e response

7

TRANSNATIONAL LEGAL CONFLICT

BETWEEN PEASANTS AND CORPORATIONS

IN BURMA: HUMAN RIGHTS AND DISCURSIVE

AMBIVALENCE UNDER THE US ALIEN TORT

CLAIMS ACT

John G. Dale*

INTRODUCTION

In the 1990s, Unocal Oil Corporation made a deal with the author- itarian government of Myanmar (Burma)1 to build the Yadana Project,

* This chapter is based in part on field research that I conducted in Burma and Thailand in 1997 and 1998. But I am deeply indebted to many people who volunteered their time and effort, shared their food and homes, and in some cases risked their lives, to assist me in collecting data for this project. To many I have promised confidentiality. To the other generous and courageous individuals and organizations I offer my kadawt – especially Zaw Min (All Burma Students’ Democratic Front); Ko Kyaw Kyaw (and other members of the National League for Democracy); Teddy Buri and Aung Myo Min (National Coalition Government of the Union of Burma); Ah Moe Zoe, Zaw Zaw Htun, and Min Min Oo (Democratic Party for a New Society); U Ba Kyi; Bo Thakhin Sa; Lu Maw; Saw Cit Oo; Dr Guy Morineau (Medecins du Monde); John C. Bradshaw (US Embassy in Myanmar); Max Ediger and Chris Kennel (Burma Issues); Faith Doherty (Southeast Asian Information Network); Debbie Stothard (Alternative ASEAN Network on Burma); Lyndal Barry, Sitthipong Kalayanee, and Htet Khai (Images Asia); Jackie Pollock (Empower and the Migration Assistance Program); Veronika Martin (Women’s Education for Advancement and Empowerment); Peter Halford, Pippa, and James (Burmese Relief Centre); Justin Sherman (International Rescue Committee); Sally Thompson (Burmese Border Consortium); Kevin Heppner (Karen Human Rights Group); Annette Kunigagon; and many brave friends in Hsipaw, Shan State. Outside of Burma and Thailand, more individuals and organizations than I have space to list also provided me with critical assistance. However, I must thank Burma Centre Nederlands for allowing me liberal access to their archives in Amsterdam, the Netherlands. In the United States, I am grateful to Simon Billenness and Robert Benson for providing me with substantial insight into their work on transnational legal campaigns that have contributed to the Free Burma Movement. I also wish to thank Fred Block, Jack Goldstone, and Michael Peter Smith for their insightful comments on earlier versions of this work, and their intellectual support throughout the progress of this research. For their additional comments, I would also like to extend thanks to Andy Nathan and my other co-participants in the Seminar on Human Rights in an Age of Globalization, supported by the National Endowment for the Humanities, and hosted by Columbia University during the Summer of 2005.

1 In 1988, under Ne Win’s dictatorship, the military reconsolidated power when it violently repressed a domestic pro-democracy movement that was deploying ‘‘people power’’ tactics in an effort to end the military’s rule. In the wake of international condemnation for its action, the

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a natural gas pipeline. As part of that deal, the military junta that runs Myanmar forced local villagers to work for Unocal under some of the most deplorable conditions imaginable. The junta forced the peasants from their homes and made them work literally at gunpoint. Soldiers from Myanmar’s army raped, tortured and, in some cases, murdered the forced laborers. Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997). They also used the workers as human shields and munitions porters against other peasants, often from their own villages, who the govern- ment had branded as rebels. The peasants working for Unocal on the Yadana Project were slaves – joining the ranks of the 27 million other people held as slaves in the world today (Bales 1999: 8–9).

Peasants such as those forced to work on the Yadana Project have little power within Burma. In 1988, they participated in a statewide pro-democracy movement that the military junta brutally crushed. The crackdown in Burma was bloodier than the one the following year in Tiananmen Square in Beijing, China. However, it recei- ved little international attention because it was not televised. Best estimates suggest that the death toll ranged from 3,000 to 5,000 citizens.

Burma’s pro-democracy movement emerged initially within a national scope of action. The movement’s participants targeted the practices of the Myanmar military which, under an isolationist eco- nomic policy called the ‘‘Burmese way to Socialism,’’ had come to increasingly dominate the state and economic activity within its terri- tory since General Ne Win’s coup d’état in 1962.2 However, statewide protest by hundreds of thousands of citizens, living in both urban centers and rural villages, did not secure a democratic future for Burma. The Myanmar military not only violently and indiscriminately repressed public protest, but also heavily restricted non-military access to communications and transportation infrastructure, and vigilantly censored all civilian information flows (Lintner 1990; Mya Maung 1992; Schock 1999; Martin Smith 1991).

Burmese military’s ruling party, the State Law and Order Restoration Council (SLORC), initiated a series of measures intended to sublimate any collective memory of the illegitimate means by which it had secured its political domination over the state. One of the first measures that SLORC took was to rename the country that it ruled – from Burma to ‘‘Myanmar.’’ I will use Myanmar to refer to the post-1990 military government; yet, to resist playing too easily into the questionable intentions of this regime’s project of collective forgetting, I retain the name ‘‘Burma’’ to refer to the country, and ‘‘Burmese’’ to refer to the state’s citizens.

2 Forty years later, in December 2002, and well into his nineties, Ne Win died of natural causes. After formally relinquishing his political office in 1988, he became progressively reclusive and devoted to Buddhist meditation. He continued to reside in Burma until his death.

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Popular democratic aspirations were temporarily revived in 1990, when the military agreed to hold ‘‘free and fair’’ elections. The main opposition party, the National League for Democracy (NLD), won over 60 percent of the popular vote and 82 percent of the parliamentary seats under the leadership of Aung San Suu Kyi, daughter of the country’s first post-colonial national hero General Aung San, who was assassi- nated by his domestic political rivals in 1948. But once again, demo- cratic reform was forestalled as the military refused to honor the election results and tightened its authoritarian grip. It outlawed oppo- sition parties and systematically imprisoned or ‘‘disappeared’’3 members of the NLD (Fink 2001: chs. 3, 4 and 8). This time, however, injustice found no expression in mass protest. Instead, the movement slipped temporarily into abeyance (V. Taylor 1989; Meyer 1999). The students and Buddhist monks, who had primarily led the movement, subse- quently joined with peasants in ethnic minority villages in rural areas near the Thai-Burma border.

What makes this case so sociologically interesting is that some vic- tims of Myanmar’s violent policies then did something non-traditional. The slaves forced to work on the Yadana Project, with the help of activist lawyers in the United States, and working within a more comprehensive transnational ‘‘Free Burma’’ movement, created a trans- national legal space within which to address their grievances. It is on the construction of this transnational legal space, and its implications for the practice of human rights, that I focus in this chapter.

3 The term ‘‘disappeared,’’ refers to the human rights violation and crime of enforced or involun- tary disappearance, and is widely interpreted by civilians in Burma to be a euphemism used by the military to suggest that the arrested person has been executed by the military. Use of the term, however, allows the military to simultaneously signal a threat to any civilians who may clandestinely participate in or affiliate with oppositional political parties, and avoid accepting legal responsibility or providing official justifications for executing civilians challenging the military’s rule (Human Rights Documentation Unit 1996: 91–125; Amnesty International 2004, 2006). According to Laifungbam Debabrata Roy (2002): ‘‘Modern history has credited Adolf Hitler for [the] invention [of the practice] in his Nacht und Nebel Erlass (Night and Fog Decree) of December 7, 1941. The purpose of this decree was to seize persons in occupied territories suspected of ‘endangering German security’ who were not immediately executed, to transport them secretly to Germany, where they disappeared without trace. In order to achieve the desired intimidating effect, it was prohibited to provide any information as to their where- abouts or fate. The phenomenon reappeared as a systematic policy of state repression in the late 1960s and early 1970s in Latin America, starting first in Guatemala and Brazil. The term ‘enforced disappearance’ was first used by Latin American NGOs and is a translation of the Spanish expression ‘desaparición forzada.’ The UN Commission was the first international human rights body to respond both in general terms and also in specific cases which had occurred in Chile since the military coup d’état on September 11, 1973.’’

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I examine how movement activists have used this space to shape an important legal mechanism, the Alien Tort Claims Act, for reigning in the power of transnational corporations that violate human rights. I also examine how this space has generated discursive ambivalence among a wide range of social actors, particularly corporate and state agents, who have voiced support for human rights within this space. I argue that the discursive ambivalence of corporate and state agents results from their combining human rights discourse with other dis- courses that are meant both to protect corporations from being held accountable for their abusive human rights practices, as well as to minimize the state’s vulnerability to international legal standards.

To better understand the complex discursive practice of human rights that I discuss below, it is helpful to distinguish between two broad discourses that anthropologists often conflate: the globalization discourse and the transnationalist discourse. The globalization dis- course, writes Michael Peter Smith, ‘‘. . . draws attention to social processes that are largely de-centered from specific national territo- ries . . . and often explicitly assumes the growing insignificance of national borders, boundaries, and identities’’ (2001: 3). Smith points out that this discourse is grounded in the assumption that globalization and the nation-state are ‘‘mutually exclusive and antagonistically related conceptual categories’’ (2001: 3).

In contrast to the globalization discourse, Smith distinguishes the ‘‘transnationalist discourse.’’ The transnationalist discourse, he explains, not only challenges the binary distinction between global- ization and the nation-state but, furthermore, ‘‘insists on the continu- ing significance of borders, state policies, and national identities even as these are often transgressed by transnational communication circuits and social practices’’ (2001: 3). According to Smith’s distinction, the transnationalist discourse emphasizes transnational practices rather than global processes. Moreover, this discourse does not treat the nation-state and transnational practices as mutually exclusive social phenomena nor even as binary conceptual categories. Instead, the transnationalist discourse depicts nation-states and transnational prac- tices as contributing to the constitution of each other. It sees nation- states as not only being transformed by transnational practices, but as often participating in and even promoting these very practices that are transforming nation-states.

State actors, as well as their targets and challengers, may deploy both kinds of discourse, even combining aspects of each, when representing

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their own power and choices to act in various contexts. It matters how actors (including collective actors, both state and non-state) represent their power, choices, and even interests, because, as Alison Brysk writes, they are ‘‘increasingly constituted from the meanings assigned to them by interacting subjects’’ (2000: 43). Furthermore, the new social subjectivities that are produced through practices connect- ing social networks in more than one national territory are not neces- sarily transgressive agents of change. As Smith asserts, ‘‘[T]ransnational political, economic, and sociocultural practices are embodied in histori- cally specific, culturally constituted, social relations, i.e., they are net- works of meaning, established between particular spatially and temporally situated social actors’’ (2001: 167). Attention to the mean- ings and intentions of transnational practices (including discursive practices) helps us to usefully distinguish between different types of transnational networks, some of which have allied with Burma’s military state, and others which have challenged those alliances. Cumulatively, these transnationalist discursive challenges have trans- formed the context of the pro-democracy movement’s struggle in a way that has created new opportunities for meaningful collective action both within and beyond Burma’s territorial boundaries.

FROM NATION-CENTERED TO TRANSNATIONAL

MOVEMENT

In order to appreciate how this transnational legal space was created, we must begin by understanding how this court case was embedded within a broader transnational movement. After 1990, the activists came to understand that their ‘‘people power’’ movement tactics had failed. More and more pro-democracy activists were forced into exile. Signs of organized, large-scale, non-violent, public protest reappeared briefly in the 1996 student demonstrations, and the 1998 tenth-year anniversary of the ‘‘8-8-88’’ uprising,4 and again in the symbolic ‘‘9-9- 99’’ demonstration in 1999 (Dale 2003: ch. 3).5 Yet, the military quickly

4 Burmese activists commonly refer to the commencement of the statewide general strike that launched the pro-democracy movement as Shitlay Loan A-Yay A-Hkin, or the ‘‘Four Eights Affair (8-8-88)’’ because it began at precisely 8:08 a.m. on August 8, 1988.

5 Although Burma’s dictator General Ne Win was over ninety years old in 1999, the wealthiest person in Burma, and rarely appeared in public anymore, many believed that he was still the most powerful person in the country, and still influenced the military’s top cadre of generals and state officials. Ne Win was said to be obsessed with astrology and numerology to the extent that

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and easily repressed all of this collective action without significant casualties. Although the claim to legitimate state representation in Burma remains contested (Yawnghwe 1995; R. H. Taylor 1998), the military has remained in power to this day.

However, from 1990 through 1994, several factors combined to alter the conditions challenging the pro-democracy movement: (1) the Myanmar state’s refusal to acknowledge the victory of the country’s powerful opposition party in the 1990 elections; (2) the state’s sudden adoption of an economic liberalization policy; (3) the rapid consolida- tion of neo-liberal ‘‘free trade’’ as a hegemonic discourse on global- ization as the Cold War was ending; and (4) a massive influx of foreign investment by transnational corporations seeking to build a natural gas pipeline through Burma. During this period, the pro-democracy move- ment’s leaders came to realize that the Myanmar state was not the only obstacle to domestic political change. The investments of trans- national corporations and foreign states in Burma also buttressed the Myanmar state’s power to repress the movement. In response, the pro- democracy movement began to organize transnational campaigns with other movements. Those movements were less centered on the Myanmar state, and instead centered on foreign democratic states and transnational corporations chartered within them that sought to profit from Burma’s opening market.

many major tactical decisions at the national level are based on consultations with horoscopes and obscure number charts. It was popularly understood that Ne Win revered the number ‘‘9’’ as the most auspicious of all numerals. ‘‘Ko nawin kane,’’ a phrase which means ‘‘the astrological calculation of the number ‘9’,’’ is invoked playfully in teashop conversation as a pun [nawin/Ne Win], playing on Ne Win’s name. For example, when the military retook control of the state on September 18, 1988, it is widely believed that the date was deliberately chosen on the basis of ko nawin kane. September is the ninth month of the year. The number 18 is divisible by 9 and, moreover, the first digit (1) and the second digit (8), when added together, equal 9. Underground pro-democracy activists in Burma creatively manipulated the Burmese com- moner’s attentiveness to Ne Win’s obsession with numerology, particularly the number 9, in its deployment of symbolic politics to mobilize the ‘‘9-9-99 uprising,’’ which it launched on September 9, 1999. In contrast to the mass direct action of the Four Eights Affair eleven years prior, the activists deployed new forms of collective action, including ‘‘cat and mouse’’ guerilla tactics, symbolic protests, and dozens of transnationally coordinated demonstrations with activists in countries around the world, that were designed to get the Myanmar state to ‘‘jump at shadows’’ and demonstrate to an international audience the military’s willingness to use repressive measures that could be easily exploited by activists in transnational media campaigns. The intention was not to mobilize citizens to take to the streets. Rather, it was to create the impression in the minds of state authorities that such a conventional uprising might take place. The state predictably responded by ordering soldiers to occupy the streets to intimidate citizens into remaining in their homes, and by indiscriminately arresting hundreds of citizens who were not even engaged in protest. The timing of the protest coincided with Myanmar’s recent induction to the Association of Southeast Nations (ASEAN), whose member states justified Myanmar’s inclusion based on the argument that they could constructively engage and steer the junta toward more democratic rule.

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Foreign states have been reticent to publicly ally themselves closely with the Myanmar state since 1988. Nevertheless, many of them, includ- ing the United States, have helped to sustain it. The Myanmar military’s response to the revolutionary crisis that it faced in 1988 quickly became the target of two different globalization discourses deployed by foreign actors. One of these globalization discourses promoted ‘‘free trade,’’ and the other proclaimed support for ‘‘human rights.’’ The resulting dis- cursive contention yielded two polarized international foreign policy positions: (1) ‘‘constructive engagement,’’ which prescribes international economic trade and development as the surest route to political stability and democratization; and (2) multilateral ‘‘economic sanctions’’ imple- mented through the coordinated action of individual nation-states against rogue-state challengers to the international community’s new global order.

The transnational networks of actors supporting each of these for- eign policies all proclaimed their support for human rights, while simultaneously jockeying for favorable economic partnerships and trade relations with the Myanmar military ruling the state. Moreover, these foreign policy discourses were mediated by a cultural structure of neo-liberalism that channeled state power toward positions of discur- sive stalemate, and toward practices that sustained the structures of military repression in Burma. That is, although these two foreign policies have become polarized as competing discourses at the interna- tional level, taken together they effectively channel discursive con- tention within a framework of conceptual distinctions that re-inscribes the hegemonic power of the globalization discourse. In practice, how- ever, neither of these international foreign policies curbed, nor were they intended to curb, transnational oil and gas corporations from seeking highly profitable new investment and development opportu- nities in Burma. For these corporations, Burma represented a crucial link to future natural gas markets in Southeast Asia and, most impor- tantly, China (Dale 2003: chs. 4 and 6).

Although the Burmese pro-democracy movement has not mounted a significant internal challenge to the Myanmar state since 1988, a good deal of pro-democracy movement activity has been taking place outside of Burma. By 1994, the Burmese pro-democracy activists-in-exile had forged alternative transnational networks that strategically chose to target the new transnational trade relations being forged by the military state. Instead of focusing their protest efforts on the military state of Burma, they expanded the scope of their collective action to target the

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foreign states, transnational corporations, and international trade organizations that were conducting business (and, in some cases, alleg- edly colluding in abusive human rights practices) with the Myanmar state. In my broader study of the Free Burma Movement (Dale 2003), I identify several transnationalist ‘‘Free Burma’’ discourses generated by these alternative transnational networks that have intentionally chal- lenged both the neo-liberal dimensions of the discourse on constructive engagement and the nationalist dimensions of US federal discourse on economic sanctions that had become institutionalized in foreign policy toward Burma.

Under the banner of the ‘‘Free Burma’’ movement, and linking grassroots movements in both the East and West, the Burmese pro- democracy activists-in-exile have helped organize transnational legal campaigns waged in alliance with local state and municipal govern- ments in the United States and Australia, as well as non-state actors, including regional governing bodies like the European Union, non- governmental organizations (NGOs) throughout East and Southeast Asia, international nongovernmental organizations (INGOs), and vol- untary associations on every continent and in over twenty-six countries (Dale 2003: 5). The movement has also attracted pre-existing trans- national advocacy networks that defend issues like human rights, women’s rights, the degradation of the natural environment, labor rights, indigenous people’s rights, and socially responsible corporate investment, and has even created new principled-issue networks, like those now forming around the international ‘‘right to know’’ (about the labor conditions and environmental impact of proposed development projects that are financed through transnational corporations in partner- ship with the state) (Dale 2003: 113).

It is also at this time that the Free Burma movement began to develop and voice a transnationalist discourse on human rights and their protection against the abusive practices of corporations partner- ing with the Myanmar state. It is a discourse reflecting several trans- national strategies deployed by the Free Burma movement that move beyond holding accountable the Myanmar state for its human rights abuses, economic mismanagement, and political illegitimacy.6 It arti- culates an alternative understanding of the relationship between

6 Dale (2003) describes several of the transnational legal campaigns that the Free Burma move- ment activists organized, including a selective purchasing campaign comprised of over thirty cities in the United States and the State of Massachusetts, all of which adopted ‘‘Free Burma laws that forced corporations to choose between doing business with the Myanmar junta or with

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political processes in Burma and global market dynamics, and depicts a variety of ways in which actors outside of Burma have helped to sustain the Myanmar state’s repression of democratic change.

CREATING A TRANSNATIONAL LEGAL SPACE

In 1996, a dozen ethnic-minority peasants from Burma sued the Unocal Corporation in a US court in a case titled Doe v. Unocal. Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997); 27 F Supp 2d 1174 (C.D. Cal. 1998); 67 F Supp 2d 1140 (C.D. 1999); 110 F Supp 2d 1294 (C.D. Cal. 2000); and 403 F 3d 708 (9th Cir. 2002). They alleged that Unocal had been complicit in human rights abuses against them and demanded that Unocal stop the human rights abuses and pay money damages. For eight years, this case wound its way through the courts. Then, suddenly, in December 2004, Unocal announced that it had reached a settlement with the plaintiffs (Lifsher 2005; EarthRights International 2005a). This was clearly a victory for the peasants.

What makes this transnational legal action significant is that, had the court been left to decide the case, and had it ruled in favor of the peasants (an outcome that Unocal clearly thought likely), it would have been the first time that foreigners had won a case against a transnational corporation in a US court for an injury that took place in another country. The peasants filed the suit under the United States Alien Tort Claims Act, 28 USC x1350. Since Doe v. Unocal, over a dozen similar suits have been filed against other corporations on the model of the transnational legal strategy used in the Unocal case.

The judicial struggle of the Doe v. Unocal case, in itself, represents a stunning achievement for the Free Burma Movement. This long shot of a transnational legal strategy soon became a landmark suit. The pub- licity from the suit brought stories of Burma’s struggle for democracy into living rooms across the United States. But the negative publicity that this case generated is not ultimately what threatens Unocal’s corporate conduct. Rather, this case threatens Unocal’s ‘‘bottom line’’ of profitability by forcing it to build into its calculus the costs of litigation and liability for violating the human rights of foreign nation- als in foreign countries in which it does business. It also sends a clear message to other corporations: if the activists win, corporations must

these US municipal and regional-state governments. The National Foreign Trade Council ultimately sued the State of Massachusetts in a case that went to the US Supreme Court, which forced Massachusetts to later rescind this legislation.

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consider these costs in deciding whether to partner with rogue states. This could provide an important tool for weakening the authoritarian grip of Burma’s ruling junta and others like it which depend upon foreign corporate investment. Most importantly, this campaign created what I call a ‘‘transnational legal space.’’

What I mean by transnational legal space are the discourses con- structed at the interstices of existing state legal systems that identify institutional arrangements or legal mechanisms that present opportu- nities for making crimes or torts committed in one state actionable in the legal system of another state. Transnational legal space therefore also provides an opportunity for mediating how the emerging rules of global markets are politically, legally, and morally constructed. While this space may include international fora, (i.e., contexts that represent states and their agents interacting among themselves), it is especially meant to include transnational interactions, (i.e., contexts that repre- sent interactions including at least one non-state actor). For example, by bringing a lawsuit against Unocal Corporation, otherwise powerless Burmese peasants were able to create a transnational legal space in which they could argue for the institutionalization of democratic mar- ket practices such as those that ban slavery.

What is important to grasp here is that the notion of ‘‘transnational legal space’’ represents a contested terrain of legal discourse. As Mark Goodale argues in the Introduction to this volume, ‘‘discursive appro- aches to human rights assume that social practice is, in part, constitutive of the idea of human rights itself, rather than simply the testing ground on which the idea of universal human encounters actual ethical or legal systems’’ (pp. 8–9 above). Transnational legal space is a discursive field. A discursive field is in part bounded by norms. But, the symbolic dimension of any given norm is never completely fixed. We can speak of norms that have varying degrees of durability or stability, but there is no reason to assume that this underlying symbolic dimension of a norm is fixed once and for all. As soon as we begin to question why a norm exists, or why it should be enforced to address a given social condition, we are entering the world of discourse.

Discourse structures the symbols that give meaning to norms. Sym- bols have no inherent meaning. They are polysemous. It is only when a symbol is brought into relation with another symbol that mean- ing emerges. That is, meaning derives from how we give structure to symbols. Discursive action provides such a structure. Discourse has the potential to transform the meaning of a given norm by bringing

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together polysemous symbols in new combinations – in new relation- ships to each other – and altering the original meaning of these symbols. Thus, discursive action can provide new ways of understanding norms, and serve as a vehicle for bringing new interpretive claims regarding norms into the mix.

Also, Goodale reminds us of a key fact about human rights discourse: ‘‘the sites where human rights unfold in practice do matter, and these sites are not simply nodes in a virtual network, but actual places in social space, places which can become law-like and coercive’’ (p. 13 above). If we think of ‘‘place’’ as spaces that have become embedded with mean- ing, and understand that meaning is produced, reproduced, and trans- formed within social relations and through social practices, then we can begin to understand the importance of transnational legal space and transnationalist discursive practices for the construction and progres- sive development of human rights norms.

Transnational legal space suggests a site for examining proce- sses through which economic globalization becomes institutionally embedded in legal, moral, and political relations that are discursively constituted through conflicting and contradictory legislative, judi- cial, and administrative struggles. The focus here is on the discur- sive struggles of a not-yet-institutionalized space of globalization in which any existing transnational norms, like the prohibition against the use of slave labor, are culturally refracted through competing interests and experiences. The judicial, administrative, and legislative dimensions of discursive struggle among state and non-state actors shape the institutional boundaries of the emerging transnational legal terrain.

This very premise is an interrogation of the globalization discourse: first, because it assumes that states are still critical actors in the con- struction of a regulatory infrastructure for globalization; and, second, it assumes that markets, especially global markets, are always embed- ded to a greater or lesser extent in social relations of governance. The neo-liberal idea that markets could be ‘‘free’’ of (or completely dis- embedded from) such relations is a utopian impossibility (see Block 1990, 2001). In this case, it is the transnational legal action (inclu- ding discursive action) of the Free Burma movement’s participants and allies who initiate and sustain these struggles through conflict with their targets and challengers, whose norms of neoliberal eco- nomic ‘‘free trade’’ and ‘‘constructive engagement’’ (among others) they contest.

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USING THE ALIEN TORT CLAIMS ACT TO SUE

CORPORATIONS

The Doe v. Unocal suit, filed under the Alien Tort Claims Act (ATCA), deploys a transnational strategy through which the Free Burma movement attempts to use the statute for the first time to hold liable in a US court transnational corporations, not just state actors or private individuals, for their complicity in human rights abuses com- mitted outside the United States in furthering their transnational joint ventures with states like Burma. The original legislators of this statute had never, nor could have, imagined using it for this purpose. Yet, movement activists, deploying a transnationalist discourse, creatively appropriated this statute to address relations among states, citizens, corporations, and human rights that had significantly changed over the two centuries since ATCA’s adoption. This suit illustrates how movement activists created a transnational legal space to shape the meaning and application of the ATCA for reigning in the power of transnational corporations that violate human rights.

An appreciation for how the Doe v. Unocal suit brought under the ATCA provides an example of a transnational legal space begins with understanding the historical development of the Act itself, and how the peasants and their lawyers reappropriated it in a new way. In 1789, the First Congress of the United States adopted the ATCA. It remained largely unused for the next two centuries. The text of the Act is short. It reads simply, ‘‘The district courts shall have original jurisdiction of any civil action by an alien [non-United States citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.’’ 28 USC x1350. The ATCA is not a human rights law per se, but it allows for civil suits for violations of the law of nations. The ‘‘law of nations’’ is the law of international relations, embracing not only nations but also individuals, such as those who invoke their human rights or commit war crimes.7

The members of the United States’ First Congress were obviously cognizant of the ‘‘law of nations’’ as they crafted their nascent nation’s Constitution. Yet, they could not have anticipated, in 1789, the extent to which the law of nations would develop over the course of the following two centuries. Nor, for that matter, could they have imagined

7 This is the definition of the law of nations that the Ninth Circuit Court of Appeals used in Doe v. Unocal Corp., 395 F 3d 932, 944 n. 12 (9th Cir. 2002).

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the radical development of two other legal concepts that have signifi- cantly transformed the context within which contemporary actors have begun to interpret the ATCA: ‘‘human rights’’ and ‘‘the corporate rights of personhood.’’

The Law of Nations Although litigation under the ATCA remained dormant for two cen- turies following its passage, lawyers in the United States appropriated it during the past two decades to challenge the abuses of foreign state- agents, and even non-state actors, that were committed in foreign states between non-US citizens. While some have cheered these ATCA cases as a progressive step forward in the development of inter- national norms, others have decried the very same cases as a creep- ing American imperialism which threatens to export the legal standards of the United States to other nations, raising the question of whether these ATCA cases represent an erosion of state sover- eignty in sheep’s clothing.

In 1980, lawyers at the Center for Constitutional Rights rediscov- ered ATCA and put it to modern use in the landmark case of Filartiga v. Pena-Irala, 630 F 2d 876 (2d Cir. 1980).8 The decision in that case interpreted the ATCA to provide jurisdiction for US courts in cases where the perpetrator (even though not a US citizen) is properly served within the United States’ borders, but it left open whether the ATCA applies only to state actors or also to non-state actors. In addition, this decision drew attention, amidst increasing international concern with human rights issues, to a new legal tool that human rights advocates might find workable in a variety of related cases. As Andrew Ridenour explains: ‘‘The resulting body of jurisprudence has slowly expanded over the past twenty years to deal with an otherwise open area of law: civil remedies for certain violations of international law’’ (2001: 584).

Subsequent courts in the United States have generally followed the interpretation set out in Filartiga, holding that the ATCA not only provides jurisdiction, but also authorizes plaintiffs to base their sub- stantive claims on international law norms. In re Estate of Ferdinand E. Marcos Human Rights Litig., 25 F 3rd 1467, 1475 (9th Cir. 1994), cert. denied, 513 US 1126 (1995). Courts also have relied on this

8 As Ridenour (2001) explains, although plaintiffs had invoked the alien tort statute in numerous suits prior to 1980, only two suits had been successful under the statute (see Abdul-Rahman Omar Adra v. Clift 1961; Bolchos v. Darrel 1795).

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interpretation to suggest that plaintiffs do not have to base their causes of action on the municipal law of the forum or of the site of the tort. Xuncax v. Gramajo, 886 F Supp 162, 181–183 (D. Mass. 1995).

However, courts have debated whether the statute provides a cause of action against a party that has violated international law. One of the most difficult issues facing the courts has been that of determining what constitutes a violation of the law of nations. In Tel-Oren v. Libyan Arab Republic, the District Court for the District of Columbia reasoned that:

The law of nations never has been perceived to create or define the civil actions to be made available by each member of the community of nations; by consensus, the states leave that determination to their respective municipal laws . . . In consequence, to require international accord on a right to sue, when in fact the law of nations relegates decisions on such questions to the states themselves, would be to effectively nullify the ‘law of nations’ portion of [ATCA].

(Tel Oren v. Libyan Arab Republic, 726 F 2d at 778 [D.C. Cir. 1984])

That is, the law of nations itself does not provide rights of action, thus Congress must have intended for ATCA to grant a cause of action to a foreign national to remedy a violation of the law of nations by another party. Yet, as the district court pointed out, this raises a further issue: how are the courts to derive from an amorphous entity (i.e., the ‘‘law of nations’’) standards of liability that are applicable in concrete situa- tions? The Tel-Oren court proposed an alternative approach to that of the Filartiga court. While ATCA can provide federal court jurisdiction to aliens alleging torts framed as a violation of the law of nations, the substantive right on which this action is based must be found in the domestic tort law of the United States.

In 1991, the US Congress passed the Torture Victim Protection Act (TVPA) with the intention of augmenting the Filartiga approach and extending it to citizens of the United States.9 The TVPA states that:

An individual who, under actual or apparent authority, or color of law, of any foreign nation, subjects an individual to torture shall, in a civil

9 The House of Representatives stated: ‘‘The TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 [the Alien Tort Claims Act], which permits Federal district courts to hear claims by aliens for torts committed ‘in violation of the law of nations’ . . . Judge Bork questioned the existence of a private right of action under the Alien Tort Claims Act, reasoning that separation of powers principles required an explicit – and preferably contempo- rary – grant by Congress of a private right of action before U.S. courts could consider cases likely to impact on U.S. foreign relations . . . The TVPA would provide such a grant . . .’’ (US House Judiciary, Committee 1991: 3–4.)

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action, be liable for damages to that individual; or subjects an individual to extra judicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

(Torture Victim Protection Act of 1991, 28 USC x 1350 et seq., affirmed by 470 US 1003 (1985))

Since Congress passed this statute, courts have held, that regardless of the original intent that Congress may have had in adopting ATCA, the TVPA demonstrates a contemporary legislative intent that ATCA does create a private cause of action for violations of international law. See, e.g., Xuncax v. Gramajo, 886 F Supp 162, 179 (D. Mass. 1995). In other words, the TVPA gave new meaning to the law of nations, permitting non-state actors to be sued under ATCA for violations of international law, provided that the tort represents the violation of a norm that is universal, specific, and obligatory.

In 1995, the Court of Appeals for the Second Circuit Court drew upon Congress’ explicit intention in passing the TVPA to hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private indi- viduals. Kadic v. Karadzic, 70 F 3d 232, 241 (2d Cir. 1995). This in turn opened ATCA to being used to sue private individuals – not just states and their agents – who violate the law of nations. Even ‘‘private’’ individuals, that is, individuals who are not acting as agents of the state per se, but those who are found to be acting in cooperation with government officials or significant government aid when they allegedly committed a violation of the law of nations, were also within US court jurisdiction under the ATCA (Walker 1997).10

Thus, it is the intersection of ATCA, which is almost as old as the Republic, with recent developments in the domestic appropriation of international law that created the legal opportunity, or critical

10 In this case filed against Radnovan Karadzic following civil war in former Yugoslavia, the court provided a reasoned analysis of the scope of the private individual’s liability for violations of international law. The Second Circuit court disagreed with the proposition ‘‘that the law of nations, as understood in the modern era, confines its reach to state action. Instead, [the court held] that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.’’ Kadic v. Karadzic, 70 F 3d at 239 (1995). While international law proscribes crimes such as torture and summary execution only when committed by state officials or under their legal authority, the law of nations has historically been applied to private actors for the crimes of piracy and slavery, and for certain war crimes. Kadic v. Karadzic, 70 F 3d at 243 n. 4 (1995). Thus, individual liability may apply when torture or summary execution are perpetrated as a war crime. Kadic v. Karadzic, 70 F 3d at 239 (1995).

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discursive space, for suing the Unocal Corporation. The activist attor- neys representing the Doe plaintiffs pushed the argument further. As individual private actors, corporations too, they asserted, are capable of violating and being held liable for a new class of international norms which had emerged officially in only the past two decades: jus cogens norms.

The human rights regime and corporate personhood An important factor that has influenced the changing relationship between state sovereignty and the law of nations is the development of the international human rights regime. As Sarah Cleveland has cogently argued, this regime has been

enunciated through a loose network of general treaties promulgated by the United Nations; rights-specific regimes which are promoted by intergovernmental entities and international organizations [e.g., the International Labor Organization]; regional regimes of conventions and oversight; and universal customary prohibitions that have evolved through treaties, the practices of states, and the efforts of nongovern- mental and private actors.

(Cleveland 2001: 20)

Emerging from these efforts has been an unevenly developed global system of normative rules relating to human rights. Not all human rights are equal before the law. Comprising this global system of rules are two tiers of human rights: (1) jus cogens norms and (2) treaty rights and customary obligations erga omnes (Cleveland 2001). This has implications for those filing suits under the ATCA.

Treaty rights, of course, are detailed in the formal instrument of the human rights regime. These international treaty obligations cover a wide range of protections for human rights by creating binding obliga- tions between party states. A state which accedes to these conventions becomes obligated to every other state to uphold the promises of the treaty and ‘‘submit[s] its performance to scrutiny and to appropriate, peaceful action by other parties . . .’’ (Henkin 1981: 1, 15). It should be noted that Myanmar is a member of both the United Nations and the International Labor Organization (ILO).11

11 The ILO, which is the international body responsible for defining and implementing interna- tional labor norms, has played a significant role in helping certain labor rights, including the prohibition against slavery and forced labor, to attain broad recognition among states as fundamental human rights. Its eight conventions explicitly setting forth ‘‘fundamental

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Beyond those human rights formally expressed in these treaties, the law of nations recognizes certain rights to be universally accepted and binding on all sovereign states as either jus cogens or erga omnes prin- ciples of customary international law. Jus cogens norms (literally mean- ing ‘‘the highest law’’) hold the highest hierarchical position among all other norms and principles (Bassiouni 1996: 67). In 1969, the Vienna Convention on the Law of Treaties first defined jus cogens norms as principles ‘‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’’ (Vienna Convention of the Law on Treaties, 1155 UNTS 331, 344, Art. 53). They represent the higher of the two tiers of human rights to which I alluded above. As a conse- quence of this standing within the law of nations, nearly all courts around the world (including US courts) deem jus cogens norms to be ‘‘peremp- tory’’ and ‘‘non-derogable.’’ In other words, jus cogens norms are norms of international law that are binding on nations even if they do not agree with them. Any international agreement that would violate them would be void (Vienna Convention of the Law on Treaties, 1155 UNTS 331, 347, Art. 64). Any jus cogens violation, therefore, is also, by definition, a violation of the law of nations. The legal literature discloses that the following are broadly recognized rights that no state officially claims the right to violate and may be considered jus cogens principles of the human rights system: aggression, genocide, crimes against humanity, war crimes, torture, piracy, and slavery and slavery-related practices.12

Human rights obligations that enjoy the status of erga omnes norms share with jus cogens norms their universal character and are binding on all states. However, unlike jus cogens norms, erga omnes norms are not peremptory norms which prevail over all other rules of customary law.

human rights’’ have been almost universally embraced, with the notable exception of the United States. The United States has, however, ratified the ILO’s Convention No. 105 regarding the abolition of forced labor. In 1998, the ILO made further progress toward universalizing these norms by adopting its Declaration on Fundamental Principles and Rights at Work, which binds all ILO members to the core labor principles, regardless of whether the member has ratified the relevant conventions. Commitment to these core ILO principles is a condition of ILO membership. Moreover, the basic, non-specific, labor rights have been incorporated into foundational international human rights instruments, all of which have received nearly universal acceptance.

12 Although identifying the international human rights principles that constitute jus cogens can be controversial, the Restatement (Third) of the Foreign Relations Law of the United States x 702 (1987) recognizes the following jus cogens norms: genocide; slavery or slave trade; summary execution or causing the disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimi- nation; and a consistent pattern or gross violations of internationally recognized human rights.

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Thus, we can think of treaty rights and erga omnes norms together as comprising the lower of the two tiers of human rights.

In the summer of 2004, the US Supreme Court held in the case of Sosa v. Alvarez-Machain that only a human rights violation of the high- est and most agreed upon magnitude qualifies for consideration under ATCA. In other words, only ATCA claims based on violations of jus cogens norms qualify (Sosa v. Alvarez-Machain, 542 US 692 (2004)). This institutionalization of jus cogens presupposes that some laws are inherent and inalienable, reflecting the notion that there are ultima- tely fundamental moral choices, and thus that there are non-economic boundaries which market participants should not be permitted to trans- gress; for example, that slavery is immoral. This case illustrates how transnational legal space mediates the process through which global markets become embedded in morality. This case also highlights dis- cursive contention around a statute that confers jurisdiction in a US federal court, but which does not create a substantive right. Yet, the ambiguity of this statute is powerful when combined with jus cogens.

The US Supreme Court ruled that ATCA can be used for jus cogens violations. But the question raised in Doe v. Unocal was whether a party could sue a corporation for these jus cogens violations. Over the course of the nineteenth and twentieth centuries, US courts have increasingly granted corporations the rights of personhood, allowing them to be treated legally as private individual persons, separately from the indi- viduals who own or operate them, and providing them with the same rights to due process under the law enjoyed by human persons (Benson 1999; Lamoreaux 2000). The plaintiffs in Doe v. Unocal essentially argued that with the rights of personhood also come responsibilities. Thus, they argued, corporate violations should be held liable under the ATCA for jus cogens violations in the same way that individuals are. The district court ruled that the plaintiffs in Doe v. Unocal have a legitimate cause of action, and agreed to hear the case. However, what remained at issue was whether Unocal should be held liable for the jus cogens violations suffered by the peasants. But Unocal settled the suit before this question was ever decided by the courts, and it remains to this day a central question for ATCA claims against corporations.

DISCURSIVE AMBIVALENCE

This transnational legal space has been significantly shaped by a trans- nationalist discourse on human rights. But the struggle to give this

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space meaning has also generated discursive ambivalence among some of the very actors who have voiced support for human rights within this space. In particular, corporations and states have diluted human rights discourse by combining it with others meant to protect corpora- tions from being held accountable for their abusive human rights prac- tices, and to minimize the state’s vulnerability to international legal standards.

The discursive ambivalence created by corporations Corporations have deliberately created discursive ambivalence on two fronts: first, by resisting attempts to subject corporations in general to an enforceable legal framework; and second, by actively consolidating a self-regulatory regime of ‘‘corporate social responsibility’’ that is based on a host of voluntary and non-enforceable instruments.

For example, in its effort to have Doe v. Unocal dismissed, Unocal deployed two main discourses, one relating to corporations’ liability for human rights abuses, and the other relating to the United States’ present foreign policy toward Burma. Unocal consistently proclaimed its support for human rights. At issue, they argued, was whether they should be held liable for the abusive human rights practices of the Myanmar junta. First, Unocal argued that it had a civil right to freely contract,13 and that holding it ‘‘vicariously liable’’ for the actions of its state partners would interfere with that right. Unocal fought for the use of a weaker domestic standard of liability (based on direct and active participation), rather than the more stringent standard (based on aid- ing and abetting abusive human rights practices) that is used in inter- national law.

Second, Unocal asserted that it could both profit from doing busi- ness with a repressive regime, and promote human rights. Moreover, Unocal has maintained that only continued trade and investment in Burma will restore democracy. However, this case presents a diffi- cult challenge to the general proposition asserted by ‘‘free trade’’

13 The District Court stated that the ‘‘plaintiffs’ allegations of Unocal’s complicity in forced labor do not meet the standard of liability used in U.S. civil proceedings.’’ That is, the plaintiffs could not show that Unocal ‘‘actively participated’’ in the forced labor. In effect, the District Court ruled that, because Unocal did not ‘‘actively and directly participate’’ in the alleged torts, they could not be held liable for those torts under the ATCA. Unocal subsequently asserted on its website that this ruling confirmed that they were not ‘‘vicariously liable’’ for the military’s torts. On appeal, the attorneys and amici curiae for the Doe plaintiffs successfully argued that the lower court had failed to properly use the international standard of ‘‘aiding and abetting’’ the alleged tort in testing Unocal’s liability. Doe v. Unocal Corp., 395 F 3d 932 (9th Cir. 2002).

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economists – that is, the proposition that trade liberalization policies promote economic growth and are therefore beneficial to countries that embrace them. Unocal argued that their presence in Burma and partnership with the Myanmar state was ultimately a positive force, because it was providing greater wealth for the country and jobs for Burmese citizens. They also argued that such economic growth would ultimately contribute to the democratization of Burma and empower its citizens to demand from its political institutions greater adherence to human rights norms.

However, this discursive ambivalence reveals a kind of disingenuous support for human rights in Burma. As Aung San Suu Kyi pointed out repeatedly, the vast percentage of wealth generated by foreign invest- ment is not used to improve the economic conditions of Burma’s citizens, but only to strengthen the military whose primary enemies are the economic minorities and pro-democracy activists within their country. It is also unclear how Unocal’s use of slave labor in the construction of its $1.5 billion dollar gas pipeline project is providing ‘‘jobs’’ for Burma’s citizenry in any meaningful sense. Nor is it clear how such corporate practices – despite the economic ‘‘growth’’ that they might create – would ultimately contribute to Burma’s democratiza- tion, much less promote human rights.

Indeed, the National Foreign Trade Council (NFTC), an associa- tion of over 680 transnational corporations (chartered in the United States), intervened in the lawsuit, arguing that the federal court should not hold Unocal liable because it could deter companies from eco- nomic engagement with the oppressive regime (Dale 2003: 279–285, and ch. 4). Although Unocal has repeatedly claimed to support human rights, they have continued to aid and abet the Myanmar state’s use of coerced labor, and have intentionally exploited the situation for profit.

Unocal argued before the District Court of California that granting jurisdiction over the Doe v. Unocal suit would interfere with the United States’ present policy on Burma, which Unocal stated was to refrain ‘‘from taking precipitous steps, such as prohibiting all American invest- ment that might serve only to isolate the [Myanmar state] and actually hinder efforts toward reform’’ (Doe v. Unocal Corp., 963 F Supp 880, 894 FN 17 (C.D. CA 1997)). In short, Unocal claimed that any court decision that might threaten the existence of such a previously estab- lished partnership (like that established between Unocal and the Myanmar Government) is an inappropriate intrusion by the court into United States’ foreign policy.

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The discursive ambivalence created by states The state too has shown discursive ambivalence with respect to human rights. The federal court refused all requests to dismiss the Doe v. Unocal case. Indeed, in response to Unocal’s claim that is has a civil right to freely contract, the Ninth Circuit Court pointed out that it is has a civil obligation to uphold the Thirteenth Amendment as well, which includes ‘‘forced labor’’ in its prohibition against slavery. ‘‘The fact that the Thirteenth Amendment reaches private action,’’ explained the court in its written decision, ‘‘in turn supports the view that forced labor by private actors gives rise to liability under [the] ATCA’’ (Doe v. Unocal Corp., 395 F 3d 932, 946 n. 18 [9th Cir. 2002]).

The federal court also explained that because forced labor is a jus cogens violation, not only can a private party be held liable, but they should be subject to the stronger international, not the weaker domes- tic, civil standard of liability, namely, ‘‘aiding and abetting’’ rather than ‘‘direct and active participation.’’14 Under the international standard of aiding and abetting a jus cogens violation, the test for whether Unocal is liable is based not on their exercise of ‘‘control’’ over the Myanmar military’s actions, but rather on whether Unocal could, or should, have been able to foresee a reasonable likelihood of the Myanmar military’s using the material support and information that Unocal provided them to commit a jus cogens violation.15

As evidence of Unocal’s ‘‘aiding and abetting’’ the Myanmar mili- tary’s policy of forced labor in connection with the pipeline, it poin- ted to the testimony from numerous witnesses, including several of

14 The District Court incorrectly borrowed the ‘‘active participation’’ standard for liability from war crimes before Nuremberg Military Tribunals involving the role of German Industrialists in the Nazi forced labor program during World War II. The Military Tribunals applied the ‘‘active participation’’ standard in these cases only to overcome the defendants’ ‘‘necessity defense.’’ In the present case, Unocal did not invoke – and could not have invoked – the necessity defense. The court notes that the tribunal had defined the necessity defense as follows: ‘‘Necessity is a defense when it shown that the act charged was done to avoid an evil both serious and irreparable; that there was no other adequate means to escape; and that the remedy was not disproportionate to the evil.’’ Doe v. Unocal Corp., 395 F 3d 932, 948 n. 21 (9th Cir. 2002).

15 ‘‘We require ‘control’ to establish proximate causation by private third parties only in cases . . . where we otherwise require state action. In other cases – including cases such as this one – where state action is not otherwise required, we require no more than ‘foreseeability’ to establish proximate causation. This requirement is easily met in the present case, where Unocal Vice President Lipman testified that even before Unocal invested in the Project, Unocal was aware that the ‘option of having the [Myanmar] [M]ilitary provide protection for the pipeline construction . . . would [entail] that they might proceed in the manner that would be out of our control and not be in a manner that we would like to see them proceed,’ i.e., ‘going to excess.’ ’’ Doe v. Unocal Corp., 395 F 3d 932, 954 n. 32 (9th Cir. 2002).

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the plaintiffs themselves, that they were forced to clear the right of way for the pipeline and to build helipads for the project before construction of the pipeline began, which were then used by Unocal to visit the pipeline during the planning stages, as well as to ferry their executives and materials to the construction site. In terms of Unocal’s practical assistance, Unocal hired the Myanmar military to provide security and build infrastructure along the pipeline route in exchange for money and food. Unocal also provided the Myanmar military with photos, maps, and surveys in daily meetings to show them where to provide the security and build the infrastructure which Unocal had hired them to do (Doe v. Unocal Corp., 395 F 3d 932, 952–953 [9th Cir. 2002]).

The court further pointed to admissions made by Unocal repre- sentatives in two separate contexts that support the conclusion that Unocal’s assistance had a ‘‘substantial effect on the perpetration of forced labor, which most probably would not have occurred in the same way without someone hiring the Myanmar military to provide security, and without someone showing them where to do it.’’ The first admission was that of Unocal Representative Robinson to the US Embassy in Rangoon (in the once-classified ‘‘Robinson cable’’ that was forwarded to the US State Department), which read: ‘‘Our asser- tion that [the Myanmar military] has not expanded and amplified its usual methods around the pipeline on our behalf may not with- stand much scrutiny’’ (Doe v. Unocal Corp., 395 F 3d 932, 953 [9th Cir. 2002]).

The second admission was that of Unocal President Imle who, when confronted by Free Burma and human rights activists in January 1995 at Unocal’s headquarters in Los Angeles, acknowledged to them that the Myanmar military might be using forced labor in connection with the project by saying that ‘‘[p]eople are threatening physical damage to the pipeline,’’ that ‘‘if you threaten the pipeline there’s gonna be more military,’’ and that ‘‘[i]f forced labor goes hand and glove with the military yes there will be more forced labor’’ (Doe v. Unocal Corp., 395 F 3d 932, 941 and 953 [9th Cir. 2002]). Notably, the court observed that on the basis of the same evidence, Unocal could even be shown to have met the standard of ‘‘active participation’’ erroneously applied by the District Court (Doe v. Unocal Corp., 395 F 3d 932, 948 n. 22 [9th Cir. 2002]).

Responding to Unocal’s claim that this ATCA suit represents an unconstitutional intrusion by the judiciary into the United States’

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foreign policy toward Burma, the District Court disagreed with Unocal’s argument. First of all, instead of interpreting the State Department’s foreign policy intentions for itself, the court asked the State Department directly to clarify its foreign policy position regarding Burma. In the ‘‘Statement of Interest of the United States,’’ the State Department wrote that ‘‘at this time the adjudication of claims based on allegations of torture and slavery would not prejudice or impede the conduct of U.S. foreign relations with the current government of Burma.’’16

Second, the court reasoned that, even if Unocal is correct in drawing upon the Congressional debates over whether or not to impose sanc- tions on Burma as a valid indicator of the Congressional and Executive foreign policy position, that debate revolved around how to improve conditions in Burma by asserting positive pressure on the SLORC through investment in Burma.17 Yet, this lawsuit does not question this foreign policy. Instead, the court explained:

The [Doe] Plaintiffs essentially contend that Unocal, rather than encouraging reform through investment, is knowingly taking advantage of and profiting from [the] SLORC’s practice of using forced labor and forced relocation, in concert with other human rights violations, includ- ing rape and other torture, to further the interests of the Yadana gas pipeline project. Whatever the Court’s final decision in this action may be, it will not reflect on, undermine or limit the policy determinations made by the coordinate branches with respect to human rights viola- tions in Burma.

Doe v. Unocal Corp., 963 F Supp 880, 895 (C.D. Cal. 1997).

In other words, the District Court asserted that the foreign policy of the United States, regardless of its position on the influence of corpo- rate investment in Burma, does not intend to protect corporate activity that violates human rights violations. The District Court rejected

16 National Coalition Government of the Union of Burma v. Unocal, Inc., 176 FRD 329, 362 (C.D. Cal. 1997). Judge Paez initially authored the orders granting in part and denying in part Defendants’ Motions to Dismiss. See Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997). Judge Lew later authored the order granting Defendants’ consolidated Motions for Summary Judgment. See Doe v. Unocal Corp., 110 F Supp 2d 1294 (C.D. Cal. 2000).

17 Statement of Sen. John McCain, 142 Cong. Rec. x 8755 (daily ed. July 25, 1996), quoted in Doe v. Unocal Corp., 963 F Supp 880, 894 n. 17 (C.D. Cal. 1997). As Paez stated in his published court opinion, ‘‘Even accepting the Congressional and Executive decisions as Unocal frames them, the coordinate branches of government have simply indicated an intention to encourage reform by allowing companies from the United States to assert positive pressure on SLORC through their investments in Burma.’’

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Unocal’s argument to have the suit dismissed on the grounds that it represented an impediment to the federal government’s foreign policy (National Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 FRD 329, 354 n. 29 [C.D. Cal. 1997]).18

However, we have also seen how the US Supreme Court has sought in Sosa v. Alvarez-Machain to contain the extent to which interna- tional human rights law might become enunciated within the United States’ federal court system. Furthermore, the executive and legis- lative branches of the Federal Government have been exercising additional power to delimit ATCA. For example, bowing to the poli- tical pressure of corporations, Congress could easily create limitations on the use of ATCA. In October 2005, California Senator Dianne Feinstein, who serves on the Senate Energy and Natural Resource Committee, introduced S. 1874, a bill to reform the ATCA. Human rights groups like EarthRights International (ERI) were quick to denounce the bill as the ‘‘Torturer’s Protection Act’’ (EarthRights Inter- national 2000b).

The bill prohibits any suit where a foreign government is responsible for the abuse within its own territory. ERI points out that this alone would eliminate most ATCA cases. The bill excludes from lawsuits war crimes, crimes against humanity, forced labor, terrorism, and cruel, inhuman and degrading treatment. It also requires that the defendant be a ‘‘direct participant’’ in the abuse. In essence, it argues that courts should use civil rather than international standards (of ‘‘aiding and abetting’’ the abuse) in assessing liability. Also, as ERI correctly warns, ‘‘Feinstein’s bill gives the [Bush] Administration a blank check to inter- fere [in court cases] and have any case it chooses dismissed’’ (EarthRights International 2000b). Among the corporate beneficiaries would be Chevron, who has donated $30,800 to Feinstein’s senatorial campaigns since 1989, according to the Center for Responsive Politics (Baker 2005). Also noteworthy is that Unocal maintained its headquarters in California since 1890, until it merged with Chevron Texaco (now Chevron) on August 10, 2005. Unocal is now a wholly-owned subsi- diary of Chevron Corporation.

18 The Ninth Circuit Court stated: ‘‘We agree with the District Court’s evaluation that ‘[g]iven the circumstances of the instant case, and particularly the Statement of Interest of the United States, it is hard to imagine how judicial consideration of the matter will so substantially exacerbate relations with [the Myanmar Military] as to cause hostile confrontations.’’ Doe v. Unocal Corp., 395 F 3d 932, 959 (9th Cir. 2002).

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This is not to suggest that the bill’s passage is a foregone conclusion. Only one week after introducing S. 1874, Feinstein submitted a formal letter to Chairman of the Senate Committee on the Judiciary Arlen Specter requesting that he not proceed with the legislation at this time. Feinstein’s letter explains:

The legislation in question is designed to address concerns about the clarity of the existing Alien Tort Claim statute in light of the recent Supreme Court decision Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). However, I believe that the legislation in its present form calls for refinement in light of concerns raised by human rights advocates, and thus a hearing or other action by the Committee on this bill would be premature.

Although several California corporations would benefit from S. 1874, it is not yet clear that these corporations will ultimately wield more influence over Senator Feinstein than human rights advocates.

There are, however, also pressures from the executive branch bear- ing on the future application of ATCA. The federal court’s decision to hear Doe v. Unocal prompted other transnational activist networks to help file more such ATCA suits against corporations – particularly, though not exclusively, oil corporations.19 Chevron is a defendant in one ATCA lawsuit relating to its complicity in the killing of peaceful protestors by the Nigerian military20 (Bowoto v. Chevron Texaco Corp., 312 F Supp 2d 1229 [N.D. Cal. 2004]). An ATCA suit was also filed in New York by the family of late Ogoni activist playwright Ken Saro- Wiwa against Royal Dutch [Shell] Petroleum alleging that the corpo- ration had conspired with the military tribunal in Nigeria which hanged Wiwa, along with eight other activists who were organizing opposition to Royal Dutch Shell operations in their native Ogoniland on the delta

19 There have been other ATCA cases against corporations outside the oil industry. Coca-Cola, for example, have been sued under ATCA for their complicity in the murder and intimidation of union members from their Columbian factory. And, although the courts rejected their first ATCA claim in 1989, the new flurry of ATCA cases against corporations has encouraged a renewed effort by citizens in Bhopal, India, to hold Union Carbide liable for the 1989 gas-leak disaster that caused thousands of deaths and permanent health problems.

20 The suit, which the plaintiffs originally filed against a pre-merger Chevron, seeks to hold the company responsible for both the deaths of protesters who occupied a Nigerian oil drilling platform in 1998, and the attacks on residents of two Nigerian villages in 1999. The protesters were shot and killed by Nigerian security forces who were flown to the site in helicopters that were used by the joint venture that ran the platform. Both cases involve projects of companies that were Chevron Texaco’s subsidiaries, rather than the parent company itself. Attorneys and activists have asserted, however, that liability for these wrongdoings should rest with the parent corporation and be pursued in the country where that parent corporation is chartered.

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of the Niger River (Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 [2d Cir. 2000]).21 Also, in 2001, eleven plaintiffs from the Aceh pro- vince of Indonesia’s Sumatra Island, with the help of the International Labor Rights Fund, filed a suit using the ATCA against the Exxon Mobil Corporation in a suit titled Doe v. Exxon Mobil (Doe v. Exxon Mobil Corp., 393 F Supp 2d 20 [D.D.C. 2005]).22

Yet, it is not clear whether these cases strengthened ATCA as a tool for addressing human rights abuses against corporations, or simply provided legal fodder that enabled the Supreme Court to justify nar- rowing the spectrum of human rights abuses committed by corporations for which the federal district courts may serve as a venue in ATCA suits. As the ATCA case against Unocal lumbered through the appeals court, the swifter decisions in these other ATCA cases provided useful discursive resources for Unocal’s struggle to influence the courts to decide these legal conflicts in its favor. This became a significant factor after the new US administration (with its strong ties to the oil industry under George W. Bush, Dick Cheney, and Condoleezza Rice) began to discursively redefine its foreign policy around ‘‘counter-terrorism.’’

In early August 2002, the State Department warned the District Court of the District of Columbia that the Doe v. Exxon Mobil case ‘‘would hinder the war on terrorism and jeopardize U.S. foreign invest- ment in a key ally [Indonesia]’’ (Alden 2002). The Financial Times reported that ‘‘a former State Department official,’’ had stated that the Department’s legal affairs office ‘‘saw an irresistible opportunity to strike a blow against the Alien Tort Claims Act’’ (Alden 2002). Yet, the official also reported that the State Department’s letter came ‘‘after a heated debate inside the agency, with its human rights bureau arguing that U.S. intervention in the case would mar U.S. credibility on issues of corporate social responsibility,’’ while other officials were ‘‘worried

21 The case is still working its way through the Federal District Court after the US Supreme Court refused to hear arguments for the dismissal of the suit in March 2001, effectively granting the New York court jurisdiction.

22 Exxon and Mobil merged in 1999. The International Labor Rights Fund is an advocacy organization dedicated to achieving just and humane treatment for workers worldwide, and the same organization who helped the National Coalition Government of Burma file their case against Unocal. The suit alleges that Exxon Mobil had been complicit in human rights violations committed by Indonesian military units who were hired to provide security for their natural gas field located in the Aceh province. Since 1975, the Indonesian military has had a history of violence and repression toward the Aceh ethnic minority and their Islamic separatist movement. While under contract with Exxon Mobil, allege the Doe plaintiffs, these military units committed widespread abuses, including murder, torture, rape, and kidnapping of the Aceh local population.

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that the spate of court cases is angering US allies and interfering with the government’s foreign policy authority’’ (Alden 2002). Publicly, however, the government issued a statement that claimed that ‘‘letting the case go to trial would harm the national interest, including the war on terrorism, and efforts to improve the Indonesian military’s record of human rights abuses’’ (Efron 2002). During the same week, Unocal lawyers asked California State Superior Court Judge Chaney, who is presiding over a California ‘‘Unfair Business Practices’’ claims in a case based on the same facts as Doe v. Unocal, to seek a similar government opinion, asserting that many of the arguments in the Doe v. Exxon Mobil case were ‘‘equally applicable’’ to the Doe v. Unocal case.

These examples also highlight how economic globalization, and the transnational legal space for regulating it, are always subject to politics. This law, interpreted by a court and subject to amendment by a federal congress, reminds us of the vital role that states play in the process of globalization. All of these dimensions of state action (legislative, admin- istrative, and judicial) remain crucial to the unfolding struggle over the rules and institutional arrangements of economic globalization.

Because human rights discourse is so often invoked as a political, legal, and moral resource for addressing (and diffusing contentious challenges to) the dehumanizing consequences of economic global- ization, it is important to focus on its many forms of practice – including the discursively ambivalent practices of corporate and state agents that combine human rights discourse with others that are meant to protect corporations from being held accountable for their abusive human rights practices, as well as those that are meant to minimize the state’s vulnerability to international legal standards. Transcending the parti- cularities of any specific lawsuit under the ATCA, we may there- fore speak of a strategy that employs powerful discursive, ideological, and practical devices designed to stabilize this transnational legal space around voluntary and legally non-binding practices of social responsibility.

CONCLUSION

This case study has implications for existing theory on transnational movements and their relationship to human rights. Keck and Sikkink’s Activists Beyond Borders (1998a) has arguably influenced the theoretical discussion of transnational movements more than any book published in the past five years. This influence is all the more impressive since the

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focus of their research is not on transnational movements per se, but rather on what they call ‘‘transnational advocacy networks’’ – that is, transnational networks of activists, distinguishable from other trans- national networks largely by the centrality of principled ideas or values in motivating their formation (Keck and Sikkink 1998a: 1; Keck and Sikkink: 1998b: 217). Despite their efforts to distinguish such trans- national social formations from transnational movements (see, e.g., 1998b: 236), their metaphor of the ‘‘boomerang pattern’’ to des- cribe the influence characteristic of transnational advocacy networks – particularly under conditions in which channels between the state and its domestic actors are blocked – has itself channeled the interpretations of many observers of transnational social movements.

When channels between the state and its domestic actors are blocked, the boomerang pattern of influence characteristic of transna- tional networks may occur: domestic NGOs bypass their state and directly search out international allies to try to bring pressure on their states from outside. This, claim Keck and Sikkink, is most obviously the case in human rights campaigns (1998a: 12). Their model actually illustrates an additional step in this process whereby the domestic NGOs that have been blocked by their state activate the network whose members pressure their own states and (if relevant) a third-party organization, which in turn pressure the blocking, i.e., target, state.

This model focuses almost exclusively on interactions between states and civil society. They provide no conceptual space for examin- ing interactions between markets and society. Corporations and market relations do not appear in Keck and Sikkink’s conceptual model of how transnational social movements or transnational advocacy networks exert pressure for changing the human rights conditions that motivated their action. Yet, as we have seen in the case of the Free Burma move- ment, the trade relations between states and transnational corporations may constitute a very different kind of target and may require a differ- ent kind of pressure for affecting social change than that presumed by Keck and Sikkink’s model.

Keck and Sikkink correctly emphasize the continuing significance of states, their reasons for doing so betrays, in light of the empirical evidence presented in this chapter, a questionable assumption regarding human rights practices and their implications for transnational move- ments. They claim that governments are the primary violators of rights (1998a: 12). Based upon this assumption, they build the conceptual logic of their boomerang pattern: ‘‘When a government violates or

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refuses to recognize rights, individuals and domestic groups often have no recourse within domestic political or judicial arenas. They may seek international connections finally to express their concerns and even to protect their lives’’ (1998a: 12).

One of the lessons that we should take from the transnational campaigns of the Free Burma movement is that transnational corpo- rations, as much as governments, may also be significant violators of human rights. In some cases, transnational corporations may even work together with states in violating them. Moreover, the Doe v. Unocal, and other cases filed against both corporate- and state-violators of human rights under the ATCA reflect a transnational legal space where individuals and groups outside the United States may well find recourse within the judicial arenas of the US federal courts. That is, the domestic state in which human rights victims hold their citizen- ship does not necessarily have a monopoly on their access to a judicial arena. Each of these points taken on their own may seem like trivial tinkering with Keck and Sikkink’s model. Taken together however, they begin to suggest an alternative pattern of transnational pressure that is distinctly different from the ‘‘international pressure’’ depicted in their model.

Keck and Sikkink’s treatment of ‘‘international pressure’’ seems to suggest practices whereby foreign states are persuaded – via combina- tions of various types of politics (information, symbolic, leverage, and accountability) – to intervene in the affairs of the target state either directly or else through a mediating intergovernmental organization. However, the case study that I present in this chapter suggests a differ- ent pattern of pressure whereby foreign states neither intervene directly in the affairs of the target state, nor through a mediating intergovern- mental organization. The various types of politics identified by Keck and Sikkink are still important to this alternative pattern of pressure, but they are deployed within a transnational legal space over legisla- tive, administrative, and judicial maters of US law that mediate how global markets (in this case linking corporations chartered in the United States with the Myanmar state) become embedded in politics, law, and morality. It is through these legislative, administrative, and judicial dimensions of state action, and at multiple spatial levels of state action (municipal, regional, and federal) that the United States exer- cises pressure – transnational, as opposed to international, pressure – on the transnational corporations that buttress the power of the Myanmar state. That is, Keck and Sikkink focus on international

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pressure that states exert on other states (sometimes mediated through intergovernmental organizations), but they provide no conceptual space for considering the transnational pressure that states exert on transnational corporations. Such pressure may well contribute to social change within the blocking state that has forged business relations with the targeted transnational corporations. Only with substantial concep- tual stretching might one suggest that this pattern of pressure represents a state exerting pressure on another state.

The case of the Free Burma movement illustrates how transnational movements that focus on influencing domestic policies in democratic states are not necessarily less effective in enhancing representation of groups suffering under authoritarian rule. Although a transnational movement campaign’s focus on jus cogens violations may seem overly narrow or obscure, it may have a very significant impact on global governance. The transnationalist discourse deployed by the Free Burma activists has effectively problematized the discursive fusion of ‘‘free trade’’ and ‘‘human rights’’ asserted by the discourse on ‘‘constructive engagement’’ in the context of addressing the abusive practices of the Myanmar state. This case also illustrates how groups suffering under authoritarian rule may be repressed by not only the domestic policies of authoritarian states, but also by the domestic policies of democratic states that facilitate the undemocratic practices of the transnational corporations that collaborate with authoritarian states in repressing groups that live there. When we pay closer attention to these trans- national connections between democratic and authoritarian states, their domestic policies, and their citizens, as well as to the transnational corporate practices and partnerships that span the boundaries of demo- cratic and authoritarian states, it blurs the binary conceptual distinc- tion through which we differentiate states as either ‘‘democratic’’ or ‘‘authoritarian.’’ This provides the first analytical step toward creating new possibilities for imagining transnational legal action that effec- tively challenges the dominant relations and discourses sustaining such a reified conceptual distinction between democratic and authori- tarian states.

ATCA is a potentially useful tool for furthering human rights. But it is also one that, when combined with other countervailing discourses, may become so diluted or de-clawed that it fails to retain the power or scope to reach some of the most egregious violators and violations of human rights. The struggle over ATCA illustrates the ambivalence and discursive dilemmas of foreign policy conservatives who have

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appropriated the language of international human rights for their own purposes. The consequence is that they are in an awkward position in trying to draw a line that immunizes US firms from complicity in such abuses. Yet, I have argued, even in the current political environment there are reasons to believe that this transnational legal strategy, using ATCA to hold liable corporations that aid and abet human rights violations, has legs.

This legal strategy represents one of the most significant efforts of the past century to reign in the power of transnational corporations. The case of Doe v. Unocal dramatically demonstrates the potential for using transnational legal action to challenge neo-liberal understandings of globalization. Rather than allowing the proponents of neo-liberal glob- alization to dismiss human rights concerns as ‘‘artificial obstacles to free trade,’’ the federal courts have been providing a venue for discussing corporations’ responsibilities and liabilities with regard to human rights. By shaping the moral boundaries within which corporations compete for profits, these venues have provided an important institu- tional mechanism and discursive resource for further discussion of how and why global markets are not self-regulating, but rather are (and must always be) institutionally constructed through and embedded in poli- tics, law, and morality.

Despite the ambivalent discursive practices of both corporate and state actors who have donned the mantle of human rights, we should resist insisting that human rights discourse itself is necessarily hegem- onic. Doing so serves ultimately to further empower those who seek to instrumentally subordinate human rights norms to the control of mar- kets and particular nation-states. Rather we must focus on the ways that competing social actors – including corporations and states – draw upon human rights discourse and combine it with diverse configura- tions of multiple discourses to insert their own networks’ social arrange- ment of power, practice, and meaning. Human rights discourse is not oppressive; but how we institutionalize the legal arrangement of human rights in practice can be.

This case, therefore, speaks not only to the discursive ambivalence of human rights practice, but also to what Goodale refers to as the ‘‘betweenness’’ of human rights discourse:

the ways in which human rights discourse unfolds ambiguously, without a clear spatial referent, in part through transnational networks, but also, equally important, through the projection of the moral and legal

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imagination by social actors whose precise locations – pace Keck and Sikkink – within these networks are (for them) practically irrelevant.

(Goodale, Introduction, p. 22 above.)

An approach highlighting transnational legal discourse is important precisely because the state’s legal discourse and norms are so often hegemonic. Appreciation for the success of these transnational legal campaigns begins not with an accounting of victory or defeat in the court, or on the floor of the legislature, nor merely with an assessment of their direct role in transforming existing international law or global norms, but rather with the capacity of their participants to create an alternative discursive space in the legal records of the transnational struggles that take place in these institutions of the state.

These records, combined with the experiences of allied movement participants supporting the campaigns from outside the legal institu- tional arena, provide critical resources for sustaining the kind of public collective memory that future transnational campaigns and movements will have to draw upon in the inevitably incremental struggle for democratic global change. Transnational discursive strategies help us to re-conceptualize the relations within which we institutionalize eco- nomic globalization, as well as the way that we imagine the possibilities of participating in its institutionalization.

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