Katie Redford is spearheading a movement to hold international companies accountable for overseas abuse in their home court jurisdictions in the Western world, and in doing so, is opening up new possibilities in human rights law.
The New Idea
Katie introduced a simple and powerful idea into the human rights movement: that corporations can be brought to court for their role in overseas abuse. While American and European courts have customarily declined to hear cases where abuses have occurred outside their jurisdiction, Katie and her team at Earthrights International (ERI) are breaking their reluctance by uncovering legal tools and strategies that overcome the barrier of jurisdiction. With a realistic chance of legal recourse, victims and local human rights organizations can become more equal partners to their international counterparts. Katie’s work links concrete action in western courts to programs that develop human rights and environment groups in Asia, Africa, and Latin America.Earthrights’ work is having a transformative effect on the way citizens hold companies accountable. While successful civil cases bring damages payable to victims, they also fuel shareholder pressure, bringing the reality of the courtroom to bear on the boardroom. Progress in the courts then forces other business partners to steer clear of irresponsible projects. When Earthrights successfully won compensation for victims of abuse related to a Unocal project in Burma, the corporation attempted to recover the damages from its insurer. The insurer did not pay, but instead reviewed its policies to ensure that it would not be liable to cover damages for murder, rape, and torture. Then banks began reviewing their liability for funding the projects. Thus, liability for abuse becomes an important business issue, not merely the preoccupation of a few activists.
While business is globalizing fast, the social and legal systems that manage how businesses relate to the rest of society are far behind, still built to fit within national boundaries. When large corporations, based in the industrial world, act against the interests of people in other countries, they are beyond legal oversight at home, and are often more powerful than the courts in the places where they work. When the business is an extractive industry—logging, mining, oil and gas—conflicts between local people and big companies are common. Rural people occupying or owning lands rich in natural resources often wield even less political capital than their poor urban counterparts—and are often already embroiled in conflict, long before foreign investment concentrates the pressure and raises the profit potential of local resources. A recent example of the conflict between governments, corporations and local populations is seen in the role of U.S. oil giant Unocal (since purchased by Chevron) in developing the Yadana natural gas pipeline in eastern Burma. Unocal, with partners, is drilling for gas in the Martaban gulf, and then piping it overland through the Burmese jungle, to refineries in Thailand. The problem is that the pipeline runs through a region where the ethnic minority population has been in conflict with the government for decades. It is, in fact, a low-intensity war zone. To build the pipeline, Burma’s army launched a major military offensive which killed hundreds of civilians, forcefully relocated tens of thousands, and resulted in economic losses for rural people that will never be fully estimated. Extensive research and documentation has demonstrated that Unocal and other corporations were aware of the human rights abuses connected to the project, and may have been complicit in supporting and supplying military operations. So the question arises: to whom is a corporation accountable, when such questionable actions occur far from home, and in a legal vacuum of military dictatorship and the complete absence of the rule of law?In an effort to stem criticism, many corporations have adopted ethical codes of conduct to promote internal accountability. Yet without enforcement mechanisms, many (though not all) of these statements have had little real effect on corporate conduct. Other state-led international groups, namely the United Nations, have worked to create similar standards. The strongest result to date, the UN Global Compact, has promise, but its weakness is that it is entirely voluntary—it has no teeth. Nor have national-level systems stepped in to fill this gap. Before a set of intermediary rulings in the Unocal case, not a single national-level law anywhere in the world could hold corporations accountable for actions taken in another nation. The citizen sector, not corporations or governments, have been the most forceful and effective advocates for accountability. By documenting and publicizing abuse, they have made at least some progress in bringing to the public’s attention otherwise hidden problems. But they struggle with many obstacles. One major challenge is to extend the reach of legal systems to cover the actions of corporations operating outside the conventional jurisdiction of the courts. Naturally, corporations resist this strategy vigorously. Therefore the citizen sector needs to develop creative legal strategies to create real, firm, enforceable accountability. Other strategies, such as shareholder action, can supplement the law, but on their own are simply not powerful enough to make change.An equally pressing problem is how to link an immediate and urgent campaign to a long-term development of citizen-sector work among people affected by abuse. Human rights documentation has become something of an extractive industry itself, one that mines data, packages it for export, and uses it abroad. The benefit to the people suffering abuse occurs in increments too small to be felt on the ground. In fact, the biggest criticism waged against the major names in the human rights field is that they do little to develop the capacity of local citizens. In dire situations, such as that in Burma, international campaigns and even successful court cases rarely translate into quick and tangible change. But they can help by fueling the start of a domestic human rights movement among minority peoples living under serious threat. The combination of these strategies—effective international action and a substantial commitment to local work—is a promising but rare formula in pursuing human rights.
Katie and the organization she founded, EarthRights International, are building a body of case-law in the U.S. and other developed countries which allows citizens to sue a corporation in the corporation’s home country, even when the abuses occurred abroad. Through Earthrights’ recent victory using the Alien Tort Claims Act (ATCA) in the Doe v. Unocal case, Katie established the first ever legal precedent giving jurisdiction to a human rights abuse case in which the abuse took place in another country. This model forms the foundation for ERI’s work. Katie’s work on the ATCA established strong precedent but not impenetrable case law. Courts are unwilling to accept cases that differ dramatically from their predecessors, so Katie is working to slowly strengthen this precedent and gradually advance the courts’ willingness to look at corporate abuses abroad under the ATCA. ERI knows this work must be done meticulously, only through cases with a good chance of being won by virtue of the abuse in question and ERIs ability to document that abuse. Over the past 10 years, ERI has developed a strong evidentiary capability during this period, learning how to document testimony and evidence from abuses within Burmese border that is rarely admissible in U.S. courts. ERI is working to share its strategies so other groups can bring forth similar cases. While the Unocal settlement has been an important victory, Katie recognizes that ERI and the human rights community can not rely on a single statute. She has a legal department of three, plus a cadre of legal interns, working to uncover leverage points similar to the ATCA at all levels of government. In the U.S., this has meant detailed work on the applicability of several state level laws. Internationally, the Inter-American Human Rights court, which currently only sees cases against governments, presents another promising avenue. ERI’s legal strategies don’t end with established law. The organization is also working to identify opportunities for creating new laws with similar ends in other developed economies that are home to corporations. In Italy, for example, ERI works with a parliamentarian to introduce a law similar to the ATCA in its powers. ERI is also identifying developing countries where judicial systems are strong enough to support a slow advance in accountability and the strength of rule of law. In Thailand, ERI has advised and guided the small community of human rights lawyers in creating the first citizen organization working at the nexus of legal, environmental, and human rights issues. Katie intentionally traverses the space between the global and the local, establishing unusually strong linkages with the communities that have suffered abuses. This means moving beyond the traditional partnership structure, where an international group links to a local organization and maintains contact through the leadership of that group, and toward a direct relationship with the community members. The benefits of this strategy were evident in the Unocal case, where Katie credits much of her victory to ERIs unique ability to communicate with and collect evidence from local plaintiffs. The EarthRights schools, currently near the Burmese border in Thailand, in the Amazon, and in the Mekong region, foster effective advocacy, legal action, and strong leadership at the local level by bringing together grass-roots leaders in an intensive course. ERI works hard to maintain an alumni network at both schools, thereby building the community of EarthRights leaders, but also keeping ERI informed of abuses likely to serve as the basis for the strongest legal cases in the future. As local relationships are a critical component of the success of these cases—good evidence can not be gathered without trust and access—the ERI schools build inroads to the community base the group will need to bring the corporate accountability cases. Environment and rights groups worldwide are beginning to emulate Katie’s approach. Her success in U.S. courts has now prompted lawyers to begin searching for state and federal laws with the power to charge corporations with abuse overseas. And from California to New York, they are finding them. A similar search is underway in the U.K., while in Italy progressive legislators are working to introduce new laws to have the same effect.
Katie’s introduction to the corporate world came early. An ambitious businessman, Katie’s father became embroiled in the ugly world of corporate politics before dying suddenly when she was only 13 years old. This trauma led Katie to reflect on the power of corporations to do harm in the world. Years later, John Steinbeck’s The Grapes of Wrath gave form to these feelings. As an adolescent, Katie found a framework for understanding her reflections on corporate power in Steinbeck’s description of a 1930s era bank—at once a group of well-meaning individuals and an independent entity dependent on profits. Katie began to take an active interest in the role she could play in improving the world. In high school and college, she pushed the boundaries of the activist community around her. A self-described bleeding heart during that period, she now chuckles at the memory of those years spent exploring the myriad injustices around her and organizing student movements to combat them. Just after college the seed of another important childhood influence came to fruition. Over the years, a high-school English teacher and mentor who had once spent several years as a volunteer in Kenya encouraged Katie to explore the world beyond America. But just as Katie packed her bags to follow in his footsteps, a coup in Kenya redirected her to a teaching position near the Burmese border in Thailand. During her 2 years in Thailand and particularly a summer spent at a Burmese refugee camp, Katie empathized with the suffering of Burma’s refugee community. When villagers heard that, upon her return, she would fulfill a lifelong dream to attend law school, they begged her with words she has not forgotten a decade later: “use your freedom to help us get ours.” Katie returned to Thailand with Human Rights Watch the following summer to investigate human rights abuses associated with logging in Burma. But Burmese human rights activists (including her future husband) and villagers alike were not interested in talking about logging. Instead they pointed Katie toward the newly inaugurated pipeline being built with conscripted labor mobilized by the Burmese army. Katie’s investigation yielded a link to U.S.-based Unocal; she felt certain that American law could provide accountability for these actions. Her final year in law school, through an independent study, Katie prepared a paper explaining how the Alien Tort claims, written by the founding fathers to protect ships from piracy on the high seas, could be used to hold Unocal responsible for abuses perpetrated through the Burmese army. Her professor disagreed with the argument and the aim, but not everyone was so skeptical—Echoing Green gave her $30,000 which she used to develop the case and, in 1994, to file Doe vs. Unocal in California. Over 10 years later, in 2005, after countless motions to throw out the case, Unocal settled in an unprecedented victory for the human rights community. The affected community along the pipeline in Burma received a sizeable sum of money in the form of a development fund. The Unocal victory turned Katie and EarthRights into a reference for innovation in the field—a role model to some, a thorn in the side of others. But Katie knows that litigation is neither the best solution nor her personal passion. The point, she says, is to have a deterrent effect, so that companies find it in their own best interests to monitor their practices and eschew human rights abuse.