Columbia Human Rights Law Review, Spring 2001 (32 Colum. Hum. Rts. L. Rev. 517)

This article explores the process and challenges of safeguarding anonymous plaintiffs who sue under the Alien Tort Claims Act (ATCA), such as in Doe v. Unocal. The article highlights the tension between certain plaintiffs' compelling need for confidentiality and the U.S. judicial system's tradtional emphasis on openness and defendants' rights. After reviewing the history and legal as well as policy issues surrounding anonymous litigation in U.S. federal court, the article surveys the procedural steps plaintiffs follow when seeking to sue with pseudonyms and discusses the use of court-structured protective orders. To demonstrate the complexities of anonymous litigation, the article examines two case studies based on real, ongoing litigation. The article concludes that despite the challenges, federal courts' willingness to grant anonymity to some plaintiffs is both justified and just, and that in the ATCA context such willingness helps facilitate adjudication of international human rights abuses and deter future violations.

Pseudonymity and the Alien Tort Claims Act

This report is a supplement to More of the Same: Forced Labor Continues in Burma (October 2000 – September 2001), which documents the continued use of forced labor by the Burmese military despite the government’s assertions that forced labor has ended.  This report demonstrates that civilians continue to be conscripted for forced labor by military units providing security to two natural gas pipelines in southern Burma, the Yadana and Yetagun pipelines.  The multinational oil companies that operate these pipelines, including TotalFinaElf (formerly Total) of France, Premier Oil of the United Kingdom, and Unocal of the United States, continue to be morally complicit and legally responsible for the forced labor occurring in the pipeline region.

Supplemental Report: Forced Labor

"For better or for worse, we have blood on our hands."
-- Sukumbhand Paribatra, Deputy Foreign Minister of Thailand

Since the early 1990's, a terrible drama has been unfolding in Burma. Three western oil companies -- Total, Premier, and Unocal -- entered into partnerships with the brutal Burmese miltary regime to build the Yadana and Yetagun natural gas pipelines. The regime created a highly militarized pipeline corridor in what had previously been a relatively peaceful area, resulting in violent suppression of dissent, environmental destruction, forced labor and portering, forced relocations, torture, rape, and summary executions.

EarthRights International co-founder Ka Hsaw Wa and a team of field staff traveled on both sides of the Thai-Burmese border in the Tenasserim region to document the conditions in the pipeline corridor. In the nearly four years since the release of "Total Denial" (1996), the violence and forced labor in the pipeline region have continued unabated. This report builds on the evidence in "Total Denial" and brings to light several new facets of the tragedy in the Tenasserim region.

Download: Total Denial Continues

Virginia Journal of International Law, Winter 2000 (40 Va. J. Int'l L. 545)

This article demonstrates that some victims of environmental abuses caused by transnational corporations may have strong claims in U.S. courts under the Alien Tort Claims Act. The article reviews voluminous sources of international law and shows how they establish norms of customary international law that plaintiffs can rely on to bring ATCA claims for redress of egregious environmental devastation. It explains that plaintiffs in appropriate circumstances may have claims asserting the right to life, the right to a healthy environment, crimes against humanity, race discrimination, genocide and cultural genocide.

The article also discusses many of the arguments corporate defendants have used to try to dismiss ATCA environmental and human rights cases. Claims similar to those addressed have been and are being litigated currently in suits against Union Carbide regarding the Bhopal disaster in 1985, Freeport-McMoRan regarding its mine in Irian Jaya, Rio Tinto regarding its Panguna mine in Bougainville, Texaco regarding its destruction of the Ecuadorean Amazon and Southern Peru Copper Corporation regarding its smelter in Ilo, Peru.

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Before Dick Cheney was selected as George W. Bush’s running mate, EarthRights International (ERI) had decided to look into oil services giant Halliburton, where Cheney was CEO.The reason for our interest was Halliburton’s prominent role in a corporate coalition called USA-Engage, an offshoot of the National Foreign Trade Council (NFTC) that has become an obstacle to democracy movements in the United States and in Burma, two countries where ERI works actively.

Halliburton's Destructive Engagement

Issue Paper of EarthRights International's Burma Project

Since 1988, when the Burmese military regime opened up the country to foreign investment after a generation of isolation, the country has seen no improvement on a whole range of indicators, such as education, health and poverty, that investment is supposed to help improve. Instead, investment has brought a doubling in the size of the country's army and major arms purchases that have in turn furthered the repression. Investment has also been concentrated in extractive industries, namely logging, gems and natural gas, resulting in the selling off of Burma's natural resources at alarming rates. The stream of refugees and migrants out of the country -- fleeing the human and economic devastation brought about by the regime -- is perhaps the clearest indicator that investment and business engagement with Burma are not working.

Destructive Engagement: A Decade of Foreign Investment in Burma

"Earth Rights lays out a compelling theory of advocacy that joins the vital energy of human rights activists and environmentalists with a well-grounded and far-reaching set of legal principles. This book is a powerful tool for organizing thoughts and action in defense of the environment and the people who depend on it."

-- Neil A. F. Popovic, Heller Ehrman White & McAuliffe, participating drafter of the Draft Declaration of Principles on Human Rights and the Environment, and Director of the U.N. Program, Earthjustice Legal Defense Fund

Poisoned or pillaged ecosystems are a breeding ground for all kinds of human rights abuses. And when human rights are not respected the natural environment loses its defenders, leading to a downward spiral of more human rights violations and ecological degradation. Given such linkages, this book presents the concept of earth rights: those rights that reflect the connection between human well-being and a sound environment. Drawing on examples from across the globe, it highlights the ways in which campaigns for human rights and environmental protection are often one and the same. The book concludes that environmentalists and human rights activists must begin to recognize that healthy ecosystems cannot be maintained without respect for human rights, and that human rights are unattainable without healthy ecosystems.

So it turns out that my "male" and "female" plots are the same story, after all....If you hold down one thing you hold down the adjoining. In the end, though, it all blows up in your face.

--Salman Rushdie

This report seeks to make visible the structural origins of the rape of ethnic Burmese women, with particular attention paid to the institution that nurtures the rapists, the Burmese army. The report is based on primary research consisting of original interviews with defectors from the Burmese army, and villagers who lived in close proximity to the army, often because their villages were occupied by the army.

By examining the military structures giving rise to prevalent rape, this report proposes not to absolve the soldier perpetrators of responsibilities for their crimes. Rather, we look for the root causes so we can advocate for institutional change as well as establish individual culpability and argue for individual punishment.

School for Rape: The Burmese Military and Sexual Violence

This issue paper is in response to the Assistant Secretary- General for Human Rights' note verbale (June 26, 1996), inviting nongovernmental organizations to comment on the issues raised in the final report submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities by its Special Rapporteur on human rights and the environment, Ms. Fatma Zohra Ksentini (E/CN.4/Sub.2/1994/9).

Human Rights and the Environment

Total Denial examines and assesses the impact of a major transnational investment scheme in Burma--the Yadana natural gas pipeline project--in terms of its effect on human rights, the environment and internal Burmese political processes. Produced by EarthRights International (ERI) and the Southeast Asian Information Network (SAIN), the report is based largely on extensive new eyewitness and victim testimony. An advance draft was issued in Burma's capital, Rangoon, on May 30, 1996, in response to government crackdowns on dissident political leaders and the escalating debate over foreign investment in the country. It is the first report of its kind to have been released from within Burma.

Total Denial