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A landmark case

The Unocal case is a breakthrough for foreigners trying to sue multinational corporations for their alleged collaboration with repressive regimes in human rights abuses. NOEL RAJESH writes.

EARTHRIGHTS INTERNATIONAL

Work in progress at the Yadana pipeline project ... modern equivalent of slavery?

UNOCAL CORPORATION, the California-based giant gas-and-petroleum corporation, will face trial in a United States court on charges of forced labour of Burmese people to build the $1.2 billion Yadana Gas Pipeline Project in southern Burma.

On September 18 last year, a panel of the U.S. Ninth Circuit Court of Appeals in Pasadena reversed a previous Federal District Court decision and allowed the groundbreaking human rights lawsuit against Unocal to go forward. In the Doe v. Unocal case, 11 Burmese villagers are suing Unocal for human rights abuses including rape, forced labour and murder during the building of the Yadana gas pipeline project in Burma.

"This is a landmark decision," said Richard L. Herz, an attorney with the non-profit group EarthRights International (ERI), co-counsel in the lawsuit. "In recognising that corporations that aid and abet egregious human rights abuses can be held accountable, the Ninth Circuit has affirmed that U.S. corporations cannot violate international human rights with impunity." The decision said that plaintiffs need only demonstrate that Unocal knowingly assisted the military in the perpetration of the abuses, and that they had done so. The court also found that forced labour such as that employed by the Burmese military on behalf of the Unocal pipeline is the "modern equivalent of slavery".

The ruling stated, "The evidence supports the conclusion that Unocal gave `practical assistance' to the Myanmar Military in subjecting Plaintiffs to these acts of murder and rape. Thus, because Unocal knew that acts of violence would probably be committed, it became liable as an aider and abettor when such acts of violence, — specifically, murder and rape — were in fact committed."

The legal battle began six years ago when Burmese villagers filed a suit in U.S. federal court demanding that Unocal pay millions of dollars in damages for abuses committed by soldiers along the Yadana pipeline. However, in 2000, despite the court finding evidence that "Unocal knew that forced labour was being utilised and that the joint venturers benefited from the practice", the federal judge dismissed the case because the company's conduct did not rise to the level of "active participation" — a liability standard borrowed from the Nuremberg war crimes trials involving the role of German industrialists in the Nazi forced-labour programme.

Lawyers for the Burmese villagers responded by filing a new lawsuit under state law and making many of the same charges in the Superior Court in Los Angeles. In June 2002, the California Superior Court Judge Victoria Chaney's decision held that plaintiffs' claims might proceed to trial. The trial of the California State case is scheduled to start in early 2003. The lawyers for the Burmese villagers also appealed the federal judge's dismissal last year, which led to the ruling by the Ninth Circuit Court on September 18 last year.

Although the Ninth Circuit Court has sent the case back to the lower federal court for trial, the villagers' lawyers said they would ask Superior Court Judge Victoria Gerrard Chaney to apply the new liability standard in the California State trial.

Unocal maintains that its actions are not on trial in the California case and that the company expects to be vindicated of `vicarious liability' charges. Responding to the federal decision, Unocal's lawyer Daniel M. Petrocelli said: "What the case is about is whether a private American company can be held responsible for the actions of a foreign military regime when the company itself didn't do any of the offending conduct."

"No Unocal person participated in any acts of wrongdoing," Petrocelli said. "Unocal does not have, nor ever had, any control over the actions of the Myanmar military. The company does not direct, countenance or condone the violation of any person's human rights, and it certainly did not aid or abet the violation of anyone's human rights. And if that is the standard that is applied in this case, we are confident we will meet that standard."

During the early 1990s, ignoring widespread calls from the Burmese democracy leader Aung San Suu Kyi and pro-democracy groups worldwide for a moratorium on international investment, transnational oil companies Unocal (U.S.) and Total (France) chose to invest in a regime with one of the worst human rights and environmental records in the world.

In 1992, the Burmese military government entered into a joint venture with Unocal and Total to construct a gas pipeline from the Yadana gas fields in Burma's Gulf of Martaban to the Thai border. This represents the single largest foreign investment project in Burma. The Yadana gas revenue is one of the largest sources of foreign capital for the Burmese military government.

The Burmese military regime was contracted by the oil companies to provide "security" for the project. Ever since, the Burmese army has engaged in systematic human rights abuses and environmental degradation in order to fulfil its contractual responsibilities.

The U.S. court accepted the case against Unocal based on extensive documentation including eyewitness accounts of human rights abuses in the pipeline region provided by ERI. Along the Burmese pipeline route, killings, torture, rape and extortion by pipeline security forces have increased sharply since the Yadana Project was initiated.

Many villagers along the pipeline area provided eye-witness descriptions of forced labour: "Battalion No. 273 came in to our village and asked for two porters to go to two places, including one located directly along the pipeline. These people had to go because it was their turn. The soldiers ordered a total of 18 porters from our village tract. The work lasted about 20 days, and they did not get any payment. I know they did not get payment because that was always the case, and it was the same again."

The influx of soldiers in the previously isolated Tenasserim region also caused an increase in illegal hunting, logging, and wildlife trade. The region is one of the largest rainforest tracts left in mainland Southeast Asia, home to wild elephants, tigers, rhinos and great hornbills, to name just a few rare and important species. It is also home to numerous indigenous peoples, including the Mon, Karen, and Tavoyans.

An incriminating piece of evidence is a declassified cable sent from the U.S. Embassy in Rangoon to the U.S. State Department in 1995 that confirms Unocal's relationship with the Burmese military and their collusion in forced labour. Known as the "Robinson Cable", the cable chronicles a meeting between the U.S. embassy staff and Joel Robinson, Unocal's manager for special projects.

According to the cable, Robinson accepts Unocal's relationship with the Burmese military: "On the general issue of the close working relationship between Total/Unocal and the Burmese military, Robinson had no apologies to make. He stated forthrightly that the companies have hired the Burmese military to provide security for the project and pay for this through the Myanmar Oil and Gas Enterprise (MOGE). He said three truckloads of soldiers accompany project officials as they conduct survey work and visit villages. He said Total's security officials meet with military counterparts to inform them of the next day's activities so that soldiers can ensure the area is secure and guard the work perimeter while the survey team goes about its business."

Tyler Giannini of ERI said that the evidence belies Unocal's claims that it is not responsible for the acts of the Burmese military. "When Unocal and Total hire the military, tell them where to go, what to do, and depend on them for the security of their project, they are morally and legally responsible for the abuses that their security forces commit. Unocal was dealing with the devil. Now they will have to answer to a jury," he said.

Doe v. Unocal is the first case in U.S. history in which a corporation will stand trial for human rights abuses committed abroad. Human rights lawyers have viewed the court decision on Unocal as a breakthrough for foreigners seeking to hold multinational corporations accountable for their alleged complicity with repressive regimes in human rights abuses. With at least 10 similar lawsuits pending around the U.S. against multinational corporations, including ChevronTexaco Corp. and Coca-Cola Co., the Unocal court ruling will encourage human rights lawyers to proceed on these cases.

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