Beyond Reports and Promises
Human Rights Dialogue 2.9 (Spring 2003): "Making Human Rights Work in a Globalizing World"
Terry Collingsworth, U Maung Maung, Javier Correa

June 19, 2003

• Beyond Reports and Promises, by Terry Collingsworth
• Confronting UNOCAL in Burma, by U Maung Maung
• Uniting Against Coca-Cola, by Javier Correa

Beyond Reports and Promises, by Terry Collingsworth

Although our use of traditional human rights tools enabled us to make some progress, we were frustrated by the lack of means for effectively enforcing human rights standards in the global economy. Since there were no mechanisms in international law that would allow us to enforce these rights, we began to explore the possibility of finding remedies in the domestic legal system. An answer to the enforcement question came to us when we were working to address the use of forced labor in Burma by the Unocal Corporation, a U.S.–based oil company, and Total (now ElfTotalFina), the French oil giant, in the construction of a natural gas pipeline. We began the experiment of using the Alien Tort Claims Act (ATCA) to initiate human rights cases against the most egregious violators of human rights in the MNC community. The ATCA, a U.S. federal statute that dates back to 1789, provides that “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 use of ATCA was revived in the 1970s in cases seeking to hold former dictators and torturers accountable after they had obtained refuge in the United States. During that period, the ATCA was found by several courts to provide a viable cause of action to address human rights violations. The seminal case was Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980), where the Second Circuit Court of Appeals held that an alien could sue in U.S. federal court for a tort that violates the law of nations, and that torture was a clear violation of the law of nations. Since that ruling, the ATCA has been used routinely to reach direct perpetrators of human rights abuses. Interpreting the statute in a new way, the ILRF took the next step and, based on the rulings of the Nuremberg Tribunals, applied the ATCA to MNCs that are complicit in human rights violations committed in the course of commercial activities.

Our organization is currently involved in five different lawsuits based on the ATCA, enabling us to become a leading force in using this federal law to hold corporations accountable for their actions abroad. Against Unocal, for example, we have been able to argue a case on the basis of the Nuremberg Principle, which was used during the trials of business leaders who had profited from slave labor provided by the Nazis. This principle holds that private firms that were not directly involved but knowingly benefited from slave labor can be held accountable for human rights violations. In another case, we have charged Coca-Cola with the murder and terrorizing of trade unionists in Colombia. Coca-Cola has argued that it cannot be held liable in a U.S. federal court for occurrences in Colombia, adding that it does not own, and therefore does not control, the bottling plants in Colombia. We hope that this case will develop a standard under which a multinational corporation cannot profit from human rights violations while limiting liability to a local entity that is a mere facilitator for the parent company’s operations.

In these two cases, as well as other cases that we have initiated against Del Monte, Exxon Mobil, and Drummond Coal, we hope to establish the ATCA as one of the most effective tools yet in the effort to halt extreme abuses against workers. Yet, despite our success thus far, there are many limitations to using litigation to target MNCs. Litigation is time-consuming, expensive, and often politicized. For example, the Unocal case is now approaching its eighth anniversary, the plaintiffs have been left in legal limbo all of this time, and the ILRF has struggled to raise funds to confront Unocal’s seemingly unlimited legal war chest. Furthermore, since the law relies on a narrowly defined Law of Nations standard, it is limited in its ability to address other crucial human rights concerns related to wages, sweatshop labor, and health and safety standards. In addition, because it is a U.S. federal law, the ATCA can be used only against corporations that are based in the United States and fall under U.S. jurisdiction. It is not appropriate, then, to shift to an exclusive reliance on ATCA litigation.

We view litigation as a piece that had long been missing from prior campaigns. We defined the ideal campaign as having three components: an ATCA case based on solid evidence that an MNC was participating in established human rights violations for profit (in order to provide a viable and concrete case); the presence of an “on the ground” entity in the country where the violations occurred that would be able to build on any political momentum created by a global campaign and sustain it independently of the case; and a credible campaign to educate consumers and citizens in the market countries to apply direct pressure on the target MNC to change its practices.

Our current campaigns will hopefully provide a successful model of this cooperation. Although the ACTA cases have perhaps served as the catalyst for cooperative, strategic action, it is unlikely that litigation alone will bring major change. What is needed is an organization that will remain vigilant to ensure that the situation does not deteriorate, or that the resolution of a lawsuit serves only to address the concerns of the small group of claimants. Moreover, since MNCs obviously have the ability to hire scores of lawyers and drag litigation out for years, grassroots campaigns are necessary to ensure that the companies become aware that a drawn out legal battle will be costly in other ways even if the litigation itself ultimately fails. Consumers want to know that a company they support is not complicit in human rights violations, and that the company has done all it reasonably can to prevent such abuses from occurring. In the present state of evolution of the global economy, few companies can actually meet that standard, but we are well on the way to developing a process to make each of them accountable, one by one if necessary.

While using this approach, the ILRF is working simultaneously to push for the adoption of a universal social clause that can help protect workers’ rights. We have developed a model provision for human rights to be added to trade agreements and are working with other human rights groups to build support for this effort. At this point, MNCs are aggressively complaining about being subject to ATCA suits, but they offer nothing more than voluntary codes of conduct as the alternative. Hopefully, a few visible victories in the ATCA cases will provide the incentive for the business community to proceed with a good faith discussion of an alternative that creates binding, globally applicable protections for workers, much like those that MNCs have designed to protect their own property rights in the global economy.

Confronting UNOCAL in Burma, by U Maung Maung

The era of globalization has worsened this situation by ushering new actors into the human rights crisis in Burma—namely, multinational corporations (MNCs). Despite Burma’s record of torture and forced labor, MNCs continue to conduct business with Burma’s military regime. By supporting this regime, MNCs are making it more difficult for the international community to bring about long-lasting, structural, and democratic change in Burma.

In 1992, the American oil company Unocal Corporation embarked on a joint venture with the Burmese military regime and the French oil company, Total, to construct an oil pipeline in Burma. Known as the Yadana Project, this project involved the forced labor of thousands of Burmese villagers. After Unocal and its partners signed the offshore gas project with the Burmese government, an area that used to have only three military battalions expanded to ten. This increased military presence in a place without infrastructure resulted in the military forcing local people to carry equipment for the troops surveying the project. The military also forced people to build the barracks, compounds, fences, and roads that it needed to provide security for the project. When questioned, Unocal claimed that the human rights violations were committed by the Burmese military and not by the company. In reality, these violations would never have occurred if Unocal had not first initiated this project with the brutal military regime.

As the project progressed, large numbers of Burmese people were pouring across the border with Thailand, reporting that they had been forced to perform labor for the large pipeline project. In response, Khin Maung Kywe, Hla Oo, and myself formed the Federation of Trade Unions of Burma (FTUB) in Thailand. With the help of the international trade unions, FTUB worked to develop independent unions in the ethnic areas of the country and raise international awareness of workers’ rights violations in Burma. In organizing unions, documenting violations, and researching the cases, we discovered that Unocal had been informed in February 1994 that forced labor was being used and had decided to proceed with the pipeline project anyway.

Having read of legal approaches used to address basic rights violations in the United States, FTUB decided to use the U.S. legal system to address the labor abuses that Unocal was supporting. We approached several American labor rights organizations for assistance in pursuing this approach. Terry Collingsworth, the Executive Director of the International Labor Rights Fund, joined us as the lead counsel and helped us develop our case.

It was a challenge to convince local villagers to prosecute. Most of these people had never been to a large city. They questioned how we would hold their abusers accountable through a U.S. court when we did not have funds. They did not know the people we were working with or the legal processes we would use. Furthermore, it was extremely difficult to translate the affidavits from the local languages of Karen and Burmese into English. Throughout this entire process, the plaintiffs and the FTUB members had to maintain a low profile as most were illegal refugees in Thailand. It was, and continues to be, very daunting to take Unocal, an MNC with a budget larger than our entire country’s, to court. It has been almost eight years since we filed the lawsuit. We have not yet won the case. It is encouraging, however, that the U.S. court system has taken up (and so far refused to dismiss) a case which in 1996 the Unocal counsel had called “frivolous.”

While the case pending is an important part of the struggle, we are using many approaches to improve labor standards in Burma. With the solidarity of trade unions across the world, FTUB has lobbied the International Labor Organization to pressure the military regime to respond to the basic human rights norms and standards to which Burma is a signatory. The ILO Workers Group recently requested that the ILO Director General persuade the Asia Development Bank, which has a social contract with the ILO, to stop supporting projects of which Burma is a beneficiary.

There is no doubt that MNCs have benefited from the practice of forced labor in Burma. If MNCs cannot be held liable for their actions in a country like Burma, where there is overwhelming and well-documented evidence of widespread violations of workers’ rights, then the rule of law and the global struggle for human rights will have been undermined in countries everywhere.

Uniting Against Coca-Cola, by Javier Correa

Colombian paramilitary forces have routinely entered Coca-Cola bottling plants and threatened SINALTRAINAL members with death in order to force members to renounce their participation in the union. Since 1989, nine Coca-Cola workers have been killed. Over the past ten years, sixty-eight workers have been under death threats, forty-eight displaced, and 5,000 fired. Coca-Cola officers have taken SINALTRAINAL members to court, falsely accusing them of being guerrillas, terrorists, or criminals. Coca-Cola has denied workers and their families their right to health care, suspended the contracts of workers who were found distributing the union newsletter, and even kidnapped workers in order to force them to renounce their contract. The Colombian judicial system has refused to investigate or sanction these abuses, thus allowing these oppressive tactics to continue.

SINALTRAINAL members have responded in several ways. We have formed the national and international campaign against impunity, Colombia Demands Justice. This campaign is comprised of many different communities struggling to overcome the devastating effects of state-sponsored terrorism and the oppressive policies of multinational corporations. We have convened public hearings in the United States, Canada, and Colombia to discuss and publicize Coca-Cola’s violations of workers’ rights in Colombia, and its murder of a union leader, Hector Daniel Usuche Beron. In these sessions, organizations and individuals have testified to the abuses that they have suffered under Coca-Cola’s leadership. A resolution calling on Coca-Cola to pay reparations was passed and a plan of action to boycott Coca-Cola products was endorsed. We hope that this boycott will force Coca-Cola and the Colombian government to admit their responsibility for human rights abuses, negotiate reparations with the victims, and protect human rights in the future.

We are also working with the International Labor Rights Fund (ILRF) and the United Steel Workers Union to bring a case within the U.S. court system suing Coca-Cola and its bottling plants for the murder of Isidro Segundo Gil, and for other cases of torture, kidnapping, and death threats.

Following the filing of the case in July 2001, we launched an international campaign to bring attention to the abuses. The initial major participants were the International Brotherhood of Teamsters, the United Steel Workers Union, the International Food and Commercial Workers Union, the U.S. Labor Education Project, the Canadian Labour Congress, and the ILRF. Thereafter, the United Students Against Sweatshops joined and took the lead in bringing the issue to college campuses around the United States. Leaders from SINALTRAINAL went on speaking tours, and student activists are now focused on getting their campus administrators to end exclusive supply contracts with Coca-Cola. The message of our campaign is that Coca-Cola not only bears ultimate legal responsibility in this case, but that the company can and should insist that its bottlers in Colombia immediately stop any further association with the murderous paramilitaries that have been targeting union leaders at the bottling plants.

In March 2003, the federal court in Miami ruled that the case against Coca-Cola could go forward. Merely filing this case has helped to stop the violence against union members, since Coca-Cola’s bottlers do not want to see any more violence while it is pending. SINALTRAINAL has drawn up a list of demands regarding the practices Coca-Cola must change if it wants to resolve the dispute. We hope that this combination of political and judicial approaches on both the national and international level will force Coca-Cola to change its practices.