Tuesday, February 18, 2003
Ninth Circuit to Decide En Banc Whether Unocal Can Be Sued by Burmese for Human Rights Violations
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals has agreed to decide en banc whether Unocal Corporation can be held liable to Burmese citizens for human rights violations committed by its partners in a pipeline project in the plaintiffs’ homeland.
Chief Judge Mary M. Schroeder, in a brief order Friday, said a majority of the court’s unrecused active judges had agreed the case warranted en banc review. As is the court’s practice, neither the numerical breakdown nor the individual judges’ votes were disclosed.
A three-judge panel, made up of Judges Harry Pregerson, Stephen Reinhardt, and A. Wallace Tashima, had ruled in September that there was evidence from which a reasonable factfinder might infer that Unocal aided the country’s military junta in carrying out a regime of forced labor, rape, and murder in aid of getting the pipeline built.
The company’s involvement, if proven, would subject it to liability under the Alien Tort Claims Act, which allows foreign nationals to sue in U.S. courts for violations of “the law of nations,” Pregerson said in his opinion for the panel.
The panel ruling reinstated portions of two suits that had been dismissed by U.S. District Judge Ronald S.W. Lew. Other portions of the suits had been dismissed earlier by then-District Judge Richard A. Paez, who later was elevated to the Ninth Circuit and recused himself from the en banc vote.
Judges Kim M. Wardlaw and Marsha Berzon also recused themselves.
The suits were filed in 1996 by villagers from the rural Tenasserim region of Burma. The plaintiffs claim that Unocal bears responsibility for the actions of SLORC—the State Law and Order Restoration Committee, now known as the State Peace and Development Committee, through which the junta governs the Southeast Asian nation which it renamed Myanmar.
SLORC allegedly forced the relocation of the plaintiffs’ villages, stole their land and enslaved them to build the oil and natural gas pipeline from the Andaman Sea, through and into Thailand. Opponents of SLORC, including villagers who refused to work on the pipeline and their spouses and children, have been killed, raped, assaulted, and tortured, the plaintiffs claim.
Unocal became involved in the project 10 years ago, purchasing a 28 percent interest from Total S.A., a French oil company that had entered into an agreement with SLORC and Myanmar Oil and Gas Exploration, Burma’s state-owned gas and oil monopoly.
Unocal insists that it was a mere investor in the project, had no control over SLORC or Myanmar Oil, and had no knowledge of human rights abuses at the time.
Total was originally named as a defendant, along with SLORC and Myanmar Oil, but the three were dismissed early on in the case by Paez.
A different Ninth Circuit panel two years ago upheld Paez’s ruling that Total lacked sufficient U.S. contacts to be sued here. The Pregerson panel upheld his ruling that SLORC and Myanmar Oil have sovereign immunity.
Lew took over the case after Paez was elevated. He ruled in August 2000 that while there was evidence suggesting that Unocal knew of, and benefited from, the use of slave labor, there was no evidence of the company’s “active participation” in any human rights violation that would subject it to liability under the Alien Tort Claims Act.
But Pregerson said that neither active participation nor state action was required to impose liability, and that the plaintiffs could prevail by showing “knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime.”
Damages may be awarded under international law for forced labor without proof of state action, the judge insisted, because such labor “is a modern variant of slavery.”
In concluding that the plaintiffs had provided sufficient evidence to survive summary judgment, Pregerson cited internal correspondence, as well as Unocal† communications with its consultants and with groups like Human Rights Watch and Amnesty International, concerning the use of slave labor. The jurist also cited comments allegedly made by Unocal President John Imle at a 1995 meeting with human rights activists at the company’s Los Angeles headquarters.
Imle allegedly complained of damage to the pipeline and told his visitors that “if you threaten the pipeline there’s going to be more military” and that “[i]f forced labor goes hand and glove with the military yes there will be more forced labor.”
The case is Doe v. Unocal Corporation, 00-56603.
Copyright 2003, Metropolitan News Company