The Coke Machine - Michael Blanding [105]
That’s when a man with the felicitous name of U Maung Maung walked into his life. General secretary of trade unions in Burma—a country taken over by a military junta in 1962, and known also as Myanmar since 1989—he told Collingsworth about an alarming new trend. Refugees crossing over into Thailand told horrific stories about being forced by the army to clear the jungle with machetes or search for land mines; those who refused were tortured, raped, or murdered. More shockingly, the work was being done for the benefit of two foreign companies—French-based Total and California-based Unocal. Maung appealed for help. “You’re a smart lawyer,” he told Collingsworth. “Here’s a case where you can show there’s slave labor, there’s brutality, and it’s being done on behalf of a U.S. multinational company.”
However much he wanted to help, Collingsworth was stymied. The favored-nation legislation created by Pease had failed to create any meaningful changes in company operations, and the code of conduct movement had turned out to be a weak Band-Aid on the problem. And here Maung wasn’t talking just about poor working conditions or subsistence wages, but about rape, torture, and murder. Obviously, the ILRF couldn’t file suit in Burma. And ironically, given that Unocal was just six miles away from his office at Loyola Law School in Los Angeles, he didn’t see any way he could sue in the United States either.6 The problem was discussed with other lawyers for months, and it was finally a summer associate named Doug Steele who came up with the solution: the Alien Tort Claims Act.
The law is ancient to say the least, going back to the 1789 Judiciary Act that set up the U.S. federal justice system. In its entirety, it reads: “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.” Translated into common speech, that essentially means a foreigner can sue in U.S. courts providing it is over a violation of international law. The law’s history is murky; apparently passed to protect American diplomats or possibly American ships from piracy on the high seas, it had been used exactly twice before 1980.
That’s when a Paraguayan by the name of Joel Filártiga used it to sue the policeman who had tortured and murdered his son after the policeman had moved to Brooklyn, eventually winning $10 million in a wrongful death suit. Filártiga was never able to collect, and the policeman was shortly deported back to Paraguay. But the floodgate had been opened. Soon Ethiopian prisoners were using it to sue their torturers, Guatemalan peasants to sue their foreign defense minister, and a group of Bosnian rape victims to sue Bosnian Serb leader Radovan Karadžić, in the last case leading to $4.5 billion in damages in 2000.
While no one had ever used the law against a corporation, there was nothing in theory stopping them. The same legal precedent that established a corporation as a “person” for the purposes of owning property more than a hundred years ago in the Southern Pacific Railroad case could also be used against them to drag them into court like any other person who committed human rights abuses.
Not that it wasn’t a stretch. To sue Unocal under the ATCA statute, the lawyers with the ILRF had to prove that the actions rose to a violation of international law, and that the Burmese villagers couldn’t get adequate relief in their own country. Furthermore, no one was saying that Unocal directly raped and tortured anyone—only that they willingly aided and abetted the military in performing those acts. First filed in 1996 in California, the case was thrown out of court by a judge who argued that the company had no control over the Burmese military. That decision was overturned in 2002 by an appeals court that ruled it could go forward. Rather than proceed with a trial, Unocal settled for an undisclosed amount, without admitting any wrongdoing.
Nevertheless, the case was a huge victory for