Global Policy Forum

By Marcel Herbke

Human rights groups around the world are voicing their disapproval of a new bill introduced in the U.S. Senate last week. The bill would limit efforts to hold human rights violators accountable for their actions and greatly swing legislation in favor of large multinational corporations.

Senator Dianne Feinstein (D-Calif.), who received $10,000 from Chevron's political action committee in May, introduced the bill S.1874 in congress on Oct. 17. In it she seeks to make changes to the Alien Tort Claims Act (ATCA), which currently allows foreigners to sue U.S. nationals for crimes committed on their land. The Senator has made no attempt to hide her motivations behind the new bill stating on Monday that "it is designed to balance the interests of U.S. companies and human rights groups."

The ATCA is the law under which Holocaust survivors were able to sue Swiss banks who benefited from the Holocaust. It is the law under which war criminal and Serb leader Radovan Karadzic was sued. And more applicable to Feinstein's motivations; it is the law under which, in April this year, Burmese villagers sued oil company Unocal for human rights violations.

The lawsuit was brought against Unocal for encouraging the torture, rape and murder of Burmese villagers by Burmese government soldiers in order to allow the corporation's pipeline to go ahead. It is the first case against an American corporation, and human rights lawyers believe it could be the motivation for the new bill. About six similar cases are currently pending and involve some the world's largest and most powerful companies -- among them, Royal Dutch/Shell, ChevronTexaco, ExxonMobil and Coca-Cola. Defendants in these cases argue that they are not directly responsible as the actual crimes are usually committed by the foreign governments. These (usually poor) governments are under contractual obligations to protect the corporation's interests and often commit heinous human rights abuses in this role.

However, ties between the corporations and foreign government atrocities are often closer than just contractual obligations. In the pending Chevron case for example, soldiers were accompanied by Chevron personnel and were aboard a Chevron helicopter when they opened fire on unarmed protestors in Ecuador. In this incident two protestors were killed and one was taken away for torture. In the same case, where Ecuadorian locals living in the Amazon want Chevron to clean up the environmental mess their drilling has caused, two villages were also burned down. The soldiers were paid by Chevron's Nigerian subsidiary and were traveling in Chevron leased boats. The village attacks left several dead and many others missing. With a polluted water supply (according to independent lab reports, 15 sites had toxic contamination levels above Ecuadorian law), contaminated vegetables, destroyed villages and dead family members the victims decided to file a claim against Chevron under the ACTA. The lawsuit was filed in a San Francisco Federal Court by 88 people representing 30,000 Amazon residents. After numerous failed attempts by Chevron to have it dismissed, the case is now set for October 16th 2006. However, with Unocal's recent settlement setting a precedent, the corporations have taken anticipatory action with an attack on the underlying legislation.

The proposed reform makes five crucial alterations to the current legislation. First, it would exclude any suit where a foreign government is "responsible for committing" abuses within its own territory. This variation alone would make almost all previous cases null. Secondly, it limits the number of abuses for which suits can be brought. Notable exclusions are war crimes, crimes against humanity, forced labor, terrorism and cruel or inhuman treatment. Thirdly, the new law would require that the defendant is a "direct participant" in the abuses. This alteration could be seen as a loophole for the corporations currently refuting their liability on the basis of not actually pulling the trigger. Fourthly, it would prohibit plaintiffs proceeding on a contingency fee basis. EarthRights International believes this alteration would "effectively prohibit any poor victims of human rights abuses from obtaining justice." The final alteration would allow the U.S. President to dismiss any case deemed to interfere with foreign policy. All this comes amid rising oil prices and even sharper rises in worldwide demand.

Concerned, the U.N. has begun drafting a set of laws to govern the behavior of multinationals in foreign countries; however U.S. officials have indicated they would prefer to leave it to their own courts. For this reason, argues EarthRights International, now is not the time to "water down the Americas most important human rights law" and "give corporations a freer hand to commit gross human rights violations."

Senator Feinstein's proposed reform is currently with the judiciary committee and it will probably take a few months before a decision is made.