Vol. 5 Num 175 Sat. November 20, 2004  

Inside America
Human rights : Can multinationals be held accountable?

In a San Francisco courtroom, a trial is underway that will determine whether a multinational corporation can be held accountable in the US for alleged human rights abuses committed in foreign countries. The test case pits the energy giant Unocal against a group of 14 poor Myanmar villagers and charges that in the 1990s the Myanmar government forced the villagers to help build the $1.7 billion Yadana natural gas pipeline in eastern Myanmar. According to court papers filed by the plaintiffs' lawyers, the Myanmar military forced villagers living along the pipeline to build roads and army camps and carry heavy loads miles through the jungles. The military shot workers who moved too slowly and even used them as human mine sweepers. Unocal hired Myanmar troops to provide protection for the project, but it denies any knowledge of human rights abuses. "Unocal is going to have to stand before a jury of 12 people and defend the despicable conduct which literary destroyed the lives of tens of thousands," said Dan Stormer, one of the plaintiffs' lawyers.

The case illustrates a growing trend in international affairs. It's the age of globalisation, an era where multinationals flock to poor countries to take advantage of the cheap labour that can improve their bottom line. Some acquire such power in those countries that they can influence and even intimidate their governments. And as globalisation gained momentum, little effort has been made to make the multinationals accountable for what they do in interest of profit. But times are changing, thanks to a coalition consisting of plaintiffs from the developing world and aggressive human rights groups such as Oxfam and Amnesty International from the developed world. They are taking multinationals from all over the world to court on the issue of human rights. Consider these flashpoints:

- In November 2002, a lawsuit was filed in New York on behalf of victims of South Africa's former apartheid system against 20 multinationals for "knowingly aiding and abetting the apartheid enterprise." One of the multinationals, IBM, was charged with supplying computers to the South African government that helped create the infamous "pass book" system, which required all black South Africans to carry passes. Relatives of murdered activists fighting for human rights and environmental justice in Nigeria have sued Royal Dutch Shell Petroleum Company and Shell - Transport and Trading Company, its subsidiary, for complicity in alleged human rights violations against the local Ogoni people.

- In court action in Miami, activists with Sinaltrainal, the Colombian food workers trade union, are trying to establish a direct link between Coca Cola and Colombia's powerful paramilitaries, charging that paramilitaries, acting on behalf of the company, killed nine trade union activists in a Colombian Coca Cola bottling plant. Panamco, Coca Cola's bottler in Colombia, has counter-sued Sinaltrainal, but in March 2003, the Miami court ruled that the court case could proceed.

- The battle has even broken out in Iraq where two corporations, CACI International of Arlington, Virginia and Titan Corporation of San Diego, California, are the targets of a class action complaint filed by the New York-based Center for Constitutional Rights on behalf of torture victims in Iraq. The suit charges that the two companies sent to Iraq untrained prisoner interrogators who were involved in torture and abuse. "The interrogation techniques violated the most basics principals of international law and the US courts have been clear that plaintiffs may sue in US court," said Jennie Green, a lawyer for the Center for Constitutional Rights. "The courts must act to prevent such torture from continuing. We strongly believe that the credibility of US claims to abide by the rule of law is at stake." Understandably, the US government and business groups strongly oppose this type of litigation, arguing that if foreign companies are forced to be human rights monitors, they may decide not to establish operations in certain developing counties, thus depriving them of needed investment. "Large jury awards will send a message that if you are going to do business in a country where the government is violating human-rights or labour standards, you may be sued," warns J. Daniel O'Flaherty, a vice-president at the Washington, DC-based National Foreign Trade Council, which represents US exporters. In developing a counter strategy, business groups held a closed-door strategy session in Washington on November 18, 2002, to consider everything from possible legislation to filing a slew of amicus curiae briefs on behalf of defendants in cases. Meanwhile, some companies have lobbied the Justice Department to intervene. In the summer of 2003, the US State Department warned a judge that a case against ExxonMobil Corporation in Indonesia "could potentially disrupt" the fight against terrorism and should be dropped.

The suit against ExonMobil involves human rights abuses that the Indonesian military allegedly committed against residents of province of Aceh, which has a strong separatist movement and where the energy company is extracting over 1.5 million annually in natural gas. Aceh has grown restive during the years of Indonesian rule, with many of its four million mostly poor inhabitants perceiving the Indonesia government as an occupying force plundering the province's natural resources while giving little in return. ExxonMobil has paid units of the Indonesian military to provide protection for its employees and installations, reports indicate. Human rights activists charge that ExxonMobil knew the military was committing torture and other human rights abuses against local residents.

Human rights groups are filing the suits under an obscure statute called the Alien Torts Claims Act (ATCA) of 1789. The statute is just one sentence long and reads: "(The district courts) shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

The statute was only invoked five times the first 100 years, but human rights groups began using it with increasing frequency in the early 1990s. The National Foreign Trade Council estimates that at least 26 cases based on the ATCA are currently in the US courts.

Human rights groups believe ATCA is the most important legal tool they have to restrain multinational behavior because most states don't have laws restraining such behaviour, even though they subscribe to human rights conventions. Still, they received a small setback last September when the US Supreme Court narrowed the scope of lawsuits that can be brought in US courts under the ATCA. The Bush administration and the international business community lobbied the Supreme Court justices to interpret the statute in such a way that the suit could no longer be used as a legal tool by human rights groups. The Supreme Court ruled that law suits will be permitted for violations of international law that have "definite content and acceptance among civilised nations." It gave piracy as an example. Writing for the seven justice majority, David Souter cited lawsuits against Citibank and the Bank of America as examples of suits that did not meet the new standard.

Human rights activists remain upbeat about the decision, believing that the court's ruling will still allow case involving alleged torture and other egregious offences to proceed in the courts. Terry Collingsworth, executive director of the Washington, DC-based International Labor Rights Fund (ILRF) and lead counsel in half a dozen Alien Tort Claims Act (ATCA) cases, praised the US Supreme Court ruling as upholding the Act.

"The decision erases any doubt about the validity of the ATCA for addressing egregious human rights cases, and sends a clear message to multinationals that seek to profit from forced labor and torture of workers and other human rights victims," Collingsworth said.

Natacha Thys, ILRF's assistant general counsel, added that the decision "allows all of our ATCA cases to go forward: Unocal, ExxonMobil, Coca-Cola, Drummond, Occidental, Del Monte, and DaimlerChrysler." The human rights community's aggressive use of the ATCA has, no doubt, put pressure on multinationals and the way they conduct business in developing nations. Activist shareholders have launched resolutions to coincide with ALCA legislation, forcing multinational executives to answer embarrassing questions at annual meetings. This happened, for instance, at a Unocal meeting in 2002, when shareholder activists introduced a proposal that demanded the corporation follow International Labor Organization-sanctioned standards in Myanmar. The meeting adopted the proposal.

Meanwhile, corporations have fled Myanmar. When the tobacco group BAT sold its 60 percent in Rothmans of Pall Mall, Myanmar in November 2003 it became the last United Kingdom multinational to withdraw from Myanmar.

Multinational corporations are facing increasing pressures to change their modus operandi of doing business in the developing world. The bottom profit line is not the only thing they now have to consider as they search the globe for cheap markets. Thanks to the Alien Tort Claims Act, multinationals can no longer ignore calls to improve human rights conditions in host countries.

Ron Chepesiuk is a Visiting Professor of Journalism at Chittigong University and a Research Associate with the National Defense College in Dhaka.