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Burmese Win Appeal in U.S. Alien Tort Case Against Unocal

In a groundbreaking decision on September 18, 2002, a U.S. federal appeals court remanded to trial a case alleging that oil giant Unocal was responsible for human rights abuses committed by Burmese soldiers. Allegedly, soldiers committed the abuses in the course of guarding a gas pipeline project in which Unocal was a partner. The case is set to proceed in the Superior Court of California in February 2003.

The Ninth District Court of Appeals overturned a 2000 ruling by a federal judge that victims of the military’s abuses could not sue the California-based company. In 2000 the judge ruled that while there was evidence that Unocal knew of and benefited from the abuses, there was no evidence of "active participation" in any human rights violation that would subject the company to liability.

The plaintiffs, farmers from the Tenasserim region of Myanmar, or Burma, originally filed their suit in 1996 with the aid of two non-governmental organizations, EarthRights International and the Center for Constitutional Rights. They allege that Unocal directly or indirectly subjected the villagers to abuses while constructing a gas pipeline. The plaintiffs base their claims in part on the Alien Tort Claims Act, 28 U.S.C. Section 1350. The two-century-old law, enacted mainly to combat high seas pirates, had gone little used until a revival in the 1980s, when victims of abuses by foreign governments and militaries successfully used it against defendants living in or visiting the United States. (Read the 1979 complaint filed in Filartiga v. Pena-Irala, the first successful use of the revived ATCA, or read a recent history of the ATCA.)

BACKGROUND

Unocal became involved in the pipeline project a decade ago when it purchased a 28 percent interest from Total S.A., a French oil company that had entered into an agreement with Myanmar’s military government and Myanmar Oil and Gas Exploration, a state-owned monopoly. Construction began in 1992 and the pipeline was completed in 1999. International human rights groups including Amnesty International and Human Rights Watch have reported that during construction Myanmar’s military regime subjected villagers along the pipeline route to forced labor, murder, torture and rape.

Total was originally named as a defendant along with the Myanmar government and Myanmar Oil, but the three were dismissed early in the case. Total was not sufficiently involved in the United States to be sued there, and the Myanmar government and Myanmar Oil had sovereign immunity.
IMPLICATIONS

The Ninth Circuit, with jurisdiction covering much of the western United States, can be overruled only by the U.S. Supreme Court. The ruling is likely to influence courts hearing similar cases against U.S. corporations. Cases are pending against Royal Dutch Shell for alleged abuses committed by the Nigerian Army against the Ogoni people in the oil-rich Niger Delta, against Texaco by indigenous people in Ecuador whose lands have been damaged by oil leaks and toxic waste, and against ExxonMobil by victims of abuses committed by Indonesian security forces in Aceh province.
The Alien Tort Claims Act.

This 1789 act grants jurisdiction to US 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."
Legal Documents
  • Doe v. Unocal Complaint. Filed on behalf of the Burmese plaintiffs by the Center for Constitutional Rights. PDF document.
  • Text of Decision. Ruling by the United States Court of Appeals for the Ninth Circuit in the case of Doe v. Unocal, filed on September 18, 2002. PDF document.
Related Law Review Articles
  • Blumberg, Phillip I. "Asserting Human Rights Against Multinational Corporations Under United States Law: Conceptual and Procedural Problems," 50 Am. J. Comp. L. 493 (Fall 2002).
  • Breed, Logan Michael, "Regulating our 21st-Century Ambassadors: A New Approach to Liability for Human Rights Violations Abroad," 42 Va. J. Int’l L. 1005 (Summer 2002)
  • Harvey, Debra A., "The Alien Tort Statute: International Human Rights Watchdog or Simply ‘Historical Trivia’?," 21 J. Marshall L. Rev. 341 (Winter 1988).
  • Poullaos, Ivan, "The Nature of the Beast: Using the Alien Tort Claims Act to Combat International Human Rights Violations," 80 Wash. U. L.Q. 327 (Spring 2002)
Background

Written October 15, 2002; Last updated August 2007.


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