive against Karen rebels in southeastern Burma, Burmas military
junta is reportedly confident that it has secured the route of a $1.2 billion
dollar pipeline being built in partnership with Unocal and Total (Burma News
Update 29, April 21,1997).
As a result of alleged human rights abuses in conjunction with the
Yadana Pipeline project, Unocal has become the focus of a claim under the
Alien Tort Claims Act. Doe v. Unocal charges that Unocal was complicit with
the Burmese government in perpetrating these violations. Represented by the
Center for Constitutional Rights and Earth Rights International, Burmese
52


villagers are using the Alien Tort Claims Act to elicit accountability for abuses
perpetrated against them.
The ATCA Case: Doe v. Unocal
In September and October of 1996 two ground-breaking lawsuits were
filed against Unocal in the District Court of the Central District of California on
behalf of Burmese citizens. The first suit was initiated by the National
Coalition Government of the Union of Burma, or NCGUB, and the Federation
of Trade Unions of Burma, or FTUB and four Burmese villagers against the
partners in this venture. This suit charged Unocal with vicarious liability in
conscripting labor and other human rights violations during the construction of
the Ye -Tavoy railway, attendant infrastructure to the pipeline project. The
District Court granted Unocals motion to dismiss the bulk of these charges in
November of 1997.
In October of 1996, the second of these two cases, a suit for damages
and injunctive relief, was brought against Unocal by a group of 14 Burmese
citizens, represented by Earth Rights International and the Center for
Constitutional Rights. They allege that Unocal conspired with the SPDC to
perpetrate human rights violations during the execution of the Yadana
Pipeline project. The Burmese military, under contract with Unocal to clear the
pipeline route, to provide security, labor and materials, allegedly committed
53


numerous violations. The charges were brought under the Alien Tort Claims
Act (ATCA), Torture Victims Protection Act (TVPA) and Racketeering
Influenced and Corrupt Organization Act (RICO). The suit charges the
following violations of international law, (1) forced labor (2) crimes against
humanity (3) torture (4) violence against women (5) arbitrary arrest and
detention (6) cruel, unusual and degrading treatment (7) wrongful death and
(8) battery. It also alleges the following violations of California law (1) assault
(2) false imprisonment (3) infliction of emotional distress and (4) negligence
(Doe v. Unocal, 963 F. Supp. 880; U.S. Dist 1997, Lexis 5094).
In March of 1997, Judge Richard Paez of the Central District Court for
the State of California ruled in Doe v. Unocal. He found that the ATCA
granted jurisdiction and the plaintiffs had sufficient cause for ATCA liability to
attach to Unocal. His findings moved the case forward into the discovery
phase. The co- defendant in the case, the Burmese regime, was dismissed
on the grounds of the Foreign Sovereign Immunities Act (Doe, 963 F. Supp.
880; U.S. Dist 1997). The FSIA was passed by Congress to limit jurisdiction
of the federal courts to hear cases against sovereign governments. In
November of 1997, the court found that the two cases against Unocal were
identical with regards to subject matter jurisdiction and the act of state
doctrine and consolidated them (176 F.R.D.329 334 (C.D.Cal 1997).
54


In his ruling, Judge Paez addressed the question of whether the
alleged torts took place with state action. To make this determination, he
employed the joint action test, which holds that private actors become state
actors when they act in concert with the state or its agents (Doe, 963 F. Supp.
880;U.S. Dist 1997, 5094 *28). The state action question is relevant in ATCA
claims against private individuals and corporations. MNCs can be sued as
private individuals for jus cogens violations or as a partner with the state, in
violations that do not reach the jus cogens level.
Following three years of discovery, the case ended up on the docket of
Judge Lew on August 31, 2000 in the Central District Court for the State of
California. He too, found cause to apply state action tests to determine if
ATCA liability existed. He opted to apply both the joint action test and the
more stringent proximate cause test, arguing that it, is appropriate when it is
only the government that has committed the violation and the private
individual is implicated by proximately causing the government violation
(Bridgeman, 2003, 9). The proximate cause test holds that it must be proven
that the private party exercised control over the governments decision to
commit the tort (Doe v. Unocal, 110 F. Supp. 2d 1294; 2000 U.S. Dist, Lexis
13327*41).
55


The court found that the plaintiffs had shown that Unocal had
contracted with the Burmese military to provide security; armed, advised and
transported them and they had certainly benefited from these practices.
Further, he found that Unocal had knowledge of the human rights violations
being committed by the military in conjunction with the pipeline. However,
Judge Lew held that, plaintiffs present no evidence that Unocal participated
in or influenced the militarys unlawful conduct; nor do plaintiffs present
evidence that Unocal conspired with the military to commit the challenged
conduct (Doe, 110 F. Supp. 2d 1294, 2000, 13327 *1307). Thus, he found
no grounds for ATCA liability to attach.
The case was then appealed before the Ninth Circuit Court of Appeals
in September 2002, where the district courts findings were partially upheld
and partially reversed. The higher court affirmed the district courts dismissal
of plaintiffs claims against the Myanmar military and MOGE on the basis of
the Foreign Sovereign Immunities Act (FSIA). It reversed the lower courts
grant of summary judgment on charges of forced labor, rape and torture.
Regarding those claims, the court found that the lower courts application of
the active participation standard was erroneous (Doe v. Unocal, 2002, U.S.
App Lexis 19263).
56


The Ninth Circuit Court of Appeals three-judge panel applied a
different standard. The panel applied an aiding and abetting theory recently
developed in the International Criminal Tribunals for Rwanda and Yugoslavia.
Under this standard, the court held that substantial evidence existed to show
that ATCA liability could attach to Unocal for the companys conduct in
relation to the Myanmar militarys acts of forced labor, murder and rape (Doe
v. Unocal, 2002, U.S. App, Lexis 19263).
The Ninth Circuit Courts findings in this case addressed at length the
issue of state action tests. The state action question was the determining
factor in the Ninth Circuit for private liability to attach to violations of
customary international law. After an extensive examination of the state
action question, the court changed the question. That is, the court determined
that the violations reached the level of jus cogens. This category of violations
is the highest tier and as such requires no state action component to attach
private liability. The court ruled that Unocal was guilty of aiding and abetting
the Burmese military in the modern day equivalent of slavery. By equating this
offense with slavery, the Ninth circuit court found that it reached the jus
cogens level. Furthermore, the court concluded that Unocal provided the
military practical assistance and moral support in the in the perpetration of the
crimes. On this basis, the court found that the case should go to trial.
57


However, in February of 2003, the Ninth Circuit Court of Appeals granted
Unocals motion to re-hear the appeal before an eleven-judge panel. This
decision vacates the former ruling.
In response to the Ninth Circuit Courts findings, plaintiffs attorneys re-
filed claims that had previously been dismissed in California state courts.
They allege that Unocal committed unlawful business practices under
California state law. Defendants petitioned the federal court to reassert
jurisdiction over those claims, but it declined. Unocal then attempted to have
the case dismissed on various grounds and finally moved for summary
judgment.
In June 2002, Judge Victoria Chaney held that there were sufficient grounds
to bind Unocal over for trial. She found that the evidence could show that
since Unocal hired the military to provide security, it is vicariously liable for
human rights violations, breaching California law. The case has since gone
to trial (Doe, 960 F. Supp 880,U.S. Dist 1997,*28). The settlement agreement
that was reached in December of 2004 between Unocal and Burmese
villagers effectively nullifies these court cases.
58


The Role of NGQs
Two lawyers and former Burmese citizen Ha Ksaw Wa, co-founded
Earth Rights International in 1995. ERI is a nongovernmental nonprofit
organization that professes to combine the power of law and the power of
people in defense of human rights and the environment (Total Denial. 1998,
2). The organization specifically addresses the needs of indigenous peoples
in their efforts to protect their communities in the face of development
projects. Currently, their primary geographical focus is the area along the
Thai/Burmese border.
Earth Rights International is largely responsible for building the case
against Unocal. Their field staff has conducted a clandestine investigation.
They began systematically documenting events in the Tenasserim region of
Burma in the early 1990s. Their reports derive from firsthand accounts, i.e.
interviews with eye-witnesses and victims. It is these reports that formed the
basis for the suit, Doe v. Unocal. Moreover, the reports documenting the
experiences of the indigenous Karens, Mons and Tavoyans in relation to the
pipeline, have been published by Earth Rights International in Total Denial
and Total Denial Continues.
ERI has been a vital advocate in publicizing these issues and in
mobilizing global attention to the situation surrounding the Yadana pipeline in
59


Burma. It was at the front of the international movement to isolate Burma and
twice made submissions to the International Labor Organization regarding
ongoing forced labor. Ultimately, the ILO appointed a special rapporteur to
investigate the allegations (Amnesty International, 1998) (110 F. Supp. 2d
1294 *45).
The Center for Constitutional Rights has also been an integral part of
the Doe v. Unocal endeavor. CCRs organizational focus is to provide civil
remedies for international human rights violations. They have provided co-
counsel and worked together with ERI to achieve the best possible outcome
for the plaintiffs.
Conclusion
The NGOs representing the plaintiffs in Doe v. Unocal have been
unrelenting in their efforts to hold Unocal accountable in the U.S. judicial
system for human rights abuses in Burma. The fact that this case continues to
exist after nine years is a testament to their efforts and to the merits of the
case. For a U.S. district court to find that it has jurisdiction over a case
charging a multinational corporation with liability for human rights violations
was a huge step in the evolution of ATCA. Whether the plaintiffs ultimately
60


prevail in this case or not, Doe v. Unocal has been instrumental in the
development of ATCA as an accountability mechanism applicable to MNCs.
CCR and ERI have assumed a leading role in compelling the
development of ATCA jurisprudence as it pertains to human rights violations.
Their legal advocacy has helped to produce incremental changes in the
ATCA case law. Systematically compelling the U.S. judiciary to define the
precise parameters of the ATCA relative to international human rights law has
also driven the global discourse around international development and human
rights abuses.
As to the central question of this study, the ATCAs effectiveness in
compelling multinational corporate accountability and its viability as a tool for
empowerment, certain conclusions can be drawn out of this context. The
ultimate disposition of the court cases is a question that will remain
unanswered. However, there appears to be no question as to the ATCAs
ultimate effectiveness for holding Unocal accountable in this instance. The
Doe v. Unocal series of cases has ultimately led to a financial settlement
between Unocal and the plaintiffs in these cases. The agreement was
tentatively reached in December of 2004 and formalized in March of 2005.
Monetary terms of the details have not been made public. A statement
released by both sides said the agreement would provide compensation for
61


the villagers and provide money to develop programs to improve living
conditions, healthcare and education and protect the rights of people from the
pipeline region (Lifsher, 2005).
This settlement seems to support my hypothesis, that within the
context of the Yadana pipeline project in Burma, the Alien Tort Claims Act has
been effective. Given this resolution, it appears that ATCA has indeed
compelled some corporate accountability. In this case, the terms of the
accountability appear to be largely financial. Unocal paid restitution and
theoretically, helped to put some pieces into place that could serve to improve
the quality of life of these Burmese people.
Regarding the empowerment of the communities, the resolution itself
confers power on the villagers. It remains to be seen if this will yield long-term
change in the dynamics between the corporation and the villagers. The power
shift, temporary though it may be, would seem to imply that Tenasserim
communities now wield some power relative to the pipeline. It also remains to
be seen if the settlement actually confers on these villagers a right to
influence the future of the Yadana project. It could be that the ATCA
empowered these peoples to demand restitution for past torts and that the
scope of this empowerment begins and ends with the settlement. This
62


resolution clearly legitimizes the claims of the plaintiffs, both nationally and
internationally.
Perhaps it will provide some closure to the communities in the
Tenasserim region of Burma, enabling them to look to the future. In theory,
the settlement will help to improve many of the social and economic aspects
of their lives. However, the settlement is not likely to affect the civil and
political reality of these peoples lives. The only parties with the power to
change that, the Burmese government and military, remain well beyond the
reach of any legally binding accountability mechanisms. Even so, it is
possible that the changing dynamics between the corporation and
communities could affect some change in their relationship with the Burmese
government.
Because the details of this agreement remain undisclosed, it leaves
certain questions unanswered. For example, does it contain any references to
environmental rehabilitation? Given the environmental damage the project
has done and its attendant effects on these peoples ways of life, this would
seem to be a relevant issue. It is also unclear whether this agreement
contains any provisions to set boundaries or define the terms of the
relationship between the parties in the future. In lieu of any legally binding
document to constrain its behavior, Unocal may have little incentive to make
63


definitive cultural change. Obviously Unocal will remain in the area as long as
there remains a product to extract, so will the local peoples. It is not likely the
government will change definitively either. This raises questions around the
nature and quality of the future dynamics in this situation.
Following is the case study of Ogoniland, Nigeria and the Royal Dutch/
Shell Transport Co. These situations contain many contextual differences.
They are similar in that the indigenous claimants in both cases have made
ATCA charges against massive multinational oil companies for human rights
abuses. Both are legally represented by CCR and ERI, but the Wiwa case
has played out in the Second Circuit while Doe was in the Ninth Circuit
Courts.
Besides the case of Unocals operations in Burmas Tenasserim
region, Ogoniland is likely the next most relevant context within which to
assess ATCAs effectiveness at the community level. The effects of the ATCA
case on Shells corporate culture and its subsequent relationship with Ogoni
communities can best be inferred by doing a longitudinal assessment. In the
conclusion, it will be possible to make case-specific inferences about the
effectiveness of the ATCA.
64


CHAPTER 4
NIGERIA: A CASE STUDY
Introduction
This chapter begins with some contextual background to the situation
in Ogoniland, Rivers State, Nigeria. It briefly summarizes recent historical
events that shaped the political-economic climate within which the
partnership between Royal Dutch Shell and the Nigerian government evolved.
It discusses the range of impacts that Shells oil extraction activities have had
on the indigenous Ogoni communities, followed by an account of the chain of
events that culminated in an ATCA claim.
Next, is a review of the ATCA case, Wiwa v. Royal Dutch Shell. Since
1996, Wiwa v. Royal Dutch Shell has worked its way through the U.S. District
Court for the Southern District of New York to the Second Circuit Court of
Appeals and back to the District court, where it is currently in the discovery
phase preceding trial. This case has shaped legal precedent around the
adjudication of ATCA claims against multinational corporations. This case
study will provide information and insight relative to determining the
effectiveness of the ATCA for compelling corporate accountability for human
rights violations and empowering communities.
65


Background
Shells relationship with Nigeria predates both the discovery of oil and
national independence. Shell and British colonial authorities formed a joint
venture, Shell Darcy, to begin oil exploration activities during the 1940s.
Since Shells first commercially viable discovery in the Niger Delta in 1958, the
company has extracted $30 billion worth of oil from the delta. Shell formerly
had an exclusive concession for Nigerias petroleum resources. Since the
breakup of that monopoly, it is estimated that Shell still maintains control of
nearly 60% of all oil-bearing land (Kretzmann, 1995,4).
Currently, Royal Dutch Petroleum, a Netherlands company, and Shell
Transport and Trading Company, based in Britain, control the Royal Dutch /
Shell Group, with a Nigerian subsidiary, Shell Nigeria. The National
Petroleum Corporation of Nigeria is the majority shareholder, anywhere
between 51-60%, in all foreign oil ventures in Nigeria (CESR and SERAC,
2002 3).
Nigeria has been ruled by a long string of military dictatorships since
becoming independent in 1960. It is the biggest oil producing country on the
African continent. Oil accounts for 98.5% of all Nigerian exports and provides
80% of the governments revenue (Amnesty International,2004, 5). In the
Niger Delta, there are currently 606 oil fields (246 of which are off-shore),
66


3.000 kilometers of pipelines and 275 flow stations. Of the 1.8 to 2.4 million
barrels of oil produced daily in Nigeria, approximately 90% comes from the
Niger Delta (Adebanwi, 2001,19).
The Niger Delta is home to the worlds third largest contiguous
mangrove forest as well as millions of indigenous peoples. The Ogoni Nation
occupies 404 square miles of the delta in the Rivers State. Approximately
500.000 Ogoni peoples currently reside there. The majority of Ogonis follow
their cultural tradition of deriving their primary subsistence from agriculture
and fishing (Adeola, 2000, 698).
Despite the riches being extracted from their territory, 7 out of 10
people in Ogoniland live on less than $1 per day. This earns them the
dubious distinction of living in absolute poverty per the World Banks
measurement (Amnesty International, 2004, 5). Malnutrition and illness are
pervasive throughout the region. After visiting Ogoniland in 1996, World
Council of Churches observers reported, that there were no piped water
supplies, no good roads, no electricity, no telephones and no proper health
care facilities (Banfield, 1998, 30).
Since the extraction activities commenced in the Niger Delta, Shell has
virtually invaded Ogoni communities and homes. The Land Use Act passed in
1978 (Nigerian Laws Chapter 202) by the Obasanjo regime, grants Nigerians
67


occupancy rights only and the state reserves the right to expropriate land for
mining or oil purposes. This law further entitles the state to any compensation
from land transfers to MNCs, leaving residents with no recourse and no land
(Amnesty International, 2004, 9).
The State, the Corporation and the Community
Not only has Shell expropriated vast amounts of Ogoni territory, over
the course of their operations, they have made them virtually uninhabitable.
The entire ecological landscape of Ogoniland has been laid to waste by oil
spills, hazardous waste dumping, and emissions of toxic gases (Adeola,
2000, 4). The ecological issues resulting from the extraction and refining
processes include 24-7 gas fires resulting in acid rain, oil spillage, unlined
toxic waste pits, ruptured pipelines and frequent pipeline explosions. The
water, soil and air have been so degraded by oil production, that life in
Ogoniland is dangerous for plants, animals and humans (CESR and SERAC,
2002).
The Nigerian Ministry of Petroleums report of official spills (per Shell)
between 1976-1990, shows that of 2976 spills, 18% were attributable to
sabotage and 38% to malfunctioning equipment (Mbidoaka,2004). Poorly
maintained infrastructure leads to corrosion, equipment malfunction and
68


failure. There have long been reports of Shell employees inspecting and
documenting damaged equipment, without fixing it. Perhaps that is
attributable to company policy, which states that no compensation is to be
paid when oil spillage is due to sabotage (Amnesty International, 2004, 37).
By disavowing any responsibility for leaks leading to disastrous results, they
can publicly blame terrorists for sabotage. According to Al Gedicks,
leading researcher and author, in one such incident in October 1998, a leak
flooded a huge region around the village of Jesse, resulting in an explosion
that killed 700 people (Gedicks, 2001,42).
As a result of long-term environmental degradation, social and
economic disenfranchisement and pervasive political oppression, the
Movement for the Survival of the Ogoni Peoples (MOSOP) was formed in
1990. This group, led by author and activist Ken Saro-Wiwa, drew
international attention to the struggles in Ogoniland. Court documents contain
allegations that Ken Saro-Wiwa and MOSOP youth leader John Kpuinen
were repeatedly arrested, detained and tortured by Nigerian police in an
attempt to silence them (Wiwa v. Royal Dutch/ Shell, 226 F .3 d 88, 2000 U.S.
Appeals, Lexis, 23274 *5).
Saro-Wiwa became a highly visible and vocal critic of Shells
operations in Nigeria. In 1992, he addressed the U.N. Commission on Human
69


Rights in Geneva. In 1993, MOSOP organized the first Ogoni Day rally,
which drew approximately 300,000 protestors to Bori (Kretzmann,1995, 2).
This massive demonstration prompted the state to establish the Rivers State
Internal Security Task Force, a military unit dealing exclusively with Ogoni
protests (Gedicks, 2001,45).
As early as 1990, a direct relationship between increased dissent and
increased military activity became apparent. The more visible, vocal and
aggressive Ogoni protests became, the more violent and deadly the
repression became. The military, paramilitary, police, mobile police, security
forces and supernumerary forces were alternately deployed by Shell and the
SPDC to suppress them. Court documents reveal that Shell paid the military
to respond violently to complaints regarding oil spills and protests against
Royal/ Dutch Shell. They further disclosed that Shell requested and paid the
Rivers State Internal Security Task Force to conduct nightly terror raids in
Ogoni communities (Wiwa v. Royal Dutch/ Shell, 226 F .3 d 88, 2000 U.S.
Appeals, Lexis, 23274 *5). During the month of October 1993, these forces
razed 27 villages and displaced 8,000 people (CESR and SERAC, 2002, 4).
MOSOP charged, as early as 1990, that Shell was funding the Nigerian
military and providing them with arms, helicopters and boats. Years later,
70


under duress Shell confirmed that these charges were true (Gedicks, 2000,
49).
Shell ceased operations in Ogoniland in 1993 following massive public
protests. This production cessation dramatically raised the stakes, resulting in
the military occupation of Ogoniland that continues today. It also precipitated
another series of raids in Ogoni communities. According to Human Rights
Watch, These raids were characterized by flagrant human rights abuses,
including extrajudicial executions, indiscriminate shooting, arbitrary arrest and
detention, floggings, rapes, looting and extortion (Human Rights Watch,
1996, 3).
Furthermore, a leaked memo dated May 12, 1994 written by Major
Paul Okuntimo (commander of the Rivers State Internal Security Task Force)
reported, Shell operations still impossible unless ruthless military operations
are undertaken for smooth economic activities to commence and goes on to
recommend, wasting operations coupled with the psychological tactics of
displacement (Kretzmann, 1995,1). (CESR and SERAC, 2002, 4)
(Duodo, 1996).
In May of 1995, Ken Saro-Wiwa and eight other Ogoni leaders were
arrested and charged with the murder of four Ogoni elites. Shell sent out a
press release, following this arrest, charging Wiwa of initiating a secessionist
71


movement and using MOSOP as a front for his groups secessionist activities,
a violation of Nigerias Treason and Treasonable Felony Offenses Decree. On
November 10, a military tribunal tried the defendants, found them guilty and
hanged them. Human Rights Watch monitored the trial, reporting a gross lack
of regard for international legal norms (Mbidoaka, 2004, 2). Plaintiffs in Wiwa
v. Royal Dutch / Shell allege that the charges against the activists were
fabricated to justify executions that were solely intended to silence political
opposition to Shells extraction activities (Wiwa v. Royal Dutch/ Shell, 226 F .3
d 88, 2000 U.S. Appeals, Lexis, 23274 *5).
Members of the international community widely denounced the killings.
The U.S. and Britain recalled their ambassadors, the European Commission
suspended development aid, the OAU or Organization of African Unity
condemned Nigeria and the Commonwealth countries suspended Nigerias
membership (Human Rights Watch, 1996, 3). Shell responded to the news by
announcing its intent to move forward with plans for a $3.6 billion liquefied
natural gas plant and pipeline project in Ogoniland. The World Bank initially
planned to provide funding for the project, but withdrew the funding following
the executions (Adams, 1996, 43).
As a result of these executions, as well as other alleged violations of
international human rights laws, an ATCA claim has been initiated against
72


Shell. The Wiwa family, relatives of other executed victims and various other
victims, allege that Shell was complicit in these and other actions committed
by the military. With representation from Earth Rights International and the
Center for Constitutional Rights, they are utilizing the ATCA to bring a suit
against Shell for alleged human rights violations. This ATCA case represents
their efforts to hold Shell accountable for its role in the human rights abuses
and the environmental destruction of their communities. Further, by making a
claim against Shell, they are demanding global recognition of their struggles
and attempting to leverage global attention and the court case into some
influence in their own communities.
The ATCA Case: Wiwa v. Royal
Dutch Petroleum and Shell Transport
This case was initially filed in1996 in the District Court for the Southern
District of New York, it was amended and re-filed in 1998, then filed under a
different motion in 1999. It was then appealed in the Second Circuit Court of
Appeals in 2000 and remanded back to the District court where it was filed
again in 2002. It charged Royal Dutch / Shell with complicity with the Nigerian
government in the1995 summary executions of Ken Saro-Wiwa, John
Kpuinen and seven other leaders of the Ogoni opposition. Specifically, the
73


plaintiffs alleged that the defendants directed the government in the following
human rights violations; (1) summary execution of Ken Saro- Wiwa and John
Kpuinen (2) crimes against humanity (3) torture with respect to Ken Saro-
Wiwa, John Kpuinen and Jane Doe (4) cruel, inhuman or degrading treatment
(5) arbitrary arrest and detention with respect to Ken Saro-Wiwa, John
Kpuinen and Owens Wiwa (6) violation of the rights to life, liberty and security
of person and peaceful assembly and association with respect to Ken Saro-
Wiwa, John Kpuinen, Owens Wiwa and Jane Doe. In all, there were 16
different causes of action. The families of the victims charge that the oil
company colluded with the Nigerian government to arrest and execute these
men, even bribing witnesses to testify against Wiwa and Kpuinen (Wiwa v
Dutch/Shell,96 Civ 8386 (KMW), 2002 US Dist).
The suit charged the defendants as conspirators in these human rights
violations. Shell was alleged to have funded the Nigerian military and
provided weapons, ammunition and vehicles to repress dissent in Ogoniland.
The nature of the alleged conspiracy was such that Shell Nigeria instigated,
orchestrated, planned and facilitated the alleged abuses (Dhooge, 2003,10).
The case was brought under the ATCA, Torture Victims Protection Act
(TVPA) of 1991 and the Racketeer Influenced and Corrupt Organizations Act
(RICO). It was amended in 1997 to include a Jane Doe who alleges that she
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was shot by Nigerian troops while she was peacefully protesting the
bulldozing of her crops in preparation for the pipeline.
In 1998 the case was filed in the Federal District Court of Southern
New York. Despite Shells limited connections in New York the court
established personal jurisdiction, based on the maintenance of an investor
relations office there. This finding established the possibility that the case
could be heard in the district court. However, in September 1998, Judge
Kimba Wood made a deal with the defendants. The agreement to be bound
by the findings of a British court led to a dismissal on the grounds of forum
non conveniens. Forum non conveniens refers to a judicial determination of
the appropriate forum for any given case. This determination entails weighing
the public and private interests in the location of the trial and determining that
a suitable alternative forum exists. In this case it was decided that England
would be the optimal forum to hear this case (96 Civ 8386 (KMW) (HBP), U.S.
Dist 98, Lexis 23064).
This decision was appealed in the Second Circuit Court of Appeals in
2000, where the district courts decision regarding forum non conveniens was
reversed. Generally, determination of the proper forum is left to the discretion
of district courts, so the reversal in itself was unusual. Moreover, the Second
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Circuits two-pronged reasoning for this reversal represented a major shift in
ATCA jurisprudence.
The first prong of the courts legal reasoning was that the district court
had failed to give proper weight to U.S. interests in adjudicating this case. Its
reasoning, We believe that as a matter of law, in balancing the competing
interests, the district court did not accord proper significance to a choice of
forum by lawful U.S. resident plaintiffs or to the policy interests implicit in
federal statutory law in providing a forum for adjudicating claims of violations
of the law of nations (226 F ,3d 88; 2000 U.S. App.). It clarified U.S. interests
by formally recognizing the link between international law and domestic
common law.
The second prong of the Second Circuit Appeals Court finding in this
case took an unusual approach of, decreasing marginal utility of
convenience (Fellmeth, 2002,13). This represents a shift away from the
tradition, within the context of international human rights law, of balancing the
interests of litigating parties equally. This court reasoned that any costs and
inconvenience to the defendants of litigating in the U.S. were more than offset
by the enormous burden, expense and difficulty the plaintiffs would suffer if
required to begin litigation anew in England (226 F .3d 88; 2000 U.S. App,
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*56). Presumably, under this standard, disparity of resources would hold
wealthier parties to a higher standard of inconvenience than poorer parties.
Upon reversal, the U.S. was found to be the appropriate forum and in
September of 2000, the case was remanded back to the district court for
further proceedings. The defendants petitioned the U.S. Supreme Court to
review the lower courts decision, but the Supreme Court declined to do so,
letting the Second Circuit Courts ruling stand.
In February 2002, Judge Kimba Wood refused the defendants motion
to dismiss on virtually all of the plaintiffs claims. She found that the
allegations against Royal Dutch / Shell and Anderson (the former head of
Shells Nigerian subsidiary), constituted participation in crimes against
humanity, torture, summary execution, arbitrary detention, cruel inhuman and
degrading treatment, and other violations of international law (96 Civ 8386
(KMW) 2002 U.S. Dist). Wood further found that Anderson could be sued
under the TVPA and that the RICO claims could also proceed because the
facts justified the racketeering requirements.
Shell repeatedly and consistently denied that it had worked in
concert with the Nigerian government to repress dissent in Ogoniland or
that they had paid any money to the Nigerian police or military to provide
security. Oil companies operating in Nigeria are compelled to pay for a
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special armed police force, referred to as supernumerary police,
specifically assigned to guarding oil company facilities and infrastructure.
These national security forces are trained by the Nigerian military and
answerable to the government (Davis, 1998,1). In addition, after years of
public denial, Shell was finally forced to admit that it purchased thousand of
guns and millions of rounds of ammunition for its police contingent, known
among the people as the Shell Police (Day, 2005, 2-3).
The Role of NGOs
Since 1980, the Center for Constitutional Rights has pioneered the
field of civil human rights litigation. It has been at the forefront of the effort to
hold multinational corporations liable for human rights violations committed
within the context of their development projects. CCRs evolving cases, Doe
v. Unocal and Wiwa v. Royal Dutch Shell, are among the first ever to consider
holding a MNC liable for human rights violations. Along with their other cases,
CCR is pushing the envelope with regards to holding MNCs responsible for
violations of international human rights law when they work with repressive
regimes to abuse local populations.
Earth Rights International has also been instrumental in bringing this
case. The partnership between the ERI and CCR gives the plaintiffs a broad
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base of support and expertise. Both organizations add a different perspective
to the ATCA litigation. This NGO partnership continues to shape ATCA
precedent with this and other cases. Ultimately, these two NGOs will have
affected the issue of corporate accountability under the ATCA significantly.
Conclusion
Wiwa v. Royal Dutch / Shell is still moving through the U.S. legal
system leaving the ultimate outcome in question. Regardless of its end, this
case has significantly shaped ATCA case law. Whether or not the legal
precedents set in the Wiwa case ultimately result in rulings favorable to
victims in Nigeria remains to be seen. Either way, the ATCA has provided the
instrument and the forum to address the alleged violators of their human
rights.
Regarding the larger question of ATCAs effectiveness for holding
Royal Dutch / Shell accountable and for empowering Ogoni communities to
shape the outcome, to date, it would appear that in this context, it is not. The
current status of Shells operations in Ogoniland coupled with its community
relations rather clearly prove that the ATCA has had absolutely no positive
effect on this situation. In the absence of any conclusive court finding, there
has been no attempt to make any sort of financial compensation to Ogoni
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communities. Further, the environment in the Niger Delta has been so
degraded that it is virtually an ecological dead-zone. Given the Ogoni way of
life, the question of rehabilitating the environment is hugely relevant. To date,
ATCA has not compelled any sort of accountability on Shells part.
Regarding the empowerment of Ogoni communities, the ATCA
appears not to have been even remotely effective. Information coming out of
Ogoniland seems to indicate that for these communities, little has changed.
Despite periodic changes in dictators occasionally resulting in short term
improvements, the regime is as violent, repressive and corrupt as ever.
Amnesty International has reported increasing violence throughout Ogoni
communities in recent years. In 2003, over 1,000 violent deaths occurred in
the Niger Delta, qualifying it as one of the most intense conflict regions in the
world (Amnesty International, 2004, 3).
The reasons for this increasing violence are numerous and
complicated. There are long standing ethnic and tribal tensions that are
certainly a contributing factor. I would submit that this tension is a direct result
of the fact that in Ogoniland, human rights dont exist. Pervasive social and
economic rights abuses coupled with constant and flagrant civil and political
right violations have converged, creating a crisis situation in the Niger Delta.
Regarding social and economic rights, insidious poverty makes the provision
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of basic needs extremely difficult. The economy in the Niger Delta is such that
unemployment is an inescapable reality. Furthermore, civil and political rights
violations are systematic and institutionalized. This includes violent systemic
repression of any and all civil and political dissent. The reality is that most
Niger Delta communities have been terrorized, such that residents arent safe
in their own homes.
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CHAPTER 5
CONCLUSIONS
William F. Schulz, executive director of Amnesty International USA
states it like this, The ATCA serves to simultaneously heal and protect,
providing the potential for closure to the victim, while deterring potential future
abuses (USA :Core Principles of ATCA Upheld, 2004)
Introduction
This chapter is my opportunity to integrate all of the pieces of my
analysis into a body of comprehensive, effective and accurate conclusions.
The preliminary conclusions will afford me further opportunity to expound
upon not only the successes and limitations of the ATCA, but to also
incorporate it into a broader discussion of the current inadequacies inherent in
the law of nations. Chapter two provided the historical backdrop of the ATCA,
review of the necessary elements and the evolution of the ATCA within the
Second and Ninth circuits. It combined this information with a review of the
elements necessary to employ an effective ATCA claim, all of which serve to
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provide a comprehensive foundation upon which to build my case studies and
subsequent analysis.
I have structured this entire thesis upon my hypothesis, in which I
intended to prove that the ATCA is an effective tool for compelling corporate
accountability, as well as for empowering indigenous communities.
Chapters three and four provide case studies of the two most relevant
contexts, in my opinion, within which to examine the efficacy of the ATCA. My
case studies examined the different perspectives and dynamics that I deemed
most necessary to reach my ultimate conclusions. I began with an
examination of the dynamics between the state and the MNC and then
detailing the plethora of effects these relationships have on the indigenous
communities. I further examined the relationship between these indigenous
peoples and their habitats, so as to reach an accurate assessment of the
breadth of the impacts upon their cultures. I further attempted to trace the
evolution of the resistance in each case, from non-violent civil disobedience to
a more destructive, violent and systematic campaign to reclaim their
communities.
The case study chapters proceeded to detail the Alien Tort Claims Act
cases that arose from these contexts. The court cases have been
complicated and lengthy, but both ultimately resulted in tremendous
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advancements in the application of the ATCA to MNCs. They entailed the
subsequent paths of Doe v. Unocal and Wiwa v. Royal Dutch / Shell through
the ninth and second circuits respectively and detailed their overall
evolutionary impacts. The case studies concluded with an update regarding
the current state of affairs in each case. Lastly, they explored the effects of
these court cases with regards to compelling corporate accountability and
community empowerment. I was seeking evidence of financial remuneration,
environmental rehabilitation and community inclusion into the processes,
really any signs of increased transparency or democracy. My ultimate findings
in each case differed somewhat, resulting in what I would have to call a draw.
This chapter begins by comparing and contrasting the contexts of
these situations then proceeds to compare and contrast the parallel journeys
of the court cases through the U.S. judicial system. There is a brief discussion
of the role of non-governmental organizations in the overall evolution of the
ATCA as a mechanism through which to address human rights violations. The
chapter concludes with an evaluation of the ATCAs viability, its successes
and limitations in these specific contexts. It proceeds to some broader, more
general conclusions about the ATCA and about the state of global
accountability for MNCs regarding human and environmental rights abuses.
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Compare and Contrast Context
The contexts within which each of these cases developed were
remarkably similar. Both involved a largely impoverished former colony. Since
independence, the governments of both states had been relatively unstable,
interspersed with a few brief periods of stability. In both situations the existing
government, at the time of the projects inception, was a military dictatorship.
Each government required a financial base to support the military or
paramilitary to perpetuate itself. Both juntas had access to vast oil reserves
within their territories, leading them into a partnership with a multinational oil
company.
Both involve powerful multinational corporations working in partnership
with dictatorial regimes to extract and exploit resources located on indigenous
lands. The militaries employed similar methods to systematically terrorize
these communities. Among their shared methods: arbitrary arrests and
beatings, torture, extortion, forced relocation and burning houses to the
ground, rape and summary execution. In both cases, the MNC supplied the
military with weapons, aerial photos and whatever other logistical support
they needed to facilitate and perpetuate the project.
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In the Tenasserim region of Burma and Ogoniland in Nigeria, the
affected peoples were politically and economically disenfranchised and
powerless relative to the state and MNC. Any leverage that these peoples
might have acquired by employing the ATCA against Unocal and Shell,
seems not to have served their purposes locally. The development projects
within their communities continue, apparently unaffected by either public
opinion or unfavorable ATCA rulings.
In each case, the affected communities initially employed methods of
non-violent resistance. In Nigeria, the Ogonis staged massive rallies, passive
resistance and appealed to the international community to compel a
response. In Burma, villagers attempted to physically resist the relocation of
their villages and the appropriation of their lands as well as making an appeal
to the international community. In time, people in both situations learned that
any efforts, non-violent or otherwise, to resist state and corporate control
would compel a violent response.
As time elapsed and nonviolent resistance failed to affect the process,
the local peoples were driven to employ other methods for expressing their
frustration and anger. These methods include vandalism and destruction of
corporate property as well as staging violent attacks on the facilities or the
security forces guarding them. Particularly when the tactics were violent and
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aggressive, the result was almost always a swift and severe military attack on
their communities. These retaliatory strikes often ended in death and/or
destruction on a large scale.
The most significant difference between the two cases is that the
Ogoni case has advanced much farther than the situation in Burmas
Tenasserim region. This is not to say that Unocal doesnt have the propensity
to evolve into a situation very similar to Nigeria. The Ogonis are facing 47
years of blatant environmental degradation. Between rusty old pipes, many of
which are above ground running through villages and homes, unlined toxic
waste pits, constant gas flares and the resultant acid rain, many parts of
Ogoniland have become ecological dead zones. Shells disregard for
environmental health and the governments failure to impose any regulations,
has resulted in contaminated groundwater and soil, so far beyond anything
the EPA would allow in the US, that nothing can be grown. The air is similarly
contaminated after 47 years of constant gas flares. Shell has launched a
massive public relations campaign lauding their new sense of purpose with
regards to respect for the environment in Nigeria. They have plans to phase
out gas flaring by the year 2008.
The Tenasserim region of Burma has not experienced environmental
degradation to the same degree as Ogoniland. Environmental impact
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assessments were conducted by the corporate partners early in the project.
These documents have not been made public, yet they are frequently quoted
in public relations speeches and documents. The most immediate concerns
raised by independent assessments were the razing of the rainforests to
facilitate the pipeline and permanent, parallel access roads. While the
corporate partners maintain that they disturbed little canopy and that most of
the impact was on shrub vegetation and formerly degraded forest areas,
outside assessments disagree. Opponents claim that these were largely
undisturbed rainforests, containing primarily canopy and a rare and diverse
ecosystem within which numerous indigenous endangered species lived.
After the fact, both sides maintain the righteousness of their claims.
Unocal and Total claim to have rehabilitated the forest around the pipeline.
Opponents argue that this is an overstatement; most of the seedlings will
never see maturity. Further, they claim that the corporations are ignoring the
larger area of environmental degradation caused by the permanent public
access road. Following those concerns are concerns that go hand in hand
with any oil or natural gas extraction project. Among these concerns are
neglected infrastructure and untended oil leaks and spills that could easily
end up in the soil and ground water.
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The relationship between the Nigerian government and Shell, partly by
virtue of it being so long term, has become institutionalized. Communities
throughout the region are well aware of the intermingling of state and
corporate means and ends. The supernumerary forces are used
interchangeably by Shell and the Rivers State police force, summoned by
either or both as needed. They alternately provide security for the state and
the corporation. Further, there is a long-standing tradition, dating as far back
as colonialism, of local elites being employed alternately back and forth
between the Nigerian government and Shell. The two institutions are
interwoven, mutualistic and systematized to such a degree that it matters little
who is the current head of the state.
The connection between the Nigerian government and Shell dates
back to the 1940s. This partnership has survived numerous regime changes,
condemnation from the international community and various other factors.
The violent tactics employed against the Ogoni peoples were apparently
developed and utilized by both parties as mutually enforcing tactics. Courts in
the Wiwa case have found ample evidence supporting the conspiracy theory
introduced by the plaintiffs. There is documentation that Shell and
government officials held meetings to formulate a strategy for dealing with the
MOSOP activists.
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The Yadana pipeline project in Burma, on the other hand, has formally
been in place since about 1990. While these two contexts share certain
similarities, there are clear differences. The relationship between the
Burmese government and military and Unocal is not as systemically
entrenched as is the case in Nigeria. The Burmese military forces had long
standing traditions, like forced labor and forced relocation, which it employed
against the populace as needed. So, in essence the militarys use of violent
tactics to compel compliance pre-dated the inception of the pipeline project.
Its undertaking of the Yadana pipeline project in partnership with Unocal
clearly escalated the use of these tactics. So, forced labor and forced
relocation served multiple purposes that benefited both partners. These
methods repressed dissent and maintained a constant supply of labor,
keeping the project in motion and insuring completion.
The courts have consistently found that Unocal did have some
knowledge of what the military was doing to the peoples in the Tenasserim
Region. There are numerous court documents proving that Unocal executives
were aware of the tactics the military was employing to facilitate the project;
before, during and after the pipeline was completed. To a certain extent this
has proven to be the crux of the Doe v. Unocal series of cases. The courts
have further found evidence of complicity in that Unocal provided logistical
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information and equipment, as well as paying the government to provide
security, easement and labor. The provision of knowing assistance that
Unocal provided, gives rise to the finding of complicity.
Compare and Contrast Court Cases
These two court cases contain more similarities than differences.
Plaintiffs in both cases are represented by counsel provided by the same
nongovernmental organizations. The fact that both ATCA cases were brought
at roughly the same time by the same organizations, could certainly account
for some similarities. Both cases were initially filed in1996, remain active and
both have spawned offshoots.
Doe v. Unocal and Wiwa v. Royal Dutch / Shell have survived several
rounds in the courts, Wiwa is currently slated to go to trial. Their journey
through the district courts, appeals courts and back to the district courts
resulted in significant jurisprudence relative to corporate liability under the
ATCA. Plaintiffs in Doe reached a settlement agreement with Unocal in
March 2005. It remains to be seen whether this will have any effect on the
resolution of Wiwa v. Royal Dutch / Shell.
Both cases allege collusion between a totalitarian government and a
huge multinational corporation. The charges against the governments of
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Nigeria and Burma were dismissed on the grounds of the Foreign Sovereign
Immunities Act. Both cases have established that the MNCs hired the military
to provide security and easements for the projects. They allege that both
corporations summoned security forces regularly and that the corporations
clearly benefited from human rights violations.
The human rights violations with which the defendants are charged are
different. The Wiwa case specifically addresses the deaths of MOSOP
activists as well as a series of other human rights violations preceding the
executions. It further alleges a conspiracy between the state and corporation
to commit these murders for the purposes of eliminating dissent. The Doe
case is largely about forced labor and relocation and other abuses committed
in the course of the extraction activities.
NGO Advocacy
These cases represent huge victories for some non-governmental
organizations. The plaintiffs in Doe v Unocal and Wiwa v Royal Dutch Shell
were represented by counsel from Earth Rights International, ERI and the
Center for Constitutional Rights, CCR. Reflecting the overall trend among
NGOs, CCR and ERI have formed an alliance that combines the strengths
and perspectives of both teams. To a large extent, they are the force currently
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driving the ATCA through the legal system. Purposefully, systematically and
incrementally they have affected the establishment of legal precedent.
Together with other NGOs, they have been instrumental in establishing the
legal foundation of the Alien Tort Claims Act as it applies to human rights
violations. Institutionalization of clearer legal guidelines, as have emerged
from ATCA cases, could have the affect of shaping future business practices
of multinational corporations and state governments.
While this leverage has not served to substantially alter existing
situations, it could prove to be the seeds of change that will aid future victims.
Pursuing Doe v. Unocal, Wiwa v. Royal Dutch Shell and other substantive
ATCA cases has helped to institutionalize international legal norms against
the worst of the worst human rights violations. In light of the Supreme Court
verdict in Sosa v. Alvarez-Machain and the Unocal settlement, it is apparent
that the ATCA is minimally effective, that is its effectiveness is very limited.
This limited efficacy however, does not negate its potential to shape corporate
culture, if only incrementally.
General Conclusions
As globalization has gained momentum and become increasingly well
established, the collateral damage has become undeniable. In contrast,
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international law has evolved relatively slowly, reflecting the difficulties
inherent in achieving a global legal consensus. Such a consensus regarding
the precise legal identity of the multinational corporation is critical to
identifying both rights and responsibilities. Given time, it is likely that
international law and its institutions would evolve to address the full spectrum
of social and environmental impacts of globalization. Despite the reality that
many of the human and environmental impacts of development are
destructive and deadly, they remain largely unaddressed within the existing
framework of norms.
I would submit the evolution of the global economy and its attendant
effects have outstripped the evolution of international human rights law. As a
result, the system contains no remedy or accountability for vast numbers of
human and environmental rights violations. Systemic inadequacy, must not
exempt multinational corporations from being bound to respect international
human rights and environmental standards. Given the potentially devastating
impacts of corporate development projects locally and globally, it is incumbent
upon the global community to develop a coherent and comprehensive system
of accountability.
ATCA opponents argue that the U.S. should not be adjudicating
international human rights law or attempting to regulate multinational
94