CASE 8-4: DOE V. UNOCAL CORP.

1. Presented by: Surat Supitchayangkool CASE 8-4: DOE V. UNOCAL CORP.

2. Judicial Body United States District Court for the Central District of California, 1997

3. Facts In 1958, a military government overthrew Burma�s elected government In 1988, Burma�s military government jailed and killed thousands protester and named itself to be the State Law and Order Restoration Council (SLORC).

4. Facts 1982: the large natural gas deposits, which locate off the coast of Burma in Andaman Sea, were discovered and to become known as the Yadana field. About 1991, many international oil companies, which include Unocal Corp. and Total (the French oil company), began to negotiate with SLORC regarding oil and gas exploration in Burma. From negotiations: Yadana gas pipeline project was established to obtain and transport natural gas and oil via a pipeline from the Andaman Sea to Thailand via passing the plaintiff village (Tenasserim region of Burma).

5. 1992: the Myanmar government established the state-owned company, the Myanma Oil and Gas Enterprise (MOGE): To deal with the energy products and to produce and sell the nation�s oil and gas resources. MOGE auctioned off �a license to produce, transport, and sell the natural gas discovered in the Andaman Sea�. Total subsidiary of Total (French oil company), Total Myanmar Exploration and Production (TMEP), won the auction.

6. 1992: TMEP and MOGE formed the joint venture to be the Moattama Gas Project (the Project). 1993: Unocal Myanmar Offshore Company (UMOC) formed the joint venture with the TMEP. During the negotiation, Unocal talked with Total about the activities of SLORC to provide the protection for the pipeline construction and operation that it is out of our control for the activities of SLORC.

7. 1995: Human Rights Watch (HRW) complained Unocal about human rights violations of SLORC that: Forced relocation without compensation of families from land near/along the pipeline route Forced labor to work on infrastructure projects supporting pipeline Imprisonment and/or execution by the army of those opposing such actions

8. 1996: U.S. State Department cable reported the conversation between the U.S. government official and the CEO of Unocal, Roger Beach: SLORC has the responsibility to provide the security for the Yadana pipeline projects. Then, Total/Unocal cannot control SLORC�s activities to recruit civilian porters. In addition, on May 20, 1996 from NGO report, SLORC violated human rights by forced labor. May 20, 1996: NGO report, SLORC violated human rights which involuntary laborers are forced to hide into the bush outside camera range when foreigners came to inspect on daily by helicopter.

9. Does Unocal liable for torts, which Myanmar military did to plaintiffs for the benefit of the Yadana gas pipeline project? Issue

10. The case was dismissed. Unocal�s motion for summary judgment as to plaintiffs� federal claims is granted. Decision

11. Alien Tort Claims Act, a plaintiff must allege (1) Claim by an alien (2) Alleging a tort (3) Violation of the law of nations (international law)

12. From Filartiga v. Pena-Irala: torture was a violation of international law, which the Universal Declaration of Human rights stats that �no one shall be subject to torture�. Filartiga v. Pena-Irala showed that the Universal Declaration of Human rights has become part of customary international law. Then, in this case, forced labors were violations international law because the previous court showed that Universal Declaration of Human rights is customary international law.

13. To answer the question of �Does Unocal liable for torture abuse of forced labors?� Kadic v. Karadzic explained the private individual�s liability to violate crimes, such as torture and summary execution when individuals committed under color of law. The color of law means the actions of private individual to act �together with state officials or with significant state aid�.

14. According to plaintiffs, �Unocal�s participation in the Joint Venture constitutes state action under the joint action test�. From Gallagher v. Neil Young Freedom concert showed that �state and private entities must share a specific goal to violate the plaintiff�s constitutional rights by engaging in a particular course of action�. In this case, plaintiffs could not show the evidence that Unocal and SLORC had the share goal of joint action.

15. In addition, plaintiffs allege Unocal about the liability of forced labors, Slave trading is one of the crimes, which can apply to an individual liability under ATCA. From the case, the Myanmar government committed human rights abuse for forced labors to work. Plaintiffs could not find the evidences to show the court that Unocal employed forced or slave labor because the Myanmar military concealed its use of forced labor.

16. This case shows the international business practices to learn more on whether or not forced labor is prohibited by international law. The companies need to be careful to joint venture with the state-owned company, which the government in the host country has committed with human right violations.