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United States (U.S.) Court of Appeals for the Ninth Circuit: Doe I v. Unocal Corporation*

Published online by Cambridge University Press:  18 May 2017

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Judicial and Similar Proceedings
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International Legal Materials , Volume 41 , Issue 6 , November 2002 , pp. 1367 - 1399
Copyright
Copyright © American Society of International Law 2002

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Footnotes

*

2002 Cal. Daily Op. Service 9585.

References

Endnotes

1 Judge Paez initially authored the orders granting in part and denying in part Defendants’ Motions to Dismiss. See Doc I v. Unocal Corp., 963 F. Supp. 880 (CD. Cal. 1997); Nat’l Coalition Gov't of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (CD. Cal. 1997). Judge Lew later authored the order granting Defendants’ consolidated Motions for Summary Judgment. See Doe I v. Unocal Corp., 110 F. Supp. 2d 1294 (CD. Cal. 2000).

2 The Unocal Offshore Co. was originally owned by the Unocal International Corporation, a Delaware corporation and wholly-owned subsidiary of the Union Oil Company of California. In 1999, ownership of the Unocal Offshore Co. was transferred to Unocal Global Ventures, Ltd., a Bermuda corporation and wholly owned subsidiary of the Unocal International Corporation, “to achieve tax and cash management efficiencies.“

3 The Unocal Pipeline Corp. was also originally owned by the Unocal International Corporation. In 1998, ownership of the Unocal Pipeline Corp. was transferred to Unocal Global Ventures, Ltd.

4 Although anti-government rebels were active elsewhere in Myanmar, the record indicates that there was in fact little to no rebel activity in the region where the pipeline construction occurred, and that the center of the Myanmar civil war was 150-200 miles distant from the pipeline project.

5 Moreover, in March 1996, a cable from the U.S. Embassy in Rangoon reflects the Embassy's understanding that “the consortium building the pipeline pays the Burmese military a hard-currency fee for providing security.“

6 In the same year, the U.S. Department of State similarly reported that “the military Government [in Myanmar] routinely employs corvee labor on its myriad building projects” and that “the Burmese army has for decades conscripted civilian males to serve as porters.” U.S. Department of State, Country Reports on Human Rights Practices for 1991 796-97 (1992)

7 As noted above, the Production Sharing Contract between Total Myanmar and Myanmar Oil provided that” [Myanmar Oil] shall… supply [ ] or make available … security protection … as may be requested by [Total Myanmar and its assigns],” such as Unocal. (Emphasis added.)

8 Similarly, the briefing book that Total prepared for Unocal President Imle and Unocal CEO Beach on the occasion of their April 1996 visit to the Project listed the following “area[]of concern“: “army = additional burden on the local population.“

9 Also in 1995, Human Rights Watch informed Unocal that forced labor was so pervasive in Myanmar that Human Rights Watch could not condone any investment that would enrich the country's current regime. That same year, the General Assembly of the United Nations “strongly urged the Government of Myanmar… to put an end to … the practices of torture, abuse of women, forced labour …, and … disappearances and summary executions_” Situation of Human Rights in Myanmar, U.N. General Assembly, 50th Sess., Agenda Item 112(c), U.N. Doc. A/RES/50/194 (1995), http:www.un.org/documents/ga/res/50/ares50-194.htm.

10 Similarly, on May 20, 1996, a State Department cable stated: “Forced labor is currently being channeled, according to [non- governmental organization] reports, to service roads for the pipeline to Thailand There are plans for a helicopter pad and airstrip in the area … in part for use by oil company executives.“

11 Plaintiffs in both actions subsequently filed amended complaints that do not contain claims based on expropriation of property.

12 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).” Black's Law Dictionary 822 (7th ed. 1999).

13 Plaintiffs’ ATCA claims are timely under the ten-year statute of limitations we recently adopted for such claims. See Papa, 281 F.3d at 1011-13.

14 Jus cogens norms are norms of international law that are binding on nations even if they do not agree to them. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir. 1992).

15 We stress that although a jus cogens violation is, by definition, “a violation of ‘specific, universal, and obligatory’ international\ norms” that is actionable under the ATCA, any “violation of'specific, universal, and obligatory’ international norms” —jus cogens or not — is actionable under the ATCA. Papa, 281 F.3d at 1013 (quoting Marcos II, 25 F.3d at 1475). Thus, a. jus cogens violation is sufficient, but not necessary, to state a claim under the ATCA.

16 Our statement in In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 501-02 (9th Cir. 1992) (“Marcos /“), that “only individuals who have acted under official authority or under color of such authority may violate international law,” must be read like Judge Edwards’ concurrence in Tel-Oren, on which this statement exclusively relied. Marcos I, like Tel-Oren, involved torture, a crime for which there is no purely private liability under international law. See Tel-Oren, 726 F.2d at 794-95 (Edwards, J.. concurring); Kadic, 70 F.3d at 243.

17 The Thirteenth Amendment provides in part that “neither slavery nor involuntary servitude … shall exist within the United States.1’ U.S. CONST, amend. XIII, § 1. See also Tobias Barrington, The Thirteenth Amendment and Slavery in the Global Economy, 102 Colum. L. Rev. 973 (2002), for the proposition that “the knowing use of slave labor by U.S. based entities in their foreign operations constitutes the presence of ‘slavery’ within the United States, as that term is used in the Thirteenth Amendment,” id. at 978, and thai “if the allegations against it are true, then Unocal's participation in the Burma project makes out a strong case for a Thirteenth Amendment violation,” id. at 1034.

18 The fact that the Thirteenth Amendment reaches private action, see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-39, 20 L, Ed. 2d 1189, 88 S. Ct. 2186, 47 Ohio Op. 2d 43 (1968), in turn supports the view that forced labor by private actors gives rise to liability under the ATCA.

19 The statute provides that anybody who kidnaps any other person, or induces such other person to go anywhere, with the intent that such other person be sold into involuntary servitude or held as a slave, shall be fined or imprisoned as specified. See 18 U.S.C. § 1581.

20 Plaintiffs also argue that Unocal is liable for the conduct by the Myanmar Military under joint venture, agency, negligence, and recklessness theories. The District Court did not address any of Plaintiffs’ alternative theories. Because we reject the District Court's general reasons for holding that Unocal could not be liable under international law, and because we hold that Unocal may be liable under at least one of Plaintiffs’ theories, i.e., aiding and abetting in violation of international law, we do not need to address Plaintiffs’ other theories, i.e., joint venture, agency, negligence, and recklessness. Joint venture, agency, negligence, and recklessness may. like aiding and abetting, be viable theories on the specific facts of this ATCA case. Moreover, on the facts of other ATCA cases. joint venture, agency, negligence, or recklessness may in fact be more appropriate theories than aiding and abetting.

21 The Military Tribunal in one of these case defined the necessity defense as follows: “Necessity is a defense when it is shown that the act charged was done to avoid an evil both serious and irreparable; that there was no other adequate means of escape; and that the remedy was not disproportionate to the evil.” United States v. Krupp, 9 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1436 (1950) [“Krupp“]). (quoting 1 Wharton's Criminal Law 177 (12th ed. 1932)).

22 A reasonable fact finder could moreover conclude that Unocal's conduct met the “active participation” standard erroneously applied by the District Court. For example, Unocal Representative Robinson stated that “our assertion that [the Myanmar Military] has not expanded and amplified its usual methods around the pipeline on our behalf may not withstand much scrutiny.” Robinson is furthermore reported to have stated that “Total/Unocal uses [photos, maps, and surveys] to show the military where they need helipads built and facilities secured.” In addition, Unocal President Imle stated that “if forced labor goes hand in glove with the military yes there will be more forced labor” as the result of the Myanmar Military protecting the pipeline. Unocal thus resembles the defendants in Krupp, who “well knew that any expansion [of their business] would require the employment of forced labor,” 9 Trials at 1442, and the defendants in United States v. Flick, 6 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952), who sought to increase their production quota and thus their forced labor allocation, id. at 1198, 1202.

23 Because “the law of nations is part of federal common law,” Marcos I, 978 F.2d at 502, the choice between international law and the law of the forum state, which in the present case is California state law or our federal common law, is less crucial than the choice between international law and the law of the state where the underlying events occurred, which in the present case is the law of Myanmar. Moreover, as discussed later in this section, the standard for aiding and abetting in international criminal law is similar to the standard for aiding and abetting in domestic tort law, making the choice between international and domestic law even less crucial.

24 Because “moral support” is not part of the standard we adopt today, the concurrence's discussion in this context of “the international law regarding third party ‘moral support’ “is beside the point. Concurrence at 14252, see infra note 28.

25 We stress that our conclusion that application of international law is appropriate is based on the record in this case. In other cases with different facts, application of the law of the forum state — including federal common law — or the law of the state where the events occurred may be appropriate.

26 The Furundžija Tribunal based its actus reus standard for aiding and abetting on an exhaustive analysis of international case law and international instruments. See id. at UH 192-234. The international case law it considered consisted chiefly of decisions by American and British military courts and tribunals dealing with Nazi war crimes, as well as German courts in the British and French occupied zones dealing with such crimes in the aftermath of the Second World War. See id. at ffl[ 195-97. The international instruments consisted of the Draft Code of Crimes Against the Peace and Security of Mankind adopted by the United Nations International Law Commission in 1996, as well as the Rome Statute of the International Criminal Court “adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and … substantially endorsed by the General Assembly's Sixth Committee on 26 November 1998.” Id. at 227. It is hard to argue with the Furundžija Tribunal's reliance on these sources.

27 The Furundžija Tribunal based its mens rea standard for aiding and abetting on an analysis of the same international case law and international instruments mentioned above in note 26. See id. at ffll 236-49. The Tribunal's reliance on these sources again seems beyond reproach.

28 We note, however, that there may be no difference between encouragement and moral support. See Restatement (Second) of Torts § 876 cmt. d (stating that “encouragement to act operates as a moral support“). The concurrence claims: “Having declared … that the Yugoslav Tribunal's standard constitutes the controlling international law, the majority cannot then escape the full implications of being bound by the law it has selected” and “has lost whatever opportunity it had to pick and chose the aspects of international law it finds appealing.” Concurrence at 14256 n. 9. But nowhere in this opinion have we declared that the Yugoslav Tribunal's standard “constitutes the controlling international law,” id. (emphasis added), and as a result, we are also not “bound” by every aspect of that standard, the concurrence's protestations notwithstanding. In fact, we have merely declared that “we find recent decisions by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda especially helpful for ascertaining the current standard for aiding and abetting under international law as it pertains to the ATCA.” Supra at 14217. That is, we have done no more than declare that the decisions by these tribunals are one of the sources of international law, rather than the source of international law. Having done so, we then concluded that with respect to practical assistance and encouragement, these decisions accurately reflect “the current standard for aiding and abetting under international law as it pertain s to the ATCA,” and have left open the question whether this is also true with respect to moral support. This procedure is no particularly noteworthy, let alone improper. And the concurrence's repeated references to “the Yugoslav Tribunal's ‘moral support standard,” concurrence at 14255, 14256, are at best irrelevant and at worst intended to suggest that we, albeit unwittingly, adopted a standard which we, in fact, did not adopt, unwittingly or otherwise.

29 The evidence further supports the conclusion that Unocal gave “encouragement” to the Myanmar Military in subjecting Plaintiffs to forced labor. The daily meetings with the Myanmar Military to show it where to provide security and build infrastructure, despite Unocal's knowledge that the Myanmar Military would probably use forced labor to provide these services, may have encouraged the Myanmar Military to actually use forced labor for the benefit of the Project. Similarly, the payments to the Myanmar Military for providing these services, despite Unocal's knowledge that the Myanmar Military had actually used forced labor to provide them, may have encouraged the Myanmar Military to continue to use forced labor in connection with the Project.

30 Unocal argues that “Unocal is not vicariously liable for the Myanmar military's torts because the pipeline was constructed by a separate corporation,” i.e., the Gas Transportation Company, and because “there is no basis to pierce the corporate veils of [the Unocal Pipeline Corp.] or [the Unocal Offshore Co.]” We initially observe that there is evidence allowing a reasonable factfinder to conclude that the Unocal Pipeline Corp. and the Unocal Offshore Co. were alter egos of Unocal, and that any actions by the Unocal Pipeline Corp. or the Unocal Offshore Co. are therefore attributable to Unocal. This evidence includes the Unocal Pipeline Corp.'s and the Unocal Offshore Co.'s undercapitalization and the direct involvement in and direction of the Unocal Pipeline Corp.'s and the Unocal Offshore Co.'s business by Unocal President Imle, Unocal CEO Beach, and other Unocal officers and employees. See Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386(KMW), 2002 WL 319887, n. 14 (S.D.N.Y. Feb. 28, 2002) (holding in the ATCA context that “by involving themselves directly in [their subsidiary's] activities, and by directing these activities, [parent companies] made [their subsidiary] their agent with respect to the torts alleged in the complaint“). More importantly, we do not address — and neither did the District Court — whether a reasonable factfinder could hold Unocal “vicariously liable for the Myanmar military's torts.” (Emphasis added.) See supra note 20. Rather, we find that there is sufficient evidence to hold Unocal liable based on its own actions and those of its alter ego subsidiaries which aided and abetted the Myanmar Military in perpetrating forced labor. These actions include the employment of the Myanmar Military to provide security and build infrastructure along the pipeline route, and the use of photos, surveys, and maps to show the Myanmar Military where to do this. Unocal took these actions with the knowledge that the Myanmar army was likely to use and did in fact use forced labor “on behalf of the Project.“

31 In addition, some of the acts of murder, rape, and torture alleged by non-party witnesses apparently did not occur in fur herance of the forced labor program. Because this is not a class action, the context in which tortious acts alleged by non-party witnesses took place is immaterial to this discussion.

32 Because state action is not required in the present case, the District Court erred when it required a showing that Unocal “controlled” the Myanmar Military's decision to commit the alleged acts or murder, rape, and torture to establish that Unocal proximately caused these acts. See Doe/Roe 11, 110 F. Supp. 2d at 1307. We require “control” to establish proximate causation by private third parties only in cases under, e.g., 42 U.S.C. § 1983 — where we otherwise require state action. See, e.g., Arnold, 637 F.2d 1350, 1356-57. In other cases including cases such as this one — where state action is not otherwise required, we require no more than “forseeability” to establish proximate causation. See 637 F.2d at 1355. 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] Military 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.” (Emphasis added.)

33 The evidence also supports the conclusion that Unocal gave “encouragement” to the Myanmar Military in subjecting Plaintiffs to murder, rape, and torture. The daily meetings with the Myanmar Military to show it where to provide security and build infrastructure, despite Unocal's knowledge that the Myanmar Military would probably use murder, rape, and torture in the process, may have encouraged the Myanmar Military to actually use murder, rape, and torture. Similarly, the payments to the Myanmar Military for providing these services, despite Unocal's knowledge that the Myanmar Military had actually used murder, rape, and torture in the process, may have encouraged the Myanmar Military to continue to use murder, rape, and torture.

34 For the same reason, and contrary to the District Court's conclusion, Nelson also does not “undermine” our holding in Siderman. 965 F.2d 699, another case involving the third — rather than the first — exception in § 1605(a)(2).

35 Even if we were to affirm the District Court's grant of summary judgment on Plaintiffs’ ATCA claims for forced labor, murder, andrape, we would still reverse the District Court's denial of Plaintiffs’ Fed. R. Civ. P. 54(d)(l) Motion to Retax. The District Court concluded that Plaintiffs’ motion was, in actuality, a time-barred Fed. R. Civ. P. 59(e) Motion to Alter or Amend Judgment. The Supreme Court has observed, however, that Rule 59(e) covers only motions to reconsider “matters properly encompassed in a decision on the merits,” and does not cover motions that raise “legal issues collateral to the main cause of action.” White v. New Hampshire Dep't of Employment Sec, 455 U.S. 445, 451, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982). See also Whittaker v. Whittaker Corp., 639 F.2d 516, 520-21 (9th Cir. 1981). In their motion, Plaintiffs asked the District Court “not [to] require the plaintiffs to pay any of this cost bill” because of their indigency and the chilling effect of an award of costs. Plaintiffs’ indigency and the chilling effect of an award of costs are not “matters properly encompassed in a decision on the merits.” Rather, they are “legal issues collateral to the main cause of action.” Plaintiffs’ motion, therefore, did not have to be brought as a Motion to Alter or Amend Judgment within ten days of the judgment on the merits under Rule 59(e). Instead, it could be — and in fact was — brought as a Motion to Retax within five days of the taxing of the costs under Rule 54(d)(l). Plaintiffs’ motion was thus timely.

1 As the majority notes, such a norm is one that is “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 on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679; see also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir. 1992)

2 I do not read the majority opinion as holding otherwise. The opinion nowhere states that a third party can be liable for a governmental action only if that action constitutes a. jus cogens violation. Rather, I view the majority's interesting academic dissertation on why forced labor is like slavery and why slavery constitutes a jus cogens violation as background historical material that may be of interest to legal scholars but is unnecessary to its decision.

3 It is the rare Alien Tort Claims Act case that does not involve a foreign state or official as a defendant. Most international law norms apply only to states; a private party will ordinarily violate international law by its own actions only if it transgresses a legal norm that has achieved jus cogens status. See discussion, supra.

4 That the principles discussed in the text apply not only to traditional domestic legislation but to the Alien Tort Claims Act as well is demonstrated by a statement by the Eleventh Circuit in Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996). There, that court observed that the purpose of the ATCA is “to establish[]a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.“

5 The International Criminal Tribunal for the Former Yugoslavia was formed with the limited mandate of adjudicating allegations of human rights abuses that took place in the Balkans in the last decade. Established by Security Council Resolution 827 m May, 1993, it is a temporary body whose members are elected for four-year terms by the members of the United Nations General Assembly. The International Criminal Tribunal for Rwanda, which subsequently applied the Yugoslav Tribunal's test, is a similarly- constituted body.

6 The Restatement (Second) of Conflict of Laws, § 6, provides that the following factors are to be considered as part of a choice of law analysis: (1) the needs of the interstate and international systems; (2) the relevant policies of the forum, (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (4) the protection of justified expectations, (5) the basic policies underlying the particular field of law, (6) certainty, predictability and uniformity of result, and (7) ease in the determination and application of the law to be applied. “Federal choice of law rules follow the approach of the Restatement (Second) of Conflict of Laws.” In re Vortex Fishing Sys., Inc., 277 F.3d 1057, 1069 (9th Cir. 2002); see aho Chuidian v. Philippine Nat'I. Bank, 976 F.2d 561, 564 (9th Cir. 1992).

7 The two remaining Restatement factors are the first, “the needs of the interstate and international systems,” and the third, “the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue.” Restatement (Second) of Conflict of Laws, § 6.

8 As the Second Circuit explained in the landmark case of Filartiga, all international legal principles do not automatically become a part of the federal common law; only those that achieve the status of customary international law or are included in international treaties are incorporated as part of federal common law. A customary international law rule “results from a general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third) Foreign Relations Law, § 102. The Filartiga court observed, “the requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law.” 630 F.2d at 881 (quoting The Paquete Habana, 175 U.S. at 694). Thus, the Filartiga court reached its conclusion that a claim for torture was cognizable under the ATCA in large part because the prohibition on torture had become part of customary international law. Id.

9 In an effort to minimize the damage caused by its unfortunate decision to apply international law to the third-party liability issue, and perhaps to make that choice of law more palatable to American courts generally, the majority disclaims an integral portion of the international law standard it adopts, purporting to leave “to another day” the question whether moral support alone (whatever that may mean) is sufficient to give rise to thirdparty liability. See maj. op., 14219. However, by substituting international law standards for federal common law, rather than following federal common law and incorporating those portions of international law that attract sufficient legal support, the majority has lost whatever opportunity it had to pick and choose the aspects of international law that it finds appealing. Having declared that international law governs, and that the Yugoslav Tribunal's standard constitutes\ the controlling international law, the majority cannot then escape the implications of being bound by the law it has selected. Indeed, the majority, despite its disclaimer as to “moral support,” is no more successful in avoiding the consequences of its choice of the Yugoslav Tribunal's criminal standard than it is in avoiding the consequences of its predicate decision to reject federal common law as the appropriate rule for ancillary issues in Alien Tort Claims Act cases. See maj. op., n. 25.

10 For instance, liability for moral support raises the question whether political advocacy not imminently causing violence that would otherwise be protected by the First Amendment could be the source of ATCA liability under the majority's standard.

11 It is well-accepted that joint liability will exist where (1) parties intended to form ajoint venture; (2) parties share a common interest in the subject matter of the venture; (3) the parties share the profits and losses of the venture; and (4) the parties have joint control or the joint right of control over the venture. W. Keeton, PROSSER & KEETON ON TORTS, § 72 at 518 (5th ed. 1984).

12 In addition, the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605, demonstrates that agency liability is a general principle applicable to international entities. In that statute, an exception exists to the general sovereign immunity accorded to foreign states in American courts for certain commercial activities of agents of foreign nations. Id. § 1605 (a)(3).

13 I reach this conclusion in part because at common law, a defendant may be liable for harms caused by an entity that it negligently employs, even if no respondeat superior or agency relationship exists. See, e.g., Bennett v. United States, 803 F.2d 1502, 1505 (9th Cir. 1986) (holding that the U.S. government may be liable for damages arising from the kidnapping and raping of several children by a teacher hired by the government where the government knew or should have known that the teacher had a history of child molestation); see also VanOrt v. Stanewich, 92 F.3d 831, 837 (9th Cir. 1996) (stating that under Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), a municipality may be liable for the negligent hiring of municipal employees).“

14 The district court granted summary judgment for defendants in part because in its view plaintiffs produced insufficient evidence that Unocal proximately caused plaintiffs’ injuries. However, under none of the three federal common law theories discussed in the text is proximate cause a necessary element of Unocal's liability. If proximate cause applies at all, it applies to the question whether the Myanmar military was responsible for the international law violations. As a practical matter, if the alleged violations occurred there can be little doubt that they were proximately caused by the Myanmar military. As explained in the text, under any of the three theories, Unocal's liability is indirect; proximate cause is therefore irrelevant to plaintiffs’ claims against Unocal.

15 I agree with the majority's conclusion that there is insufficient evidence in the record to permit plaintiffs to proceed on a claim of torture, and would limit their claims to those alleging forced labor, murder, and rape. I would also note that the record is replete with horrific accounts of physical abuse of Myanmar villagers by members of the military. Because the victims in those accounts are not plaintiffs in this action, and this suit does not constitute a class action, many substantial allegations of wrongdoing may not give rise to liability as a part of this case.