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US Firms Face Suits for Overseas Acts: New Twist on Anti-Pirate Law Blurs Borders, Extends Liability
15 June 2002
Armed with an 18th century law written to imprison pirates, activists are dragging American corporations into court over abuses they allegedly commit abroad.
Some suits charge companies with polluting foreign lands, others with violating human rights. One closely watched case, which tries to link California's Unocal Corp. to alleged forced labor in Burma, may go to trial this September after a judge refused this week to throw it out.
The U.S. activists have yet to win a major victory, but that hasn't deterred them. They want nothing less than a change of corporate behavior around the globe.
"You can move to a lawless place and hope you'll get away with murder there, but you're not going to do it," said Terry Collingsworth, director of the International Labor Rights Fund, which is pursuing the Unocal suit. "If you try, you'll be held liable just as you would if it were in Nevada."
The suits also represent a blurring of borders in the legal world. American judges once were hesitant to step into disputes outside the United States. In the past 20 years, however, they have heard arguments over alleged torture, murder and rape committed in foreign countries.
"We've started to send our law out of the bounds of the United States," said Kal Raustiala, professor of law at UCLA. "It's made the world much more complicated."
Key Ruling Set Stage
Most of the cases rely on a law written in 1789 as the young American republic tried to prosecute pirates. The Alien Tort Claims Act lay dormant for decades until, in 1980, an appeals court ruled that the act allowed foreigners to sue each other in America over charges of breaking international laws or legal norms.
At first, such cases involved individuals accused of such crimes as torture or murder. Now, however, lawyers and activists have used the law to sue companies.
The strategy has not yet won a significant legal victory. Some judges have proved resistant, tossing out cases after deciding they don't belong in American courts. Other courts, however, have allowed such cases to proceed.
Oil firms have become frequent targets. San Francisco's ChevronTexaco Corp, for example, stands accused in two very different cases.
In one, filed against Texaco before its merger with Chevron, the company is blamed for poisoning the environment in Ecuador by dumping hazardous waste as part of oil pumping operations.
The other suit, originally filed against a premerger Chevron, seeks to hold the company responsible for both the death of protesters who occupied a Nigerian oil drilling platform in 1998 and attacks on residents of two Nigerian villages in 1999. The protesters were shot and killed by Nigerian security forces ferried to the scene in helicopters used by the joint venture that ran the platform.
Both cases involve projects of ChevronTexaco subsidiaries, rather than the parent company itself. But lawyers and activists say responsibility for alleged misdeeds must rest with the parent corporation and should be pursued in the country that corporation calls home.
Suits Aimed At Parent Company
"The whole point of these cases is not just to hold some far-flung subsidiary responsible," said San Francisco lawyer Cindy Cohn, one of several attorneys working on the Nigeria case. "The parent company lives here. You sue the defendant where the defendant lives."
Cohn has more pressing reasons for pushing her case in America. Nigeria's legal system lacks the political independence needed for a balanced, impartial trial, she said.
"Our clients couldn't get a fair shake in Nigerian courts," she said.
ChevronTexaco spokesman Fred Gorell said that while the company regrets the loss of life in Nigeria, its subsidiary's employees did nothing wrong and only called for help from law enforcement after three days of negotiations with the protesters.
The company also objects to trying the lawsuits in America. Speaking of the Ecuadoran case, company spokesman Chris Gidez said that pursuing the case here instead of Ecuador makes little sense.
"The operations are there," he said. "The evidence is there. The plaintiffs are there. To think that a U.S. jury could manage this litigation when everything is going to be in another language and everything is in Ecuador is preposterous."
U.S. District Judge Jed Rakoff last year agreed, dismissing the suit, he wrote, "Because the record establishes overwhelmingly that these cases have everything to do with Ecuador and nothing to do with the United States." The plaintiffs have appealed.
Oil companies aren't the only firms coming under scrutiny. Activists also are pursuing a class- action suit against some of the nation's most prominent clothing retailers - including Gap Inc. and Levi Strauss & Co. - alleging sweatshop conditions in clothing factories on Saipan, part of the U.S. Commonwealth of the Northern Mariana Islands. That case differs from others, however, in that the supposed abuses took place in a U.S. territory rather than a foreign country.
Many of the lawyers and activists pursuing such cases say they hope the Unocal case proves to be a breakthrough. The suit accuses Burma's military of using forced labor in connection with a pipeline project in which Unocal had a part. The company argues that Unocal never sought to use forced labor on the project, and that the people running the project tried to prevent such a possibility.
Should Unocal lose, the verdict could become as much a legal milestone for social justice as the first courtroom victories for America's racial desegregation movement, Collingsworth said.
"It probably seemed at least as big a long shot as one of our cases to think that Thurgood Marshall could win a case before racist judges," he said. "This could be our Brown vs. Board of Education."
Note: the International Labor Rights Fund website is at http://www.laborrights.org/
David Baker Published in the San Francisco Chronicle © 2002 San Francisco Chronicle