Landmark Unocal Settlement Strengthens Alien Tort Claims Act as Recourse for Human Rights and Environmental Abuses Committed Abroad

The Alien Tort Claims Act continues to provide non-U.S. citizens an avenue in U.S. courts to pursue human rights and environmental abuses committed abroad.

A recent decision by the United States Supreme Court supported the use of the statute to pursue such violations in U.S. courts, and the landmark settlement between Unocal Corp. and Burmese villagers for human rights abuses committed in connection to a pipeline project further confirms its viability.

The Alien Tort Claims Act, or ATCA, grants non-U.S. citizens the right to sue in federal court for "violations of the law of nations or a treaty of the United States." Congress passed the ATCA in 1789 as part of the first Judiciary Act.

Largely untouched for nearly 200 years, in 1980 the family of a Paraguayan man tortured to death brought suit under the ATCA against the man's torturer, who was a citizen of Paraguay but living in Brooklyn at the time of the suit. The torturer had acted as an agent of the Paraguayan government and was found liable under the ATCA. The family was awarded $10 billion in damages but was never able to collect the award, and the case prompted a host of human rights and environmental cases brought under the ATCA in U.S. courts.

The Unocal case was the first ATCA case against a multi-national company for human rights violations committed abroad. Unocal had contracted with the Burmese government to provide security for a gas pipeline it was building through Burma. The Burmese military allegedly committed flagrant abuses in the areas where the pipeline was built, including rape, torture, forced labor, and murder.

Katie Redford, co-founder of Earthrights International, helped 15 Burmese villagers file suit in U.S. courts under the ATCA against Unocal in 1996, alleging that Unocal aided and abetted the government's abuses of its peoples' human rights. As a result of Redford's efforts, there are now more than three dozen pending cases against multi-national corporations under the ATCA for human rights and environmental abuses committed abroad, according to the Los Angeles Times article on 14 December 2004.

The Unocal settlement and the favorable United States Supreme Court decision in Sosa v. Alvarez-Machain have strengthened the ATCA's viability as a legal mechanism to ensure corporate accountability for human rights and environmental abuses committed outside the United States, according to Stephen L. Kass and Jean M. McCarroll in the New York Law Journal on 23 December 2004.

They wrote:

Where the facts warrant, the ATCA may be a viable remedy for foreign environmental misconduct by U.S. corporations. Corporations may be liable for violations of environmental treaties, such as the International Convention for the Prevention of Pollution from Ships or the Convention on Long-Range Transboundary Pollution, that the United States has ratified. Customary international environmental law claims will be more difficult to maintain, but could include, for example, direct transboundary pollution by a U.S.-based firm operating abroad. ...

The ATCA is, however, only one reason why U.S. firms may need to disclose potential environmental liabilities from overseas operations. The domestic environmental laws of foreign countries may also give rise to liability subject to disclosure. Many corporations have long treated the prospect of environmental liability from foreign operations as so remote that it is exempt from disclosure, particularly where the country in question is a developing nation. As more foreign governments, including those of developing countries, seek to enforce their laws and as local courts learn how to adjudicate such claims, this may no longer be a justifiable stance. U.S. courts are also increasingly accessible to plaintiffs for redress of such claims through the ATCA and, in special circumstances, the extraterritorial application of U.S. environmental laws.

Unocal will pay the villagers an unspecified amount of money and fund programs to improve living conditions for people in the region surrounding the $1.2 billion pipeline, the parties said in a joint statement announcing the settlement.

Unocal had argued that it was not liable for the conduct of Burmese soldiers under the ATCA, but its motion for dismissal was denied in September 2002 by the United States Court of Appeals for the Ninth Circuit. The Court of Appeals acknowledged that the alleged conduct by Unocal, if proven, would amount to violations of customary international law actionable under the ATCA. But the court agreed to rehear the case en banc. See Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001).

In the months leading up to the re-hearing, the United States Supreme Court suggested that corporations and other private actors could be held liable for certain violations that do not require state action, such as genocide, according to the court's decision in Sosa v. Alvarez-Machain in June 2004. In a majority opinion written by Justice David Souter, the court set forth what it considered to be actionable conduct under the ATCA.

The Sosa court said: "Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms we have recognized."

The Unocal settlement was announced one day before the en banc hearing, which had been scheduled for 13 December 2004.

For more information, please see Earthrights International at http://www.earthrights.org/unocal/ and the Social Funds article at http://www.socialfunds.com/news/article.cgi/article1591.html.

Ship Operator Sentenced for Illegal Ocean Dumping

Thomas L. Sansonetti, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division, and Charles W. Larson, Sr., U.S. Attorney for the Northern District of Iowa, announced in August 2004 that an Iowa-based shipping company that transported grain cargoes and petroleum products in the United States and abroad was sentenced to pay $2 million for illegally dumping thousands of gallons of waste oil, hundreds of tons of diesel-contaminated grain, and plastic wastes at sea.

Sabine Transportation Company of Cedar Rapids, Iowa, admitted it deliberately dumped waste oil, sludge, and oily mixtures from the S/S Trinity, the S/S Juneau, the S/S Sea Princess, and the S/S Colorado without the use of required pollution prevention equipment. The deliberate discharges were then concealed in false Oil Record Books, required logs in which all overboard discharges must be accurately recorded and which are regularly inspected by the U.S. Coast Guard. Sabine also admitted that, on a significant number of other occasions, the company falsified Oil Record Books and deliberately dumped oily wastes from other vessels in its fleet.

The government learned about the illegal dumping aboard Sabine ships from crew members who served aboard the S/S Trinity and the S/S Juneau. Two S/S Trinity crew members told the U.S. Coast Guard about the illegal dumping of thousands of gallons of contaminated diesel fuel when the vessel arrived in Jacksonville, Florida, in June 1998. A S/S Juneau crew member advised the Coast Guard in Portland, Oregon, in March 1999 that hundreds of tons of diesel-contaminated wheat had been dumped into the ocean. The resulting nation-wide investigation revealed that illegal dumping occurred with frequency aboard a number of the vessels operated by Sabine.

At sentencing, prosecutors informed the court that the whistleblowers risked their careers with Sabine and within the industry by coming forward, and they qualified for a statutory reward.

In August 2004, U.S. District Judge Mark W. Bennett ordered Sabine Transportation Company to pay a $2 million fine and serve three years probation. Judge Bennett also awarded a total of $1 million of the fine to the three former Sabine crew members who reported the crimes to the government. The reward, granted under a provision that allows a court to award up to one-half of a criminal fine to those providing information leading to conviction, is the second award of $1 million dollars or more issued to crew member whistle blowers within the past week.

"This case should send a message that polluting our environment and lying to the government will not be tolerated," said Tom Sansonetti, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division.

Last year, Sabine also pled guilty in the Eastern District of Louisiana to a violation of the Clean Water Act based on the dumping of hundreds of tons of rust scale, tank cleaning wastes, and other oily wastes into the Mississippi River during a tank cleaning operation. The prosecution is part of a longstanding initiative by the Department of Justice, in partnership with the U.S. Coast Guard and EPA, to detect and deter crimes related to deliberate pollution caused by ships. The case was investigated by Special Agents of EPA's Region VII Criminal Investigation Division, U.S. Coast Guard Investigative Service and the Federal Bureau of Investigation. The prosecution was handled by the U.S. Attorney's Office for the Northern District of Iowa and the Environmental Crimes Section of the U.S. Department of Justice.

This article was originally published on the Department of Justice ERND Web site at http://www.usdoj.gov/opa/pr/2004/August/04_enrd_552.htm.