Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. Unocal

Abstract

This article examines a widely publicized corporate accountability and human rights case filed by Burmese plaintiffs and human rights litigators in 1996 under the Alien Tort Claims Act in U.S. courts, Doe v. Unocal, in conjunction with the three main theoretical approaches to analyzing how law may matter for broader social change efforts: (1) legal realism, (2) Critical Legal Studies (CLS), and (3) legal mobilization. The article discusses interactions between Doe v. Unocal and grassroots Burmese human rights activism in the San Francisco Bay Area, including intersections with corporate accountability activism. It argues that a transnationally attuned legal mobilization framework, rather than legal realist or CLS approaches, is most appropriate to analyze the political opportunities and indirect effects of Doe v. Unocal and similar litigation in the context of neoliberal globalization. Further, this article argues that human rights discourse may serve as a common vocabulary and counterhegemonic resource for activists and litigators in cases such as Doe v. Unocal, contrary to overarching critiques of such discourse that emphasize only its hegemonic potentials in global governance regimes.

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“…4 In the past, these cases have been cited by international lawyers to illustrate that corporate responsibility for transnational companies to respect human rights extends beyond the domestic legal and regulatory sphere so that they can be adjudicated by international and foreign courts. 5 Legal barriers, however, can deter legitimate cases involving corporate human rights violations from being addressed.…”

Secondary Stakeholders as Agents of Influence: Three Essays on Political Risk, Reputation and Multinational Performance

“…While the case was initially dismissed by a U.S. district court on jurisdictional grounds, the U.S. Court of Appeals for the Second Circuit reversed the decision, ruling that torture and extra-judicial killing constitute violations of the "law of nations" and are thus actionable under ATS. The judge awarded the plaintiffs $10 million in punitive damages, stimulating new interest in the law as a vehicle for prosecuting crimes against humanity committed on foreign soil (Davis, 2008;Gallagher, 2010 against civilians as part of a $1.2 billion natural gas pipeline project in which the company had a minority stake (Holzmeyer, 2009;Schoen, Falchek, & Hogan, 2005).…”

“…The claims included complicity in forced labor, torture, rape, extra-judicial killings, and other crimes committed by the Burmese military against civilians as part of a $1.2 billion natural gas pipeline project in which the company had a minority stake (Holzmeyer, 2009;Schoen, Falchek, & Hogan, 2005).…”

“…Legal challenges differ from other stakeholder tactics in important ways. They are typically more expensive to mount than proxy resolutions, boycotts, or protests, more difficult to organize and execute, and require specialized legal knowledge that few NGOs possess (Holzmeyer, 2009). Moreover, litigation-based campaigns require broader and denser support networks than do other types of stakeholder campaigns, particularly those involving allegations of overseas crimes, since attorneys must often rely on intermediaries to gain access to local communities to gather evidence (Davis, 2008;Risse, Ropp, & Sikkink, 1999).…”

“…Moreover, litigation-based campaigns require broader and denser support networks than do other types of stakeholder campaigns, particularly those involving allegations of overseas crimes, since attorneys must often rely on intermediaries to gain access to local communities to gather evidence (Davis, 2008;Risse, Ropp, & Sikkink, 1999). Finally, since successful legal campaigns require significant resource commitments over extended periods of time, plaintiffs hoping to prevail must consider the resources their prospective target might be able to marshal to defeat the challenge -a strategic calculation that stakeholder groups employing alternative tactics like boycotts or protests may not need to make (Holzmeyer, 2009 Since a landmark 1996 case against Unocal for alleged complicity in human rights violations committed by the Burmese military in furtherance of a $1.2 billion natural gas pipeline project, 43 the ATS has been used to sue some of the world's largest MNEs, including Citigroup, Dow Chemical, General Motors, Exxon Mobil, Chiquita, Bridgestone, Coca-Cola, IBM, and Wal-Mart (Gallagher, 2010).…”