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Ninth Circuit to Decide Validity of Alien Tort Claims Act

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An important oral argument is taking place on June 17, 2003 before the full Ninth Circuit Court of Appeals in California concerning the legal status of the Alien Tort Claims Act (ATCA) in Doe v. Unocal, a case CCR commenced the case  in 1996.

On June 17, 2003 there will be an important oral argument before the full Ninth Circuit Court of Appeals in California concerning the legal status of the Alien Tort Claims Act (ATCA).  CCR commenced the case of Doe v. Unocal in 1996.  The suit charges a conspiracy between the military junta in Burma (Myanmar) and its petrochemical partners, Unocal Corporation in the United States and Total of France, in which human rights violations, including coerced labor, forced removal of villagers, murder, rape, and other torture were committed during construction of the Yadana gas pipeline across Burma from the Andaman Sea to Thailand.

Unocal has been fighting tooth and nail since the lawsuit’s inception to have the case thrown out, invoking every conceivable legal attack.  In a major milestone for the plaintiffs last September, a three-judge panel of the Ninth Circuit held that Unocal could be held liable under ATCA for aiding and abetting in the forced labor, murder and rape.  After the panel decision, Unocal requested en banc review by the full Court of Appeals.  The Circuit granted the petition for en banc review, but stated that it was primarily interested in whether it was correct for the lower court to have used the criminal law aiding-and-abetting standard.  The panel decision included one concurring opinion that suggested that federal civil common law rather than the criminal law standards should be applied to the aid-or-abet claims.

Despite the narrow focus of the grant of en banc review, the Department of Justice, supported by the Chamber of Commerce, the National Foreign Trade Council, the National Association of Manufacturers, Washington Legal Foundation and others, has tried to use the upcoming argument to make a full-scale attack on the ATCA.  The government filed a brief attacking the foundation of ATCA cases, claiming that the statute does not create an independent cause of action under which victims can receive a judicial remedy.  CCR pioneered the use of the ATCA as a basis for remedying international human rights violations.  In 1980, CCR won the case of Filartiga v. Pena-Irala in the Court of Appeals for the Second Circuit and established the ATCA, which had been part of the federal statutes since 1789 but was long forgotten, as an important weapon for victims of torture, genocidal campaigns and other serious abuses.

The legal community sees Doe v. Unocal as extremely significant, because it is the first lawsuit brought against a corporation under the ATCA.  Prior to that time, the ATCA had been directed at individuals who were responsible for brutal human rights violations.  CCR has subsequently filed ATCA actions against other multinational corporations in Wiwa v. Royal Dutch Petroleum and Bowoto v. Chevron for their collaboration with murderous human rights violators.

Jennifer Green, the CCR Staff Attorney who has devoted countless hours to the litigation, stated, “we wanted the Unocal case to establish the principle that when corporations have direct complicity in the human rights violations of repressive regimes with which they do business, they can be held liable for the actions carried out on their behalf.  Experience has shown that only when corporations are held accountable for the brutality of their despotic partners will they act in a responsible and law-abiding manner." 

CCR cooperating attorney Paul Hoffman, one of the principal lawyers in the Unocal case, prepared the opposition brief to the government’s attack on the ATCA in the Ninth Circuit.  “This brief is recommended reading for everyone, including non-lawyers, who wants to have a fuller legal and historical understanding of the role and importance of the Alien Tort Claims Act,” Jennie Green explained.

 

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.