Capitalism on trial

Burmese sue US oil company

Duncan Campbell in Los Angeles

Monday July 28, 2003

The Guardian

Twelve Burmese taking legal action in California claim that their country's military government used forced labour and its soldiers employed murder and rape to clear the way for a foreign-funded gas pipeline.

A Los Angeles superior court judge is expected to decide this week whether the case, which may have profound implications for international corporations, can proceed under Californian law. If, as expected, she says yes, the trial is likely to begin in September.

The 12 are suing the Los Angeles company Unocal for damages on the grounds that it benefited from the Burmese activity even if it did not endorse it.

The story began in the 90s when the regime used indentured labour to clear a path for the Yadana Project - a pipeline for Unocal and Total - which is the biggest foreign operation under way in Burma.

The case alleges that the army used brutal tactics to coerce the plaintiffs, who had not been consulted about the pipeline and had previously made their living from rice, fish, and cashew and betel nuts.

The plaintiffs, who are known only as John or Jane Doe or Roe to keep their identity from the Burmese authorities, say the army "engaged in a pattern of systematic human rights abuses and environmental degradation ... to fulfill its contractual responsibilities to Unocal and Total".

They say: "Abuses such as extrajudicial killings, torture, rape and extortion by pipeline security forces have dramatically increased since the Yadana project was initiated."

Their allegations were taken up by human rights organisations in the US, including EarthRights International - which was co-founded by the Burmese activist Ka Hsaw Wa - the Centre for Constitutional Rights and the International Labour Rights Fund, which have brought the case on their behalf.

Total is subject to separate actions in Europe.

Unocal denies doing anything wrong or having any knowledge of atrocities. It has sought to have the cases thrown out at various stages since the action began in 1996.

The action is being brought under an old law, the Alien Tort Claims Act, passed in 1789, the scope of which is in dispute. The US justice department hast intervened in support of Unocal, arguing that the act should not apply.

The attorney general, John Ashcroft, had been lobbied by trade groups anxious to avoid the possibility of being sued as a result of their foreign operations. The department argues that the case could adversely affect the US "war on terrorism" by alienating its allies.

Pamela Wellner of EarthRights said the Burmese had faced enormous danger in telling their story "because there are many government spies about".

Paul Hoffman, a member of the plaintiffs' legal team, said the judges were aware of its significance.

"They realise that this is an incredibly important decision, because it is really the first major case involving the Alien Tort Claims Act and corporate responsibility and they know they are going to be setting a standard for the country. They probably also know that the US supreme court is more than likely to take the case."

Unocal, which is contesting the claim on both legal and factual grounds, is estimated to have spent m in legal costs, though it says the figure was "made up" by its opponents.

It defends its dealings with the Burmese government and says that there has been a long debate on whether isolation or engagement is the best way to deal with repressive regimes.

It says the bodies bringing the action "have resorted to spreading false and hurtful allegations about Unocal and the Yadana natural gas project ... as part of this effort, they have conducted a well-orchestrated campaign to influence news reporting."

It says the Yadana project has given nearly 50,000 people in the area better health and education and improved the local economy.

Its spokesman Barry Lane said it had been chosen as a suitable body to sue because of its high profile.

"They aren't into what's right and what's wrong. They are trying to use the law to advance their political beliefs ... it has nothing to do with Unocal's conduct."

Those watching the case are likely to include Texaco, which is facing an action for its activities in Ecuador; Royal Dutch Petroleum, facing an action because of the Nigerian authorities' behaviour, including the execution of Ken Saro-Wiwa; and Exxon Mobil for its operations in Indonesia.