A New Spin on Fighting for Justice
Nigeria, 1999: Government soldiers, riding in helicopters owned by Chevron Corp., fire on villages opposed to oil operations. Colombia, 1998: The Colombian Air Force, acting in the interest of U.S.-based Occidental Oil, drops a cluster bomb on the village of Santa Domingo. In Burma, government soldiers use rape, murder and torture to silence opposition to a gas pipeline project of California-based Unocal.
High petroleum prices and rising populist anger are ratcheting up human rights pressures along the world's remote pipelines. And from Burmese villagers to Nigerian farmers, Colombian environmentalists to Ecuadorian jungle dwellers, indigenous peoples in poor, resource flush nations are reaching up from the cracks and saying no to globalized oil.
Can they swing at globalized Goliaths without resorting to dangerous and limited tools of the disenfranchised to protest kidnappings and sabotage?
Enter the Alien Tort Claims Act of 1789, a two-century-old U.S. law passed to deal with international piracy and diplomatic rights. A dose of modern lawyering has dusted off ATCA in recent years, buffing it into a powerful human rights tool that offers foreign aliens access to U.S. courts in cases where corporations violate international law. Activists pitch it as a big stick for little folks, one to redress extra-judicial killings, corporate-backed torture, and genocide.
Corporations call the ATCA a faulty vector for greedy lawyers, and their lobbying has set the Bush administration and Capital Hill cronies on a quiet path to kill it.
Old problem, new spin
The law's modern rebirth started in Paraguay, in 1976, with the paintings of Dr. Joel Filartiga, a medical philanthropist and artist whose paintings, according to court documents, "depict the oppression and suffering of the people of Paraguay." On March 29, his 17-year-old son, Joel, was kidnapped by a group of policemen, including an official named Americo Norberto Pena-Irala. According to official court complaint, Pena-Irala tortured Filartiga to death and approximately four hours later summoned Filartiga's sister Dolly out of bed to look at the body, suggesting he was murdered in reprisal for her family's political stances. Pena-Irala subsequently moved to the United States and was sued by the Filartiga family under ATCA. In 1980, the family won a $10 million (but uncollected) judgment. Then, years later, came Bosnia, and a little more evolution for ATCA's new self. In 1995, a U.S. court ruled that Bosnian Serb war criminal Radovan Karadzic did not have be a government official in order to be sued under the law.
Experts say that ruling helped set the legal basis for ATCA's contemporary corporate portfolio, which has come to include suits involving the alleged events in Nigeria (Bowoto v. ChevronTexaco), Colombia (Mujica v. Occidental Petroleum) and Burma (Doe, et al. v. Unocal Corp.). Legal experts say some two dozen corporate cases have been filed, with most being dismissed on procedural grounds. But there has been a win that could put corporations and their insurers on edge. The storm appeared last year when Unocal paid an undisclosed sum (estimated to be at least over $30 million) to settle its suit. Steve Donziger, an attorney involved in an Ecuador-based multimillion dollar environmental lawsuit against Chevron Corp., said the Unocal victory "is a significant precedent that could open the courts to more such suits." He noted that the fact Unocal settled does limit the value of the case as legal precedent.
No doubt other corporations with ATCA baggage, from Union Carbide to Coca Cola to PriceWaterhouse, are watching. Even Big Pharma, the planet's other Economic Goliath, might be nervous. Its ATCA problems are embedded in Abdullahi v. Pfizer, a case in which the company is accused of opening a treatment center at the Infectious Disease Hospital in Kano, Nigeria, after a 1996 outbreak of bacterial meningitis, measles and cholera. The pharmaceutical giant allegedly used the crisis to conduct biomedical research experiments involving Pfizer's antibiotic drug Trovan on Nigerian children. The ATCA has also been used by Holocaust-era slave laborers and victims of South African apartheid.
Once a legal nuisance, the beefing of ATCA as a human rights tool is a thorn for an administration that's naturally adverse to torts, cozy with corporations and sensitive to all things petroleum-related. Unlike the Clintonian take on ATCA, which in amicus, or "friend of the court", briefs in the Karadzic case, supported the law as a key human rights tool, the current administration has attacked. It has repeatedly intervened in ATCA cases (especially involving corporate allies of the administration) "to suggest that they should not go forward based on political and diplomatic considerations, in some cases invoking the war on terrorism as a justification," says Marco Simons, U.S. Legal Director for EarthRights International, a Washington-based group helping spearhead several ATCA cases.
Kenny Bruno, a plantiffs lawyer in the Unocal case, echoed Simons. "Basically the administration has tried to get rid of it on the legal end and the business world has tried to approach Congress to change it," he said. "But legislators and judges recognize that it is an important and an option in some cases for victims of human rights violations."
Despite the desires of big business, in 2004 the Supreme Court said in Sosa v. Alvarez-Machain that ATCA was not to be a "catch all" corporate accountability law but that the door was ajar for egregious cases where acts clearly rise to defy international law.
Bruno and attorneys such as Rick Herz, a plaintiff's lawyer in Chevron's Nigeria case, says the Bush administration's "friend of the court briefs" have gone further than even the business world has asked for. Though corporation interests have not addressed ACTA's application in cases against individuals, says Bruno, the Bush administration has gone "so far as to argue that the whole law has been misapplied for its entire modern history." In Doe v. Unocal, the administration took the position that the ATCA was essentially useless, that it offered no valid vehicle for suing over human rights violations. Furthermore, notes Simons, the lawyers argued that all prior ATCA cases were wrongly decided, reversing the position the government took in Karadzic.
Corporations typically argue that human rights violations are not their doings, but those of governments. That position is reflected in the Bush administration's current legal tack: ask the courts not to recognize certain liability, specifically aiding and abetting, because doing so "could have adverse implications for U.S. foreign policy in the future," says Simons. Such a position would toss most ATCA cases, because direct violations are always committed by state forces, not by oil firms directly. Lawyers are already working to undercut that position. In the Nigerian case, plaintiffs say that even though Nigerian government did the dirty work, the abuses were "instigated, orchestrated, planned and facilitated by Shell Nigeria under the direction of the defendants," who were said to have "provided money, weapons and logistical support to the Nigerian military Ã¢â‚¬Â¦ participated in the fabrication of murder charges Ã¢â‚¬Â¦ and bribed witnesses to give testimony."
The Bush administration's ostensible reason for limiting aiding and abetting liability is filled with oil. Sources close to the Chevron case, for example, say company attorneys are pushing the judge to seek State Department opinion on the potential impact the case could have on foreign relations. Why? If past trend is followed, officials would likely seek the case's dismissal in order to preserve relations between the Washington and Nigeria, one of the world's top oil exporters. Translation: oil is a national interest that supersedes claims of human rights abuse. Though the Bush administration has filed court briefs in other ACTA cases, it has yet to file in the Chevron case.
If the courts don't give them what they want, the ATCA's opponents still have Congressional bank accounts to twist. The National Foreign Trade Council, which represents some of America's largest companies, and the International Chamber of Commerce have done so.
And they may have found sympathetic ears.
In October, Sen. Diane Feinstein proposed then retracted (under human rights fire) a bill that would have essentially gutted the ATCA's corporate potential. Neither Feinstein's office nor Chevron immediately responded to interview requests but Feinstein has received campaign cash from the oil giant, according to OpenSecrets.org. And Earthwatch points out that Sen. John Cornyn, R-Texas, and Rep. Tom Feeney, R-Fla. have introduced bills expressing the congressional position that courts should not be influenced by international law generally.
Even without congressional heat, and some favorable rulings, ATCA cases are tough to win. "It is still a major uphill battle to successfully bring an ATCA case against an American corporation for environmental damage or anything else," said Donziger, the attorney involved in the Ecuadorian lawsuit against Chevron, which began in U.S. courts as an ATCA case but was rejected by courts.
Nonetheless, the Unocal ruling scares big business, and they're likely to turn up the heat on ATCA.
"To use that one limited case as an excuse to assault the law itself shows how desperate American business is to protect itself from any accountability for human rights depredations it might be committing abroad," Donziger added.