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Posted April 24, 2003
EarthRights International Sues Corporations for Human Rights Abuses

Herz
U.Va. Law alum Rick Herz '93 spoke at an Environmental Law Forum event on Earth Day.

A non-profit organization co-founded 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, because defendants often didn't fight lawsuits.

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 knowingly aided and abetted human rights abuses in Burma by engaging the Burmese military in the pipeline project—abuses that were later acknowledged by a federal appeals court. Engaged by Unocal to secure the pipeline area, the Burmese military forced citizens to clear land for the pipeline's path and build barracks for the troops, and relocated entire villages to make way for the pipeline, Herz said.

Before proceeding with the pipeline, Unocal hired a consultant that accurately predicted the results of involving the Burmese military. Unocal risked it, Herz said, because of the high profits guaranteed by the pipeline.

Because oil and mining companies push into the frontiers of developing countries, "right off the bat it's a situation where there's going to be human rights violations," Herz said. "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. The judge ruled that the plaintiffs had to show Unocal actively participated in the abuses, basing his opinion on what Herz called a "misreading" of the Nuremburg Trials. 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 decided to pursue the tort claims cases simultaneously in state court as well.

The Ninth Circuit Court of Appeals agreed that the judge had misread the Nuremburg Trials precedent: the necessity defense didn't apply to Unocal because they didn't have to produce oil. The appeals court judges ruled that Unocal knowingly aided and abetted abuses, but disagreed over whether international law or federal common law standards in determining the violation should be applied. The Ninth Circuit agreed to hear the case this summer before an 11-judge en banc panel, in effect "erasing the beautiful opinion we had." Herz said he was hopeful that the judges will decide in their favor, because they sent their team a note remarking that the question they were really interested in was whether international or federal common law applied.

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 in oil were pumped out of the country, Herz said, the profits were taken by the government or ciphoned off by central authorities. As a result of the protests, several Ogoni movement leaders were executed or persecuted "in what was clearly a sham trial," Herz said. Shell bribed a witness at the trial, and their logistical support of the military was designed to get the Shell plant—shut down by the protests in the region—back up and running, Herz alleged.

Other ATCA suits currently in federal courts include a case against Exxon Mobil 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.

Herz said he fears a "midnight rider"—a budget bill might also carry tacked-on legislation that eviscerates ATCA. Also, "there's a very real fear of any of these cases going to the Supreme Court…they've had the opportunity at least twice—maybe more."

The Court's general hostility to international law, coupled with the recent academic debate over the constitutionality of ATCA—spurred by a Harvard Law Review article by U.Va. law professor Curtis Bradley and former U.Va. law professor Jack Goldsmith—may bode ill for the law in the nation's highest court. (Ironically, ERI co-founder Katherine Redford wrote a research paper under Goldsmith's guidance about suing Unocal under ATCA. Goldsmith disagreed with the conclusions of the paper, but Herz laughingly reported that she got a very good grade.)

Suspicion of international law may have also influenced the State Department to oppose the claim against Exxon Mobil because it might damage foreign relations with Indonesia, considered a U.S. partner in terrorism, Herz said. But "We don't really have relations with Burma," he added, referring to Unocal. "It's really the pure case." If State Department officials register a preference against the plaintiffs in Unocal, they would probably have similar complaints about cases involving any country.

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.

ERI is "a pretty impressive example of what individuals like yourselves can do with a little entrepreneurial thought and effort," he said. "I hope it's a model that other people can try and imitate."
• Reported by M. Wood

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