U.S. Courts Tackle Foreign Abuses: Energy corporations question “law of nations”

By Jennifer Huang | World Power I: Business & Law

A 215-year-old law originally written to address piracy and crimes abroad against American ambassadors is at the heart of litigation targeting some of the world’s largest energy corporations.

Plaintiffs allege that ExxonMobil, ChevronTexaco, Unocal and Royal Dutch/Shell are responsible for atrocities committed by foreign troops guarding their refineries and facilities overseas.

The corporations say that the lawsuits are without merit, and that such human rights problems are the domain of U.S. foreign policy, not domestic courts.

But a recent Supreme Court ruling may have left the door open for the suits to proceed.

Anticipated ruling

The cases were filed under the Alien Tort Claims Act of 1789, a law giving federal courts jurisdiction over international civil suits brought for violations of “the law of nations or a treaty of the United States.”

Since 1980, the statute has been used successfully to bring huge — if uncollected — judgments against figures such as former Philippines dictator Ferdinand Marcos and the fugitive Bosnian Serb leader Radovan Karadzic.

It survived a major test when, on June 29, the Supreme Court handed down a long-anticipated ruling on Sosa v. Alvarez-Machain.

That case took on the Drug Enforcement Administration-funded kidnapping of Dr. Humberto Alvarez-Machain from Mexico, and his subsequent trial in the U.S. in 1990 for his alleged participation in the torture and murder of one of its agents.

Alvarez-Machain was acquitted and then brought an alien tort suit, claiming that the kidnapping violated the law of nations.

The court ruled against him, but the majority opinion, written by Justice David Souter, found the Alien Tort Claims Act was valid for “a very limited category” including torture, slavery and genocide — what legal scholar Naomi Roht-Arriaza describes as “universally condemned violations.”

“The court in general upheld the statute — what 23 years of lower court decisions have been saying all along,” said Roht-Arriaza, a professor of international human rights at the University of California’s Hastings College of the Law in San Francisco.

Doe v. Unocal

The Alien Torts Claims Act’s first post-Alvarez trial will likely be Doe v. Unocal, a suit alleging the oil corporation is responsible for the enslavement, torture and murder of local villagers by government soldiers guarding the Yadana pipeline project in Myanmar (Burma), a joint venture it joined in 1993.

The complaint was dismissed from federal court in August 2000, but the decision is under appeal with the 9th Circuit Court of Appeals in San Francisco. The court suspended its decision pending the Alvarez decision; lawyers on both sides now await its interpretation of the high court’s ruling.

Terry Collingsworth, lead counsel for the plaintiffs and executive director of the International Labor Rights Fund, said that if the suit is reinstated, it will likely head for trial within the year.

The suit has also been filed at the state level in California, home to Unocal’s corporate headquarters in El Segundo.

The corporation claims that it can’t be held liable for the actions of its subsidiary, and that the case should be dropped.

Company spokesman Barry Lane said that oral arguments scheduled for August 9 will seek to “dismiss the entire case.”

If it survives, the suit will be heard by a jury in Los Angeles.

Doe v. ExxonMobil

In Washington, D.C., ExxonMobil faces a lawsuit alleging that members of the Indonesian military, hired by its affiliate to protect natural gas facilities in the rebellious Aceh province, committed acts of torture, sexual violence, murder and genocide against local citizens.

ExxonMobil says it cannot be held responsible for ongoing violence in the region, where thousands of lives have been lost during 28 years of civil war.

The plaintiffs, a group of Acehnese villagers represented by Collingsworth’s International Labor Rights Fund, have filed as John and Jane Doe due to fears of retribution by troops in the region.

A press release on the ExxonMobil website says that “[t]here is no claim of direct wrongdoing by ExxonMobil,” and that “the plaintiffs seek to use a U.S. court to judge the official acts of the Indonesian government towards its own citizens engaged in a regional rebellion. ”

The company has moved for the suit’s dismissal for a number of reasons, including the “constitutional principle that foreign affairs should be handled by the political branches of the government, not the courts.”

At the request of the court, State Department legal advisor William H. Taft IV wrote a letter evaluating the potential effects of the suit on relations with Indonesia.

He noted that “perceived U.S. ‘interference’ in [Indonesia’s] internal affairs could impair cooperation with the U.S. across the full spectrum of diplomatic initiatives, including counter-terrorism, military and police reform, and economic and judicial reform.”

Judge Louis S. Oberdorfer has delayed ruling on the motion to dismiss for more than two years, but has now requested briefings from both sides, due by the end of August, on how the Alvarez ruling will affect the case.

Wiwa v. Shell

The 1995 hanging of lawyer and activist Ken Saro-Wiwa is the provocation for a wrongful death lawsuit by his son, Ken Wiwa, against Royal Shell Petroleum and the Shell Petroleum Development Company of Nigeria.

The company denies responsibility for the execution, and says it even lobbied the Nigerian government for clemency.

Saro-Wiwa rose to prominence in 1993 as the leader of a protest movement against widespread poverty and industrial pollution.

According to the CIA World Factbook, 60 percent of Nigerians are impoverished, oil pollution has affected “water, air and soil,” and the country in general “has suffered serious damage from oil spills.”

Ethnic tensions, government repression and civil unrest — including oil facility sabotage — only exacerbated the situation, and in 1995 Saro-Wiwa was hanged for murder by the military government of the time, after a trial that sparked international condemnation.

The plaintiff’s complaint (PDF) alleges that the SPDC managing director, Brian Anderson, “employed and/or worked in concert with the Nigerian military regime,” and that he “conspired with the military regime by entering into an agreement to commit wrongful and tortious acts.”

In an email correspondence, Shell spokesman Simon Buerk wrote that “the allegations … are false and without merit. These were tragic events that we carried out by the Nigerian government in power at the time. Shell attempted to persuade the government to grant clemency. We certainly did not encourage acts of violence.”

Shell has moved to have the case dismissed on the grounds that it might interfere with U.S. foreign policy.

If the motion is denied, the plaintiffs’ lawyer, Judith Chomsky of the Center for Constitutional Rights, expects a briefing schedule and possibly a trial in New York City to be set by August.

Bowoto v. Chevron

Unrest in Nigeria led to another case, Bowoto v. Chevron, filed in California in May, 1999. Chomsky again represents the plaintiffs.

The complaint alleges that Chevron personnel, vehicles and arms were used in the killing of protesters on its offshore Parabe platform, and in attacks that destroyed two villages.

On its website, Chevron (now ChevronTexaco) says the Parabe killings were an accident caused by a “scuffle” on the platform.

It moved to have the case dropped, saying that it should be heard in Nigeria, that the crimes did not violate international law, and that the corporation could not be held responsible for actions by its Nigerian subsidiary.

Judge Susan Illston, of the U.S. District Court in San Francisco, denied the motions, and in March 2004 found that ChevronTexaco can be held liable for its subsidiary’s activities.

At issue is the degree of the company’s involvement with the government during the attacks, and thus its liability.

No final trial date has been set.

Aguinda v. Texaco

ChevronTexaco was also sued in 1993 for pollution in Ecuador.

Plaintiffs contend that the company dumped waste in rivers, spread it on roads and burned it openly, causing environmental and health problems such as cancer.

They say it will cost $5 billion to clean up the damage.

A statement on the ChevronTexaco website says that following a $40 million cleanup, “the government of Ecuador released the company any further claims and obligations.”

In October 2002 Judge Jed Rakoff dismissed the case, saying it had “everything to do with Ecuador and nothing to do with the United States,” on the condition that ChevronTexaco submit to the jurisdiction of the Ecuadorian court.

A year later the trial reopened in Ecuador. The plaintiff’s lawyer Cristobal Bonifaz said that the court has denied all of ChevronTexaco’s motions to dismiss.

According to the February 2002 edition of Corporate Legal Times, Judge Alberto Guerra Bastidas has also decided to see all 627 contaminated sites himself, and has appointed his own expert to estimate the cost of cleanup.

Bonifaz said he hopes for a decision in January 2005.

Long Term Goals

Ultimately, lawyers for the plaintiffs in these cases hope for more than sympathetic publicity or huge punitive awards.

Collingsworth says that if corporations make human rights a priority, they can influence the governments they partner with.

He notes that Unocal’s contract with the Myanmar government had “a list of approximately 17 very specific demands that affected their bottom line. It just never mattered to them to add things like, ‘you can’t enslave or brutalize people living along the corridor.’ As soon as oil companies are required to put a clause like that in their contracts, they will, and this kind of practice will stop.”

Barry Lane, spokesperson for Unocal, says the company did insist that the project operate ethically, but questions the feasibility of adding human rights to a contract negotiation.

“How do you propose we write that? And see that it’s enforced? The pipeline [project’s] actions are not contested here,” he said. “Only the actions of the Burmese military are at issue.”

Additional writing by Jon Rochmis and Josh Wilson.