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The Nation

1789 Law Acquires Human Rights Role

Alien Tort Claims Act is the basis of a suit against Unocal over abuses in Myanmar.

June 16, 2003|Lisa Girion | Times Staff Writer

In 1789, George Washington signed the nation's first Judiciary Act, which in a single sentence opened U.S. courts to foreigners. For the next 190 years, the provision would be used but a handful of times, effectively becoming relegated to the recesses of history.

And there it might well have remained, had it not been for a New York attorney named Peter Weiss.

An intellectual property lawyer and human rights advocate, Weiss was sitting at his desk in 1979 when he took an urgent phone call from Amnesty International.

"There is a notorious Paraguayan torturer sitting in Brooklyn about to be deported," Weiss recalls being told. "You've got to stop him."

"How are we going to do that?" asked Weiss, nonplused.

"That's your problem."

The novel answer Weiss came up with would spawn a series of human rights lawsuits that, over the years, have won multimillion-dollar judgments for thousands of victims against deposed dictators and rogue thugs. Among them: late Philippine President Ferdinand Marcos and the fugitive former Bosnian Serb leader Radovan Karadzic.

Now, Weiss' solution has taken a new twist: It could change the way multinational corporations do business in foreign countries notorious for human rights violations.

More than two dozen suits have been filed in U.S. courts over the last decade against U.S. corporations -- including ChevronTexaco, Fresh Del Monte Produce Inc. and Bank of America Corp. -- in connection with alleged human rights abuses around the globe. None of these cases has made it to trial.

But one, involving Unocal Corp., is close. The El Segundo oil company is accused of complicity in human rights abuses allegedly committed by soldiers in Myanmar who were guarding a pipeline partly owned by Unocal. Last year, a three-judge panel of the U.S. 9th Circuit Court of Appeals found that there was sufficient evidence for Unocal to stand trial. Tuesday, at a hearing before an 11-judge panel of the appeals court, Unocal will argue against last year's ruling.

If the case does wind up before a jury, it will be a sweet moment not only for the plaintiffs directly involved -- 15 Myanmar refugees now living in hiding -- but for Peter Weiss as well.

As soon as Weiss got off the telephone with Amnesty International 24 years ago, he called together lawyers for the Center for Constitutional Rights, where he serves as vice president, and explained the situation: A former Paraguayan police inspector suspected of torturing and killing the teenage son of a political dissident had been discovered in Brooklyn and was about to be deported.

The dissident, Dr. Joel Filartiga, and daughter Dolly wanted to hold Amerigo Pena-Irala accountable for Joelito Filartiga's slaying and keep him in the United States to face trial.

The brainstorming began. How could the lawyers convince a U.S. court to accept jurisdiction over a suit in which all of the parties were foreign nationals and the scene of the crime was beyond U.S. borders?

The lawyers needed a plan and had little time. The deportation was just three days away, and Filartiga would lose his chance at justice if Pena-Irala went back to Paraguay.

That's when Weiss remembered some research he had done when contemplating a suit against U.S. military commanders on behalf of a survivor of the 1968 My Lai massacre in Vietnam. That suit never was filed, but Weiss had stumbled upon the all-but-forgotten provision of the Judiciary Act of 1789.

"It just hadn't been used very much," Weiss said.

Yet Weiss was struck by the potential of the provision. Known by itself as the Alien Tort Claims Act, it appeared to give foreigners the right to sue in federal court over violations of international law. Because international law encompasses universally recognized human rights, Weiss reasoned, a violation such as torture ought to be actionable.

The theory was drafted into a suit. But by the time the documents were ready, it was late on a Friday afternoon, the day before Pena-Irala's scheduled deportation. Manhattan traffic was horrible, and Weiss feared the courthouse doors would close before he got there. "We kept saying we should have taken the subway."

Weiss made it to the courthouse in time, and Filartiga eventually won a $10.4-million verdict. More significant, however, was the U.S. 2nd Circuit Court of Appeals' decision that the law Weiss had rediscovered allowed the Filartigas to take Pena-Irala to trial.

"Everyone thought we were crazy," Weiss said, "but we went ahead and did it anyway."

After a few victories against individuals, lawyers began to aim the Alien Tort Claims Act at a new target: corporations.

In 1993, a Massachusetts attorney named Cristobal Bonifaz sued Texaco Inc., accusing the oil company of poisoning the Amazon rain forest in his native Ecuador and endangering the health of its inhabitants by dumping oil wastes. (The company, now ChevronTexaco Corp., recently won a ruling sending the suit to an Ecuadorean village -- as opposed to a U.S. courtroom -- for trial.)

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