to download the document in PDF format - Child Centre: Expert ...

The plaintiffs alleged various violations of jus cogens norms including: crimes againsthumanity, forced labour, torture; violence against women; arbitrary arrest and detention;cruel, inhuman or degrading treatment; wrongful death; battery; false imprisonment; andassault, all perpetrated by the Myanmar military. The California District Court grantedUnocal’s motion for summary judgment against all of the plaintiffs’ claims because it didnot find that the plaintiffs had “successfully shown that Unocal had ‘actively participated’in the forced labour.” Following dismissal on summary judgment, the plaintiffs appealedto the US Court of Appeals for the Ninth Circuit.A three-judge panel of the Ninth Circuit reversed the District Court’s decision and foundthat Unocal could indeed be held directly liable for aiding and abetting the Myanmarmilitary in committing violations of international law through forced labour and otherabuses. The Court further defined forced labour as constituting a violation of customaryinternational law and therefore sufficient to confer jurisdiction under the ATCA. The Courtthen proceeded to cite Kadic to explain that under the ATCA, proof of state action is notrequired in specific situations where private actors could be found liable for violations ofjus cogens norms.[The Ninth Circuit] determined forced labor was the modern day equivalent ofslavery and, therefore, a violation of a jus cogens norm … the court did not findproof of state action was required in proving acts of murder and rape becausethese acts were committed in furtherance of forced labour, a jus cogens norm …Thus the international norm of individual responsibility was held to extend toMNCs. 235Accordingly, this marks the first case to provide guidance in regards to approachingviolations committed by MNCs. In Unocal, Judge Lew, speaking for the majority, suggestedthat, “assuming a corporation is subject to personal jurisdiction in the US, it may be liablefor (1) its own violation of international law, and (2) those violations committed by itspartners in a joint venture, including foreign governments.” For this case Judge Lew ruledthat Unocal’s actions did not rise to the level of liability, however Judge Lew’s ruling didnot foreclose the possibility that ATCA could successfully be used against corporations infuture lawsuits.The Unocal decision was viewed as a major advancement for human rights activists whohave long desired to advocate against MNCs but who were frustrated by the lack of legalavenues available for adjudicating MNC human rights violations. Accordingly this caseprovides a warning to MNCs for their actions in foreign jurisdictions that result in humanrights violations in which they or their subsidiaries commit.Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children|55