Thursday, September 19, 2002
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Ninth Circuit Reinstates Rights Suits Against Unocal Over Burma
By KENNETH OFGANG, Staff Writer/Appellate Courts
Two suits by Burmese citizens, charging Unocal Corporation with responsibility for human rights violations committed by its partners in a pipeline project in the plaintiffs’ homeland, were reinstated in part yesterday by the Ninth U.S. Circuit Court of Appeals.
Judge Harry Pregerson said 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.
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.
Villages Relocated
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 then-U.S. District Judge Richard Paez, since elevated to the Ninth Circuit.
A different Ninth Circuit panel last year upheld Paez’s ruling that Total lacked sufficient U.S. contacts to be sued here. Yesterday’s panel upheld his ruling that SLORC and Myanmar Oil have sovereign immunity.
U.S. District Judge Ronald S.W. 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.
Active Participation
But Pregerson concluded yesterday that neither active participation nor state action was required to impose liability.
“We hold,” the jurist said, “that the standard for aiding and abetting under the ATCA is…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.”
And while crimes such as rape, torture, and summary execution ordinarily cannot be redressed under international law in the absence of state action, the jurist said, an exception exists when they are “committed in furtherance of other crimes like slave trading, genocide or war crimes, which by themselves do not require state action for ATCA liability to attach.”
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.”
Judge A. Wallace Tashima concurred in Pregerson’s opinion. Judge Stephen Reinhardt concurred separately, arguing that Unocal’s liability or non-liability should be determined not under international law, but under such common-law tort principles as agency, joint venture, and reckless disregard.
Local counsel for the plaintiffs included Paul L. Hoffman of Venice’s Schonbrun, Desimome, Seplow, Harris & Hoffman, Dan Stormer and Anne Richardson of Pasadena’s Hadsell & Stormer, Dilan Esper of the Los Angeles firm of Stein & Flugge, and Christopher E. Krafchak and Kenderton S. Lynch III of Krafchak & Associates in Los Angeles.
Unocal was represented by attorneys from Howrey Simon Arnold & White, including Edwin V. Woodsome Jr., D. Barclay Edmundson, David G. Meyer, and Keri R. Curtis of the Los Angeles office.
The case is Doe v. Unocal Corporation, 00-56603.
Copyright 2002, Metropolitan News Company