EarthRights International Sues Corporations for Human Rights Abuses
|Rick Herz '93|
A non-profit organization cofounded by Law School graduates, EarthRights International (ERI) is leading efforts to hold U.S. corporations accountable for human rights abuses committed abroad, with litigation based on a centuries-old law, the Alien Tort Claims Act (ATCA), according to ERI litigation director Rick Herz ’93, who spoke on Earth Day, April 22, at the Law School. Doe v. Unocal, in which ERI serves as co-counsel for a group of Burmese villagers, is setting precedents for the ATCA claims of foreigners affected by the aggressive development policies of U.S. oil and mining companies.
“The law basically is following this first case,” Herz said. “The handwriting for corporations is somewhat on the wall.”
Established by the First U.S. Congress in 1789, ATCA grants jurisdiction to U.S. federal courts over “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.” According to ERI literature, international law violations that are covered by ATCA include torture, extrajudicial killing, forced labor, rape, and genocide. The law was rarely used until 1980, when a Paraguayan woman sued and won a case against a former Paraguayan police inspector general (residing in the United States at the time of the suit) for torturing her brother to death in Paraguay. Since then, dictators such as Ferdinand Marcos and Bosnian-Serb leader Radovan Karadzic have been successfully sued under ATCA. Herz said a good body of law was built under claims filed against foreign government officials.
Beginning in the mid-1990s lawyers began filing ATCA claims against U.S.-based transnational corporations like Unocal, a California energy company that collaborated with the Burmese military and French company Total to build an oil pipeline through Burma. ERI and its co-counselors filed a claim in 1996 that Unocal and its partners hired the notoriously brutal Burmese military despite knowing the military would commit massive abuses on the project’s behalf, abuses that were later acknowledged by a federal appeals court.
Before proceeding with the pipeline, Unocal hired a consultant that accurately predicted the results of involving the Burmese military. Unocal proceeded anyway, Herz said, because of the high profits guaranteed by the pipeline.
“We had all kinds of evidence that Unocal knew what was going to happen.” ERI also gathered information from Burmese victims who fled to the border with Thailand.
In federal district court Unocal argued that international law only applies to a state or state actors, but the judge who initially heard the case held that if a company works with the government, they can be considered a state actor, and that an allegation of forced labor doesn't require state action anyway.
By coincidence the judge was elevated to the Ninth Circuit Court of Appeals, and a new judge “with a very different view of the law” was assigned to the case. Basing his opinion on what Herz called a “misreading” of the Nuremburg Trials, the judge dismissed the case on a summary judgment, holding that the plaintiffs has to show Unocal actively participated in the abuses. Herz said during the Nuremburg Trials that German factory managers who had complied with Nazi demands argued they only worked for the Nazis because they feared for their lives. The Nuremburg Trials decided that this “necessity defense” could only be overruled if active participation with the Nazis could be proved through, for example, expanded production at the factory. When Unocal was thrown out of the federal court, the plaintiff’s counsel appealed the dismissal of the ATCA claims to the U.S. Court of Appeals for the Ninth Circuit, and refiled the California common law claims, which had been dismissed without prejudice in state court. Trial in the state court action begins in September.
On appeal in the federal action, a three judge panel of the Ninth Circuit reversed the district court. Two judges agreed that the trial judge had misread the Nuremburg Trials precedent, concluding that the necessity defense didn't apply and that Unocal could be held liable under international law for aiding and abetting the military. The concurring judge agreed that case should not have been dismissed, but asserted that federal common law standards rather than international law standards apply. To resolve this split, the Ninth Circuit reheard the case in June before an 11-judge en banc panel. In a surprising move, the Justice Department submitted an amicus brief to the en banc panel in support of Unocal, arguing that all of the ATCA cases since 1980 are wrongly decided, and that no human rights claims should proceed because they interfere with U.S. foreign policy. In Herz’s view, “The Justice Department’s position is outrageous — enforcing human rights norms ought to be part and parcel of U.S. foreign policy. In any event, the Ninth Circuit made clear at oral argument they will reject the Justice Department’s argument.”
ERI is also involved in Wiwa v. Royal Dutch Petroleum Co., a case against Shell/Royal Dutch Petroleum Co. for human rights abuses in Nigeria. The Ogoni people, an ethnic minority of Nigeria, had launched massive, peaceful protests against the company’s environmental policies and the lack of development in their community. Although billions of dollars in oil were pumped out of the country, Herz said, the profits were taken by the government or siphoned off by central authorities. As a result of the protests, several Ogoni movement leaders were executed or persecuted, Herz said.
Other ATCA suits currently in federal courts include a case against Chevron Texaco for its involvement in killings in Nigeria and Exxon Mobil for human for human rights abuses in Indonesia, where the company hired the military to protect an oil facility.
“In our hopeful moments, we assume [Unocal] is going to have an impact” on such companies’ business practices, Herz said. He noted that the University divested from Unocal stock in 2001 after a protest started by an undergraduate student. The onslaught of litigation may make corporations realize their vulnerability, but “what we are seeing now is a reaction,” as businesses plot against ATCA.
Katherine Redford and Tyler Giannini founded ERI in 1996 after graduating from the Law School in 1995. Both had studied human rights and environmental issues during their second-year summer at the Thailand border with Burma, where they made the connection that environmental and human rights protection are intertwined, Herz said.
“Environmental degradation is typically an externality that’s put often on people who are otherwise marginalized,” he said, adding that people who protest environmental degradation in the developing world often get shot or have their houses burned to the ground. For more information on ERI and the cases it’s involved in, see www.earthrights.org.