Corporate Human Rights
by David Corn
The Nation magazine, July 15, 2002
With the Bush Administration too often feeling the pain of
its corporate sponsors, and with the Enron scandal (so far) producing
little political fallout or legislative change on Capitol Hill,
advocates of corporate accountability have cause for frustration.
(Martha Stewart is not much consolation.) But in one area corporate
critics can feel encouraged. For several years, a small group
of lawyers and labor advocates has been trying to hold transnational
companies responsible for their actions by suing them in the United
States for abetting and/or benefiting from human rights abuses
overseas. Finally, these corporation chasers are beginning to
see signs of possible success.
In about a dozen cases, attorneys in the United States, on
behalf of villagers, indigenous people and labor leaders overseas,
have filed legal action against large corporations under the Alien
Tort Claims Act (ATCA), a law passed in 1789 that allowed foreigners
to sue one another in US courts. The law was not much used until
1979, when the family of a 1 7-year-old boy tortured and killed
by a Paraguayan policeman successfully employed it to sue the
officer. Afterward, human rights lawyers turned to the act as
a way to address human rights violations conducted or enabled
by multinational firms.
In 1996, for instance, the Washington-based International
Labor Rights Fund (ILRF) filed an ATCA suit against Unocal, an
oil and gas firm, charging that it knowingly used slave labor
to build a pipeline in Burma. The plaintiffs included villagers
who said they were forced at gunpoint to work on the project.
A federal judge dismissed the ATCA lawsuit, arguing that Unocal
did not have direct control over the Burmese military regime,
a partner in the pipeline project. That decision is under appeal,
but, in a legal first, in June a California state judge ordered
Unocal to stand trial. In that trial, in September, the plaintiffs
will argue under state law that partners in a joint venture can
be held responsible for each other's actions. That would be a
blow to Unocal. Evidence in the federal case showed it was well
aware that human rights abuses were committed by the military
regime in relation to the pipeline.
ATCA-wielding lawyers and activists have been going after
corporate malfeasance around the globe. Earlier this year, a case
filed against Shell by EarthRights International and the Center
for Constitutional Rights got a major boost. This lawsuit claims
the oil company is liable for human rights abuses committed by
the Nigerian military against the Ogoni people, who opposed a
Shell pipeline. Shell repeatedly filed motions to dismiss the
case, but in February a federal judge denied these motions and
permitted the case to move into the discovery phase. Now the plaintiffs
can take depositions of Shell officials and review Shell documents.
Texaco was sued in New York by indigenous people of Ecuador,
who charged it with destroying their local environment by dumping
a million gallons of toxic waste into the ecosystem for two decades.
The company's actions, they claim, devastated rainforest areas,
caused an increase in cancer and other diseases and brought several
tribes to the brink of extinction. In March the two sides argued
about whether the case should be dismissed on jurisdictional grounds.
The court has not yet ruled. Two years ago, residents of Bougainville
Island in Papua New Guinea filed a lawsuit in San Francisco against
the London-based Rio Tinto mining firm. The plaintiffs maintained
that the corporation, which took over a company that developed
a mine on the island, was in cahoots with a government that engaged
in human rights abuses and destroyed entire villages in wiping
out local resistance to the project. In March a federal judge
dismissed the lawsuit after the State Department argued that the
case could interfere with an ongoing peace process in Papua New
Guinea. But the judge said the Papua New Guinea government would
have to agree to permit the plaintiffs to file a case there.
In addition to the Unocal case, the ILRF is handling ATCA
lawsuits against Coca-Cola (for allegedly using paramilitary forces
to suppress-violently-union activity in Colombia), Del Monte (for
allegedly employing thugs who tortured union leaders in Guatemala),
DynCorp (for allegedly spraying Ecuadorean farmers and villagers
with toxic chemicals that were supposed to be dumped on coca plants
in Colombia) and the Drummond Company, a mining firm (for allegedly
hiring gunmen to torture, kidnap and murder labor leaders in Colombia).
In a case against ExxonMobil, ILRF contends that Mobil, which
formed a joint-venture natural gas project with the Indonesian
government, paid the Indonesian military for security and that
these troops committed human rights atrocities-including murder
and torture against villagers in the Aceh province.
As these ATCA lawsuits creep forward, corporations here and
abroad have to take notice. A plaintiff's win would compel transnationals
to consider bringing their activities overseas into sync with
international human rights standards. As the Wall Street Journal
noted, a ruling against Unocal-if upheld-"could subject a
long list of US companies to lawsuits in American courts as human
rights groups seek to expand the reach of American tort law to
foreign soil." Already the Street is paying attention. "I've
started getting calls from mutual fund managers," says Terry
Collingsworth, ILRF's executive director. "They tell me that
they cannot base stock recommendations on moral considerations.
But if there is a chance a company could be damaged by a big award
in a trial, its business practices overseas become quite relevant."
That is, "the markets" are watching and waiting-to see
if Third World locals screwed by transnationals can find justice
in courts far from their villages.