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Morris, Alan --- "HIV/AIDS in South Africa: A Crisis Relentlessly Unfolds" [2000] HRightsDef 13; (2000) 9(2) Human Rights Defender 6

The effectiveness of US litigation against MNCs in Burma

H. Knox Thames

After four years of United States of America (US) litigation including two years of discovery, the repressed and persecuted people of Burma have seen little result, despite the best efforts of US attorneys to bring the controlling parties to justice. While the cases snake their way through the US judicial system, the effectiveness of these actions is still far from being realised. In the interim, both the repressive regime of Burma (now Myanmar) and the multinational corporations (MNCs) operating within have not altered their course in the Yadana Gas Pipeline Project. As a result, thousands of people continue to suffer.

Burma, while becoming independent in 1948 from British rule, has only enjoyed democracy for roughly 12 of its 52 years of independence. The current military regime came to power in a 1962 coup, after a brief two-year period of democratic rule. In 1988, after violently quelling protests, killing between 3,000 and 10,000 people, the regime renamed the country Myanmar and itself the State Law and Order Restoration Council (SLORC). While SLORC did allow for democratic elections in 1990, when the outcome was overwhelmingly in favour of the opposition party, SLORC refused to honour the results and arrested many opposition party leaders. In 1997 SLORC changed its name to the State Peace and Development Council, but it was a change in name only. Today, despite the best efforts of human rights activists, the regime persists in its repressive actions, violating, as the UN's Commission on Human Rights Special Rapporteur on Myanmar (April 1999) stated, `the rights to life, physical integrity, freedom of thought, expression, association and movement'. Significantly, the regime continues to impose forced labour on its own citizens, and refuses to abnegate power to the properly elected government.

The reason for the US litigation is based on actions by the US multinational company Unocal Corporation (Unocal). In 1993 it became a partner in a joint venture with the French company Total SA (Total) and the Myanmar Ministry for Oil and Gas Enterprises (MOGE) in the Yadana Gas Pipeline Project. MOGE is wholly owned and operated by SLORC. The goal of the project is to build a pipeline from the natural gas field through Burma into Thailand. In a period of four years, two groups sued these entities in US courts under the Alien Tort Claims Act (ATCA) for violations of the law of nations. The ATCA is a very important US statute allowing prosecution for acts occurring outside the US that violate international law. While creation of the statute occurred as a part of the Judiciary Act of 1789, successful utilisation in human rights cases did not take place until the 1980 case Filartiga v Pena-Irala [1980] USCA2 576; 630 F 2d 876 (2d Cir 1980). The ATCA (28 USC § 1350 (1988)) states, `[t]he 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'. Thus, the ATCA allows for federal subject matter jurisdiction in US courts for cases involving certain violations of international law against a foreign individual.

Based primarily on the ATCA, John Doe I v Unocal Corp 963 F Supp 880 (CD Cal 1997) was brought by farmers from the region most affected by the pipeline project. The class action was brought against Unocal, Total, MOGE, SLORC, Unocal's President John Imle, and Unocal's Chairman and Chief Executive Roger C Beach. Unocal was the only party that responded to the complaint. The 24 April 1997 decision of the District Court was in response to Unocal's motion to dismiss, which found MOGE and SLORC entitled to sovereign immunity under the Federal Sovereignty Immunities Act (at 888) but found subject matter jurisdiction via the ATCA for the remaining defendants (at 883-4).

The second suit, National Coalition Government of the Union of Burma v Unocal Inc 176 FRD 329 (CD Cal 1997), was handled by the same District Court and the same District Judge. Here, four John Doe plaintiffs, with the Federation of Trade Unions of Burma and the National Coalition Government of the Union of Burma, brought action against Unocal and the Yadana Natural Gas Project. The claimants alleged SLORC performed numerous human rights abuses and that Unocal was liable for these violations under the ATCA because of its role as a joint or implied partner in the venture. Implacable, Unocal brought a motion to dismiss. The court ruled that the National Coalition Government did not have standing (at 340), the Trade Federation had limited standing (at 342, 344), but found jurisdiction via the ATCA for the four John Doe injuries (at 348).

Now, four years after their instigation, both suits are still in the early stages of litigation. While being allowed to proceed, the initial rulings have drastically limited the number of defendants, leaving only a US corporation and its officers, and not the government of Myanmar. Consequently, the overall effectiveness is dubious. Without being able to hold the regime directly responsible, any ruling against a MNC will be a hollow victory. While such a holding against a US MNC by a US court will be a historic event, its overall positive impact on the Burmese people will be doubtful. If such a ruling occurs, MNCs outside the reach of US law will simply fill the void so as to reap the future profits from the project. In addition, it will make MNCs hesitant to have their principal place of business in US territory, thus rendering future uses of the ATCA impossible. In the meantime, the people of Burma continue to wait, their lives being seriously disrupted and altered daily. While the eventual results of the US litigation may be positive, its actual effect on those directly harmed will most likely be nil.

H. Knox Thames is a final year student in the Juris Doctoral program, American University's Washington College of Law, and Master's program, American University's School of International Service, Washington DC.