Recent
court decision could further isolate Burma
by Robert Lebowitz, Digital Freedom Network
(September 26, 2002)
For over a decade, great debate has surrounded the question of
whether the United States should try to influence the anti-democratic
regime of Burma through policies of constructive engagement or
through containment and isolation. A recent groundbreaking U.S.
state court decision, however, seems to shift the balance toward
isolating the country economically as the way of bringing it toward
democracy.
On September 18, the
9th U.S. Circuit Court of Appeals ruled that the California-based
oil giant UNOCAL could be sued for egregious abuses of Burmese
villagers committed by government soldiers in charge of security
for a pipeline construction project. The ruling overturned a previous
decision in 2000 which stated that UNOCAL could not be sued unless
plaintiffs provided evidence that UNOCAL actually participated
in or influenced the military's conduct or that it knowingly conspired
with the military to commit the abuses.
"The district
court [in 2000] stated that it was necessary to show that UNOCAL
had control over the military in order to sue," said Richard
Hertz, senior attorney for EarthRights
International, the organization that initiated the suit. "However,
the court of appeals now said all we had to show was that UNOCAL
gave substantial assistance to the military. And the court ruled
that we had sufficiently done that.
| "[This
ruling] sets the standard for suing a corporation for
human rights violations." |
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"This is a historic
ruling; it sets the standard for suing a corporation for human
rights violations." The new trial is set for February.
UNOCAL's argument
UNOCAL has for years
defended its practice of doing business with Burma. On its Web
site, UNOCAL praises the position of constructive engagement,
stating that "it is by far the more effective way to strengthen
emerging economies and promote more open societies."
While UNOCAL says it
does not defend the actions of the Burma government, the company
states that its Yardana pipeline project will help the country
"develop a vital, democratic society built on a strong economy."
The Yadana project, UNOCAL claims, has brought "significant
benefits in health care, education, and economic opportunity to
more than 45,000 people living in the pipeline area."
However, the Burmese
villagers who initiated the legal action against UNOCAL paint
a far different picture. The suit claims that the gas and oil
exploration and production company was partly responsible for
forced labor, forced relocation, rape, torture, and murder committed
against Burmese by Burma's military junta during the construction
of the Yadana pipeline.
The plaintiffs also
allege that UNOCAL was aware that forced labor was used in Burma
before they agreed to build the pipeline, but went ahead with
the project anyway. The pipeline, in fact, had been commissioned
by UNOCAL and its joint venture partner, the Burmese government.
For its part, UNOCAL
has consistently denied any part in the abuse of villagers
and has defended the position that working in Burma and engaging
in business with the ruling junta is more effective towards bringing
about change than economically isolating the antidemocratic government.
Aung San Suu Kyi's
position
UNOCAL's staunch defense
of constructive engagement is matched by the equally strong endorsement
of isolation and containment espoused by Aung San Suu Kyi, leader
of the Burmese pro-democracy movement, the National League for
Democracy (NLD).
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NLD
leader Aung San Suu Kyi strongly disagrees with any attempts
to economically engage the military junta.
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Suu Kyi has consistently
spearheaded efforts to halt UNOCAL's investment in Burma, claiming
that profits from such business enterprises "merely
go toward enriching a small, already privileged elite."
In a recent interview
with the Digital Freedom Network, Suu Kyi reiterated her position.
"My stance on UNOCAL has not changed since my release on
May 6," said Aung San Suu Kyi. "I
don't think that more open trade will benefit the people; it has
to be accompanied by political changes."
In a similar vein,
Suu Kyi discouraged tourists from visiting Burma in order to put
economic pressure on the government to change their policies.
In Suu Kyi's view, any dialogue with the government by businesses
or organizations would not prove helpful to the cause of democracy.
"I am against unbalanced negotiations of any kind. If organizations
are willing to dialogue with the government, then they must also
dialogue with the NLD," she said.
The effect on Burma
The newly granted ability
for those abused in a foreign country to sue U.S.-based corporations
in the U.S. will likely give pause to businesses considering investing
in Burma, encouraging isolation over constructive engagement.
"The decision will have an indirect effect on Myanmar,"
Paul Hoffman, the lead counsel in the case against UNOCAL, told
DFN. "It will now make it much harder for projects to go
forward."
(The military junta
that seized control of Burma in 1989 changed the country's name
to Myanmar in 1991. Many activists do not recognize the name change.)
Interestingly enough,
the Burmese government has of late demonstrated a move toward
increasing tolerance. On September 23, eighteen prisoners were
freed, including 10 members of the NLD. The government also granted
permission to open up offices throughout the country. Hoffman
suggested that the new vulnerabiltiy of corporations in Burma
will make the government even more solicitious of the favor of
the free world.
"The government
will feel pressured to curb human rights violations in order to
get foreign currency and foreign capital or it will lose them,"
Hoffman said. "When a company like UNOCAL gets involved in
a pipeline project like this, it has to make sure that Burma will
respect human rights projects."
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