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7

T R A N S N A T I O N A L L E G A L C O N F L I C T

B E T W E E N P E A S A N T S A N D C O R P O R A T I O N S

I N B U R M A : H U M A N R I G H T S A N D D I S C U R S I V E

A M B I V A L E N C E U N D E R T H E U S A L I E N T O R T

C L A I M S A C T

John G. Dale*

I N T R O D U C T I O N

In the 1990s, Unocal Oil Corporation made a deal with the author-itarian government of Myanmar (Burma)1 to build the Yadana Project,

* This chapter is based in part on field research that I conducted in Burma and Thailand in 1997 and1998. But I am deeply indebted to many people who volunteered their time and effort, shared theirfood and homes, and in some cases risked their lives, to assist me in collecting data for this project.To many I have promised confidentiality. To the other generous and courageous individuals andorganizations I offer my kadawt – especially Zaw Min (All Burma Students’ Democratic Front); KoKyaw Kyaw (and other members of the National League for Democracy); Teddy Buri and AungMyo Min (National Coalition Government of the Union of Burma); Ah Moe Zoe, Zaw Zaw Htun,and Min Min Oo (Democratic Party for a New Society); U Ba Kyi; Bo Thakhin Sa; Lu Maw; SawCit Oo; Dr Guy Morineau (Medecins du Monde); John C. Bradshaw (US Embassy in Myanmar);Max Ediger and Chris Kennel (Burma Issues); Faith Doherty (Southeast Asian InformationNetwork); Debbie Stothard (Alternative ASEAN Network on Burma); Lyndal Barry, SitthipongKalayanee, and Htet Khai (Images Asia); Jackie Pollock (Empower and the Migration AssistanceProgram); Veronika Martin (Women’s Education for Advancement and Empowerment); PeterHalford, Pippa, and James (Burmese Relief Centre); Justin Sherman (International RescueCommittee); Sally Thompson (Burmese Border Consortium); Kevin Heppner (Karen HumanRights Group); Annette Kunigagon; and many brave friends in Hsipaw, Shan State. Outside ofBurma and Thailand, more individuals and organizations than I have space to list also provided mewith critical assistance. However, I must thank Burma Centre Nederlands for allowing me liberalaccess to their archives in Amsterdam, the Netherlands. In the United States, I am grateful toSimon Billenness and Robert Benson for providing me with substantial insight into their work ontransnational legal campaigns that have contributed to the Free Burma Movement. I also wish tothank Fred Block, Jack Goldstone, and Michael Peter Smith for their insightful comments on earlierversions of this work, and their intellectual support throughout the progress of this research. Fortheir additional comments, I would also like to extend thanks to Andy Nathan and my otherco-participants in the Seminar on Human Rights in an Age of Globalization, supported by theNational Endowment for the Humanities, and hosted by Columbia University during the Summerof 2005.

1In 1988, under Ne Win’s dictatorship, the military reconsolidated power when it violentlyrepressed a domestic pro-democracy movement that was deploying ‘‘people power’’ tactics in aneffort to end the military’s rule. In the wake of international condemnation for its action, the

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a natural gas pipeline. As part of that deal, the military junta that runsMyanmar forced local villagers to work for Unocal under some of themost deplorable conditions imaginable. The junta forced the peasantsfrom their homes and made them work literally at gunpoint. Soldiersfrom Myanmar’s army raped, tortured and, in some cases, murdered theforced laborers. Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997).They also used the workers as human shields and munitions portersagainst other peasants, often from their own villages, who the govern-ment had branded as rebels. The peasants working for Unocal on theYadana Project were slaves – joining the ranks of the 27 million otherpeople held as slaves in the world today (Bales 1999: 8–9).

Peasants such as those forced to work on the Yadana Project havelittle power within Burma. In 1988, they participated in a statewidepro-democracy movement that the military junta brutally crushed.The crackdown in Burma was bloodier than the one the followingyear in Tiananmen Square in Beijing, China. However, it recei-ved little international attention because it was not televised. Bestestimates suggest that the death toll ranged from 3,000 to 5,000citizens.

Burma’s pro-democracy movement emerged initially within anational scope of action. The movement’s participants targeted thepractices of the Myanmar military which, under an isolationist eco-nomic policy called the ‘‘Burmese way to Socialism,’’ had come toincreasingly dominate the state and economic activity within its terri-tory since General Ne Win’s coup d’état in 1962.

2 However, statewideprotest by hundreds of thousands of citizens, living in both urbancenters and rural villages, did not secure a democratic future forBurma. The Myanmar military not only violently and indiscriminatelyrepressed public protest, but also heavily restricted non-military accessto communications and transportation infrastructure, and vigilantlycensored all civilian information flows (Lintner 1990; Mya Maung1992; Schock 1999; Martin Smith 1991).

Burmese military’s ruling party, the State Law and Order Restoration Council (S L O R C ),initiated a series of measures intended to sublimate any collective memory of the illegitimatemeans by which it had secured its political domination over the state. One of the first measuresthat S L O R C took was to rename the country that it ruled – from Burma to ‘‘Myanmar.’’ I willuse Myanmar to refer to the post-1990 military government; yet, to resist playing too easily intothe questionable intentions of this regime’s project of collective forgetting, I retain the name‘‘Burma’’ to refer to the country, and ‘‘Burmese’’ to refer to the state’s citizens.

2Forty years later, in December 2002, and well into his nineties, Ne Win died of natural causes.After formally relinquishing his political office in 1988, he became progressively reclusive anddevoted to Buddhist meditation. He continued to reside in Burma until his death.

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Popular democratic aspirations were temporarily revived in 1990,when the military agreed to hold ‘‘free and fair’’ elections. The mainopposition party, the National League for Democracy (NLD), won over60 percent of the popular vote and 82 percent of the parliamentary seatsunder the leadership of Aung San Suu Kyi, daughter of the country’sfirst post-colonial national hero General Aung San, who was assassi-nated by his domestic political rivals in 1948. But once again, demo-cratic reform was forestalled as the military refused to honor theelection results and tightened its authoritarian grip. It outlawed oppo-sition parties and systematically imprisoned or ‘‘disappeared’’

3 membersof the NLD (Fink 2001: chs. 3, 4 and 8). This time, however, injusticefound no expression in mass protest. Instead, the movement slippedtemporarily into abeyance (V. Taylor 1989; Meyer 1999). The studentsand Buddhist monks, who had primarily led the movement, subse-quently joined with peasants in ethnic minority villages in rural areasnear the Thai-Burma border.

What makes this case so sociologically interesting is that some vic-tims of Myanmar’s violent policies then did something non-traditional.The slaves forced to work on the Yadana Project, with the help ofactivist lawyers in the United States, and working within a morecomprehensive transnational ‘‘Free Burma’’ movement, created a trans-national legal space within which to address their grievances. It is on theconstruction of this transnational legal space, and its implications forthe practice of human rights, that I focus in this chapter.

3 The term ‘‘disappeared,’’ refers to the human rights violation and crime of enforced or involun-tary disappearance, and is widely interpreted by civilians in Burma to be a euphemism used bythe military to suggest that the arrested person has been executed by the military. Use of theterm, however, allows the military to simultaneously signal a threat to any civilians who mayclandestinely participate in or affiliate with oppositional political parties, and avoid acceptinglegal responsibility or providing official justifications for executing civilians challenging themilitary’s rule (Human Rights Documentation Unit 1996: 91–125; Amnesty International2004, 2006). According to Laifungbam Debabrata Roy (2002): ‘‘Modern history has creditedAdolf Hitler for [the] invention [of the practice] in his Nacht und Nebel Erlass (Night and FogDecree) of December 7, 1941. The purpose of this decree was to seize persons in occupiedterritories suspected of ‘endangering German security’ who were not immediately executed, totransport them secretly to Germany, where they disappeared without trace. In order to achievethe desired intimidating effect, it was prohibited to provide any information as to their where-abouts or fate. The phenomenon reappeared as a systematic policy of state repression in the late1960s and early 1970s in Latin America, starting first in Guatemala and Brazil. The term‘enforced disappearance’ was first used by Latin American NGOs and is a translation of theSpanish expression ‘desaparición forzada.’ The UN Commission was the first internationalhuman rights body to respond both in general terms and also in specific cases which hadoccurred in Chile since the military coup d’état on September 11, 1973.’’

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I examine how movement activists have used this space to shape animportant legal mechanism, the Alien Tort Claims Act, for reigning inthe power of transnational corporations that violate human rights. Ialso examine how this space has generated discursive ambivalenceamong a wide range of social actors, particularly corporate and stateagents, who have voiced support for human rights within this space. Iargue that the discursive ambivalence of corporate and state agentsresults from their combining human rights discourse with other dis-courses that are meant both to protect corporations from being heldaccountable for their abusive human rights practices, as well as tominimize the state’s vulnerability to international legal standards.

To better understand the complex discursive practice of humanrights that I discuss below, it is helpful to distinguish between twobroad discourses that anthropologists often conflate: the globalizationdiscourse and the transnationalist discourse. The globalization dis-course, writes Michael Peter Smith, ‘‘. . . draws attention to socialprocesses that are largely de-centered from specific national territo-ries . . . and often explicitly assumes the growing insignificance ofnational borders, boundaries, and identities’’ (2001: 3). Smith pointsout that this discourse is grounded in the assumption that globalizationand the nation-state are ‘‘mutually exclusive and antagonisticallyrelated conceptual categories’’ (2001: 3).

In contrast to the globalization discourse, Smith distinguishesthe ‘‘transnationalist discourse.’’ The transnationalist discourse, heexplains, not only challenges the binary distinction between global-ization and the nation-state but, furthermore, ‘‘insists on the continu-ing significance of borders, state policies, and national identities evenas these are often transgressed by transnational communication circuitsand social practices’’ (2001: 3). According to Smith’s distinction, thetransnationalist discourse emphasizes transnational practices ratherthan global processes. Moreover, this discourse does not treat thenation-state and transnational practices as mutually exclusive socialphenomena nor even as binary conceptual categories. Instead, thetransnationalist discourse depicts nation-states and transnational prac-tices as contributing to the constitution of each other. It sees nation-states as not only being transformed by transnational practices, but asoften participating in and even promoting these very practices that aretransforming nation-states.

State actors, as well as their targets and challengers, may deploy bothkinds of discourse, even combining aspects of each, when representing

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their own power and choices to act in various contexts. It matters howactors (including collective actors, both state and non-state) representtheir power, choices, and even interests, because, as Alison Bryskwrites, they are ‘‘increasingly constituted from the meanings assignedto them by interacting subjects’’ (2000: 43). Furthermore, the newsocial subjectivities that are produced through practices connect-ing social networks in more than one national territory are not neces-sarily transgressive agents of change. As Smith asserts, ‘‘[T]ransnationalpolitical, economic, and sociocultural practices are embodied in histori-cally specific, culturally constituted, social relations, i.e., they are net-works of meaning, established between particular spatially andtemporally situated social actors’’ (2001: 167). Attention to the mean-ings and intentions of transnational practices (including discursivepractices) helps us to usefully distinguish between different typesof transnational networks, some of which have allied with Burma’smilitary state, and others which have challenged those alliances.Cumulatively, these transnationalist discursive challenges have trans-formed the context of the pro-democracy movement’s struggle in a waythat has created new opportunities for meaningful collective actionboth within and beyond Burma’s territorial boundaries.

F R O M N A T I O N – C E N T E R E D T O T R A N S N A T I O N A L

M O V E M E N T

In order to appreciate how this transnational legal space was created,we must begin by understanding how this court case was embeddedwithin a broader transnational movement. After 1990, the activistscame to understand that their ‘‘people power’’ movement tactics hadfailed. More and more pro-democracy activists were forced into exile.Signs of organized, large-scale, non-violent, public protest reappearedbriefly in the 1996 student demonstrations, and the 1998 tenth-yearanniversary of the ‘‘8-8-88’’ uprising,

4 and again in the symbolic ‘‘9-9-99’’ demonstration in 1999 (Dale 2003: ch. 3).5 Yet, the military quickly

4 Burmese activists commonly refer to the commencement of the statewide general strike thatlaunched the pro-democracy movement as Shitlay Loan A-Yay A-Hkin, or the ‘‘Four EightsAffair (8-8-88)’’ because it began at precisely 8:08 a.m. on August 8, 1988.

5Although Burma’s dictator General Ne Win was over ninety years old in 1999, the wealthiestperson in Burma, and rarely appeared in public anymore, many believed that he was still themost powerful person in the country, and still influenced the military’s top cadre of generals andstate officials. Ne Win was said to be obsessed with astrology and numerology to the extent that

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and easily repressed all of this collective action without significantcasualties. Although the claim to legitimate state representation inBurma remains contested (Yawnghwe 1995; R. H. Taylor 1998), themilitary has remained in power to this day.

However, from 1990 through 1994, several factors combined to alterthe conditions challenging the pro-democracy movement: (1) theMyanmar state’s refusal to acknowledge the victory of the country’spowerful opposition party in the 1990 elections; (2) the state’s suddenadoption of an economic liberalization policy; (3) the rapid consolida-tion of neo-liberal ‘‘free trade’’ as a hegemonic discourse on global-ization as the Cold War was ending; and (4) a massive influx of foreigninvestment by transnational corporations seeking to build a natural gaspipeline through Burma. During this period, the pro-democracy move-ment’s leaders came to realize that the Myanmar state was not theonly obstacle to domestic political change. The investments of trans-national corporations and foreign states in Burma also buttressed theMyanmar state’s power to repress the movement. In response, the pro-democracy movement began to organize transnational campaigns withother movements. Those movements were less centered on theMyanmar state, and instead centered on foreign democratic statesand transnational corporations chartered within them that sought toprofit from Burma’s opening market.

many major tactical decisions at the national level are based on consultations with horoscopesand obscure number charts. It was popularly understood that Ne Win revered the number ‘‘9’’ asthe most auspicious of all numerals. ‘‘Ko nawin kane,’’ a phrase which means ‘‘the astrologicalcalculation of the number ‘9’,’’ is invoked playfully in teashop conversation as a pun [nawin/NeWin], playing on Ne Win’s name. For example, when the military retook control of the state onSeptember 18, 1988, it is widely believed that the date was deliberately chosen on the basis of konawin kane. September is the ninth month of the year. The number 18 is divisible by 9 and,moreover, the first digit (1) and the second digit (8), when added together, equal 9.Underground pro-democracy activists in Burma creatively manipulated the Burmese com-moner’s attentiveness to Ne Win’s obsession with numerology, particularly the number 9, inits deployment of symbolic politics to mobilize the ‘‘9-9-99 uprising,’’ which it launched onSeptember 9, 1999. In contrast to the mass direct action of the Four Eights Affair eleven yearsprior, the activists deployed new forms of collective action, including ‘‘cat and mouse’’ guerillatactics, symbolic protests, and dozens of transnationally coordinated demonstrations withactivists in countries around the world, that were designed to get the Myanmar state to ‘‘jumpat shadows’’ and demonstrate to an international audience the military’s willingness to userepressive measures that could be easily exploited by activists in transnational media campaigns.The intention was not to mobilize citizens to take to the streets. Rather, it was to create theimpression in the minds of state authorities that such a conventional uprising might take place.The state predictably responded by ordering soldiers to occupy the streets to intimidate citizensinto remaining in their homes, and by indiscriminately arresting hundreds of citizens who werenot even engaged in protest. The timing of the protest coincided with Myanmar’s recentinduction to the Association of Southeast Nations (ASEAN), whose member states justifiedMyanmar’s inclusion based on the argument that they could constructively engage and steer thejunta toward more democratic rule.

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Foreign states have been reticent to publicly ally themselves closelywith the Myanmar state since 1988. Nevertheless, many of them, includ-ing the United States, have helped to sustain it. The Myanmar military’sresponse to the revolutionary crisis that it faced in 1988 quickly becamethe target of two different globalization discourses deployed by foreignactors. One of these globalization discourses promoted ‘‘free trade,’’ andthe other proclaimed support for ‘‘human rights.’’ The resulting dis-cursive contention yielded two polarized international foreign policypositions: (1) ‘‘constructive engagement,’’ which prescribes internationaleconomic trade and development as the surest route to political stabilityand democratization; and (2) multilateral ‘‘economic sanctions’’ imple-mented through the coordinated action of individual nation-statesagainst rogue-state challengers to the international community’s newglobal order.

The transnational networks of actors supporting each of these for-eign policies all proclaimed their support for human rights, whilesimultaneously jockeying for favorable economic partnerships andtrade relations with the Myanmar military ruling the state. Moreover,these foreign policy discourses were mediated by a cultural structure ofneo-liberalism that channeled state power toward positions of discur-sive stalemate, and toward practices that sustained the structures ofmilitary repression in Burma. That is, although these two foreignpolicies have become polarized as competing discourses at the interna-tional level, taken together they effectively channel discursive con-tention within a framework of conceptual distinctions that re-inscribesthe hegemonic power of the globalization discourse. In practice, how-ever, neither of these international foreign policies curbed, nor werethey intended to curb, transnational oil and gas corporations fromseeking highly profitable new investment and development opportu-nities in Burma. For these corporations, Burma represented a cruciallink to future natural gas markets in Southeast Asia and, most impor-tantly, China (Dale 2003: chs. 4 and 6).

Although the Burmese pro-democracy movement has not mounted asignificant internal challenge to the Myanmar state since 1988, a gooddeal of pro-democracy movement activity has been taking place outsideof Burma. By 1994, the Burmese pro-democracy activists-in-exile hadforged alternative transnational networks that strategically chose totarget the new transnational trade relations being forged by the militarystate. Instead of focusing their protest efforts on the military state ofBurma, they expanded the scope of their collective action to target the

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foreign states, transnational corporations, and international tradeorganizations that were conducting business (and, in some cases, alleg-edly colluding in abusive human rights practices) with the Myanmarstate. In my broader study of the Free Burma Movement (Dale 2003), Iidentify several transnationalist ‘‘Free Burma’’ discourses generated bythese alternative transnational networks that have intentionally chal-lenged both the neo-liberal dimensions of the discourse on constructiveengagement and the nationalist dimensions of US federal discourse oneconomic sanctions that had become institutionalized in foreign policytoward Burma.

Under the banner of the ‘‘Free Burma’’ movement, and linkinggrassroots movements in both the East and West, the Burmese pro-democracy activists-in-exile have helped organize transnational legalcampaigns waged in alliance with local state and municipal govern-ments in the United States and Australia, as well as non-state actors,including regional governing bodies like the European Union, non-governmental organizations (NGOs) throughout East and SoutheastAsia, international nongovernmental organizations (INGOs), and vol-untary associations on every continent and in over twenty-six countries(Dale 2003: 5). The movement has also attracted pre-existing trans-national advocacy networks that defend issues like human rights,women’s rights, the degradation of the natural environment, laborrights, indigenous people’s rights, and socially responsible corporateinvestment, and has even created new principled-issue networks, likethose now forming around the international ‘‘right to know’’ (about thelabor conditions and environmental impact of proposed developmentprojects that are financed through transnational corporations in partner-ship with the state) (Dale 2003: 113).

It is also at this time that the Free Burma movement began todevelop and voice a transnationalist discourse on human rights andtheir protection against the abusive practices of corporations partner-ing with the Myanmar state. It is a discourse reflecting several trans-national strategies deployed by the Free Burma movement that movebeyond holding accountable the Myanmar state for its human rightsabuses, economic mismanagement, and political illegitimacy.

6 It arti-culates an alternative understanding of the relationship between

6Dale (2003) describes several of the transnational legal campaigns that the Free Burma move-ment activists organized, including a selective purchasing campaign comprised of over thirtycities in the United States and the State of Massachusetts, all of which adopted ‘‘Free Burmalaws that forced corporations to choose between doing business with the Myanmar junta or with

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political processes in Burma and global market dynamics, and depicts avariety of ways in which actors outside of Burma have helped to sustainthe Myanmar state’s repression of democratic change.

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In 1996, a dozen ethnic-minority peasants from Burma sued the UnocalCorporation in a US court in a case titled Doe v. Unocal. Doe v. UnocalCorp., 963 F Supp 880 (C.D. Cal. 1997); 27 F Supp 2d 1174 (C.D. Cal.1998); 67 F Supp 2d 1140 (C.D. 1999); 110 F Supp 2d 1294 (C.D. Cal.2000); and 403 F 3d 708 (9th Cir. 2002). They alleged that Unocal hadbeen complicit in human rights abuses against them and demandedthat Unocal stop the human rights abuses and pay money damages. Foreight years, this case wound its way through the courts. Then, suddenly,in December 2004, Unocal announced that it had reached a settlementwith the plaintiffs (Lifsher 2005; EarthRights International 2005a).This was clearly a victory for the peasants.

What makes this transnational legal action significant is that, hadthe court been left to decide the case, and had it ruled in favor of thepeasants (an outcome that Unocal clearly thought likely), it wouldhave been the first time that foreigners had won a case against atransnational corporation in a US court for an injury that took placein another country. The peasants filed the suit under the United StatesAlien Tort Claims Act, 28 USC x1350. Since Doe v. Unocal, over adozen similar suits have been filed against other corporations on themodel of the transnational legal strategy used in the Unocal case.

The judicial struggle of the Doe v. Unocal case, in itself, representsa stunning achievement for the Free Burma Movement. This long shotof a transnational legal strategy soon became a landmark suit. The pub-licity from the suit brought stories of Burma’s struggle for democracyinto living rooms across the United States. But the negative publicitythat this case generated is not ultimately what threatens Unocal’scorporate conduct. Rather, this case threatens Unocal’s ‘‘bottom line’’of profitability by forcing it to build into its calculus the costs oflitigation and liability for violating the human rights of foreign nation-als in foreign countries in which it does business. It also sends a clearmessage to other corporations: if the activists win, corporations must

these US municipal and regional-state governments. The National Foreign Trade Councilultimately sued the State of Massachusetts in a case that went to the US Supreme Court,which forced Massachusetts to later rescind this legislation.

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consider these costs in deciding whether to partner with rogue states.This could provide an important tool for weakening the authoritariangrip of Burma’s ruling junta and others like it which depend uponforeign corporate investment. Most importantly, this campaign createdwhat I call a ‘‘transnational legal space.’’

What I mean by transnational legal space are the discourses con-structed at the interstices of existing state legal systems that identifyinstitutional arrangements or legal mechanisms that present opportu-nities for making crimes or torts committed in one state actionable in thelegal system of another state. Transnational legal space therefore alsoprovides an opportunity for mediating how the emerging rules of globalmarkets are politically, legally, and morally constructed. While thisspace may include international fora, (i.e., contexts that representstates and their agents interacting among themselves), it is especiallymeant to include transnational interactions, (i.e., contexts that repre-sent interactions including at least one non-state actor). For example,by bringing a lawsuit against Unocal Corporation, otherwise powerlessBurmese peasants were able to create a transnational legal space inwhich they could argue for the institutionalization of democratic mar-ket practices such as those that ban slavery.

What is important to grasp here is that the notion of ‘‘transnationallegal space’’ represents a contested terrain of legal discourse. As MarkGoodale argues in the Introduction to this volume, ‘‘discursive appro-aches to human rights assume that social practice is, in part, constitutiveof the idea of human rights itself, rather than simply the testing groundon which the idea of universal human encounters actual ethical or legalsystems’’ (pp. 8–9 above). Transnational legal space is a discursive field.A discursive field is in part bounded by norms. But, the symbolicdimension of any given norm is never completely fixed. We can speakof norms that have varying degrees of durability or stability, but there isno reason to assume that this underlying symbolic dimension of a normis fixed once and for all. As soon as we begin to question why a normexists, or why it should be enforced to address a given social condition,we are entering the world of discourse.

Discourse structures the symbols that give meaning to norms. Sym-bols have no inherent meaning. They are polysemous. It is only whena symbol is brought into relation with another symbol that mean-ing emerges. That is, meaning derives from how we give structureto symbols. Discursive action provides such a structure. Discourse hasthe potential to transform the meaning of a given norm by bringing

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together polysemous symbols in new combinations – in new relation-ships to each other – and altering the original meaning of these symbols.Thus, discursive action can provide new ways of understanding norms,and serve as a vehicle for bringing new interpretive claims regardingnorms into the mix.

Also, Goodale reminds us of a key fact about human rights discourse:‘‘the sites where human rights unfold in practice do matter, and thesesites are not simply nodes in a virtual network, but actual places in socialspace, places which can become law-like and coercive’’ (p. 13 above). Ifwe think of ‘‘place’’ as spaces that have become embedded with mean-ing, and understand that meaning is produced, reproduced, and trans-formed within social relations and through social practices, then we canbegin to understand the importance of transnational legal space andtransnationalist discursive practices for the construction and progres-sive development of human rights norms.

Transnational legal space suggests a site for examining proce-sses through which economic globalization becomes institutionallyembedded in legal, moral, and political relations that are discursivelyconstituted through conflicting and contradictory legislative, judi-cial, and administrative struggles. The focus here is on the discur-sive struggles of a not-yet-institutionalized space of globalization inwhich any existing transnational norms, like the prohibition againstthe use of slave labor, are culturally refracted through competinginterests and experiences. The judicial, administrative, and legislativedimensions of discursive struggle among state and non-state actorsshape the institutional boundaries of the emerging transnationallegal terrain.

This very premise is an interrogation of the globalization discourse:first, because it assumes that states are still critical actors in the con-struction of a regulatory infrastructure for globalization; and, second,it assumes that markets, especially global markets, are always embed-ded to a greater or lesser extent in social relations of governance. Theneo-liberal idea that markets could be ‘‘free’’ of (or completely dis-embedded from) such relations is a utopian impossibility (see Block1990, 2001). In this case, it is the transnational legal action (inclu-ding discursive action) of the Free Burma movement’s participantsand allies who initiate and sustain these struggles through conflictwith their targets and challengers, whose norms of neoliberal eco-nomic ‘‘free trade’’ and ‘‘constructive engagement’’ (among others)they contest.

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The Doe v. Unocal suit, filed under the Alien Tort Claims Act(ATCA), deploys a transnational strategy through which the FreeBurma movement attempts to use the statute for the first time to holdliable in a US court transnational corporations, not just state actors orprivate individuals, for their complicity in human rights abuses com-mitted outside the United States in furthering their transnational jointventures with states like Burma. The original legislators of this statutehad never, nor could have, imagined using it for this purpose. Yet,movement activists, deploying a transnationalist discourse, creativelyappropriated this statute to address relations among states, citizens,corporations, and human rights that had significantly changed overthe two centuries since ATCA’s adoption. This suit illustrates howmovement activists created a transnational legal space to shape themeaning and application of the ATCA for reigning in the power oftransnational corporations that violate human rights.

An appreciation for how the Doe v. Unocal suit brought under theATCA provides an example of a transnational legal space begins withunderstanding the historical development of the Act itself, and howthe peasants and their lawyers reappropriated it in a new way. In 1789,the First Congress of the United States adopted the ATCA. Itremained largely unused for the next two centuries. The text of theAct is short. It reads simply, ‘‘The district courts shall have originaljurisdiction of any civil action by an alien [non-United States citizen]for a tort only, committed in violation of the law of nations or a treaty ofthe United States.’’ 28 USC x1350. The ATCA is not a human rightslaw per se, but it allows for civil suits for violations of the law of nations.The ‘‘law of nations’’ is the law of international relations, embracingnot only nations but also individuals, such as those who invoke theirhuman rights or commit war crimes.

7

The members of the United States’ First Congress were obviouslycognizant of the ‘‘law of nations’’ as they crafted their nascent nation’sConstitution. Yet, they could not have anticipated, in 1789, the extentto which the law of nations would develop over the course of thefollowing two centuries. Nor, for that matter, could they have imagined

7 This is the definition of the law of nations that the Ninth Circuit Court of Appeals used inDoe v. Unocal Corp., 395 F 3d 932, 944 n. 12 (9th Cir. 2002).

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the radical development of two other legal concepts that have signifi-cantly transformed the context within which contemporary actors havebegun to interpret the ATCA: ‘‘human rights’’ and ‘‘the corporate rightsof personhood.’’

The Law of NationsAlthough litigation under the ATCA remained dormant for two cen-turies following its passage, lawyers in the United States appropriatedit during the past two decades to challenge the abuses of foreign state-agents, and even non-state actors, that were committed in foreignstates between non-US citizens. While some have cheered theseATCA cases as a progressive step forward in the development of inter-national norms, others have decried the very same cases as a creep-ing American imperialism which threatens to export the legalstandards of the United States to other nations, raising the questionof whether these ATCA cases represent an erosion of state sover-eignty in sheep’s clothing.

In 1980, lawyers at the Center for Constitutional Rights rediscov-ered ATCA and put it to modern use in the landmark case of Filartigav. Pena-Irala, 630 F 2d 876 (2d Cir. 1980).

8 The decision in that caseinterpreted the ATCA to provide jurisdiction for US courts in caseswhere the perpetrator (even though not a US citizen) is properly servedwithin the United States’ borders, but it left open whether the ATCAapplies only to state actors or also to non-state actors. In addition, thisdecision drew attention, amidst increasing international concern withhuman rights issues, to a new legal tool that human rights advocatesmight find workable in a variety of related cases. As Andrew Ridenourexplains: ‘‘The resulting body of jurisprudence has slowly expandedover the past twenty years to deal with an otherwise open area of law:civil remedies for certain violations of international law’’ (2001: 584).

Subsequent courts in the United States have generally followed theinterpretation set out in Filartiga, holding that the ATCA not onlyprovides jurisdiction, but also authorizes plaintiffs to base their sub-stantive claims on international law norms. In re Estate of FerdinandE. Marcos Human Rights Litig., 25 F 3rd 1467, 1475 (9th Cir. 1994),cert. denied, 513 US 1126 (1995). Courts also have relied on this

8As Ridenour (2001) explains, although plaintiffs had invoked the alien tort statute in numeroussuits prior to 1980, only two suits had been successful under the statute (see Abdul-Rahman OmarAdra v. Clift 1961; Bolchos v. Darrel 1795).

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interpretation to suggest that plaintiffs do not have to base their causesof action on the municipal law of the forum or of the site of the tort.Xuncax v. Gramajo, 886 F Supp 162, 181–183 (D. Mass. 1995).

However, courts have debated whether the statute provides a causeof action against a party that has violated international law. One of themost difficult issues facing the courts has been that of determining whatconstitutes a violation of the law of nations. In Tel-Oren v. Libyan ArabRepublic, the District Court for the District of Columbia reasoned that:

The law of nations never has been perceived to create or define the civilactions to be made available by each member of the community ofnations; by consensus, the states leave that determination to theirrespective municipal laws . . . In consequence, to require internationalaccord on a right to sue, when in fact the law of nations relegatesdecisions on such questions to the states themselves, would be toeffectively nullify the ‘law of nations’ portion of [ATCA].

(Tel Oren v. Libyan Arab Republic, 726 F 2d at 778 [D.C. Cir. 1984])

That is, the law of nations itself does not provide rights of action, thusCongress must have intended for ATCA to grant a cause of action to aforeign national to remedy a violation of the law of nations by anotherparty. Yet, as the district court pointed out, this raises a further issue:how are the courts to derive from an amorphous entity (i.e., the ‘‘law ofnations’’) standards of liability that are applicable in concrete situa-tions? The Tel-Oren court proposed an alternative approach to that ofthe Filartiga court. While ATCA can provide federal court jurisdictionto aliens alleging torts framed as a violation of the law of nations, thesubstantive right on which this action is based must be found in thedomestic tort law of the United States.

In 1991, the US Congress passed the Torture Victim Protection Act(TVPA) with the intention of augmenting the Filartiga approach andextending it to citizens of the United States.9 The TVPA states that:

An individual who, under actual or apparent authority, or color of law,of any foreign nation, subjects an individual to torture shall, in a civil

9The House of Representatives stated: ‘‘The TVPA would establish an unambiguous and modernbasis for a cause of action that has been successfully maintained under an existing law, section1350 of the Judiciary Act of 1789 [the Alien Tort Claims Act], which permits Federal districtcourts to hear claims by aliens for torts committed ‘in violation of the law of nations’ . . . JudgeBork questioned the existence of a private right of action under the Alien Tort Claims Act,reasoning that separation of powers principles required an explicit – and preferably contempo-rary – grant by Congress of a private right of action before U.S. courts could consider cases likelyto impact on U.S. foreign relations . . . The TVPA would provide such a grant . . .’’ (US HouseJudiciary, Committee 1991: 3–4.)

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action, be liable for damages to that individual; or subjects an individualto extra judicial killing shall, in a civil action, be liable for damages tothe individual’s legal representative, or to any person who may be aclaimant in an action for wrongful death.

(Torture Victim Protection Act of 1991, 28 USC x 1350 et seq.,affirmed by 470 US 1003 (1985))

Since Congress passed this statute, courts have held, that regardless ofthe original intent that Congress may have had in adopting ATCA, theTVPA demonstrates a contemporary legislative intent that ATCAdoes create a private cause of action for violations of internationallaw. See, e.g., Xuncax v. Gramajo, 886 F Supp 162, 179 (D. Mass. 1995).In other words, the TVPA gave new meaning to the law of nations,permitting non-state actors to be sued under ATCA for violations ofinternational law, provided that the tort represents the violation of anorm that is universal, specific, and obligatory.

In 1995, the Court of Appeals for the Second Circuit Court drewupon Congress’ explicit intention in passing the TVPA to hold thatcertain forms of conduct violate the law of nations whether undertakenby those acting under the auspices of a state or only as private indi-viduals. Kadic v. Karadzic, 70 F 3d 232, 241 (2d Cir. 1995). This inturn opened ATCA to being used to sue private individuals – not juststates and their agents – who violate the law of nations. Even ‘‘private’’individuals, that is, individuals who are not acting as agents of the stateper se, but those who are found to be acting in cooperation withgovernment officials or significant government aid when they allegedlycommitted a violation of the law of nations, were also within US courtjurisdiction under the ATCA (Walker 1997).

10

Thus, it is the intersection of ATCA, which is almost as old as theRepublic, with recent developments in the domestic appropriation ofinternational law that created the legal opportunity, or critical

10 In this case filed against Radnovan Karadzic following civil war in former Yugoslavia, the courtprovided a reasoned analysis of the scope of the private individual’s liability for violations ofinternational law. The Second Circuit court disagreed with the proposition ‘‘that the law ofnations, as understood in the modern era, confines its reach to state action. Instead, [the courtheld] that certain forms of conduct violate the law of nations whether undertaken by thoseacting under the auspices of a state or only as private individuals.’’ Kadic v. Karadzic, 70 F 3d at239 (1995). While international law proscribes crimes such as torture and summary executiononly when committed by state officials or under their legal authority, the law of nations hashistorically been applied to private actors for the crimes of piracy and slavery, and for certainwar crimes. Kadic v. Karadzic, 70 F 3d at 243 n. 4 (1995). Thus, individual liability may applywhen torture or summary execution are perpetrated as a war crime. Kadic v. Karadzic, 70 F 3d at239 (1995).

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discursive space, for suing the Unocal Corporation. The activist attor-neys representing the Doe plaintiffs pushed the argument further. Asindividual private actors, corporations too, they asserted, are capable ofviolating and being held liable for a new class of international normswhich had emerged officially in only the past two decades: jus cogensnorms.

The human rights regime and corporate personhoodAn important factor that has influenced the changing relationshipbetween state sovereignty and the law of nations is the developmentof the international human rights regime. As Sarah Cleveland hascogently argued, this regime has been

enunciated through a loose network of general treaties promulgated bythe United Nations; rights-specific regimes which are promoted byintergovernmental entities and international organizations [e.g., theInternational Labor Organization]; regional regimes of conventionsand oversight; and universal customary prohibitions that have evolvedthrough treaties, the practices of states, and the efforts of nongovern-mental and private actors.

(Cleveland 2001: 20)

Emerging from these efforts has been an unevenly developed globalsystem of normative rules relating to human rights. Not all humanrights are equal before the law. Comprising this global system of rulesare two tiers of human rights: (1) jus cogens norms and (2) treaty rightsand customary obligations erga omnes (Cleveland 2001). This hasimplications for those filing suits under the ATCA.

Treaty rights, of course, are detailed in the formal instrument of thehuman rights regime. These international treaty obligations cover awide range of protections for human rights by creating binding obliga-tions between party states. A state which accedes to these conventionsbecomes obligated to every other state to uphold the promises of thetreaty and ‘‘submit[s] its performance to scrutiny and to appropriate,peaceful action by other parties . . .’’ (Henkin 1981: 1, 15). It should benoted that Myanmar is a member of both the United Nations and theInternational Labor Organization (ILO).

11

11The ILO, which is the international body responsible for defining and implementing interna-tional labor norms, has played a significant role in helping certain labor rights, including theprohibition against slavery and forced labor, to attain broad recognition among states asfundamental human rights. Its eight conventions explicitly setting forth ‘‘fundamental

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Beyond those human rights formally expressed in these treaties, thelaw of nations recognizes certain rights to be universally accepted andbinding on all sovereign states as either jus cogens or erga omnes prin-ciples of customary international law. Jus cogens norms (literally mean-ing ‘‘the highest law’’) hold the highest hierarchical position among allother norms and principles (Bassiouni 1996: 67). In 1969, the ViennaConvention on the Law of Treaties first defined jus cogens norms asprinciples ‘‘accepted and recognized by the international community ofStates as a whole as a norm from which no derogation is permitted andwhich can be modified only by a subsequent norm of general internationallaw having the same character’’ (Vienna Convention of the Law onTreaties, 1155 UNTS 331, 344, Art. 53). They represent the higher ofthe two tiers of human rights to which I alluded above. As a conse-quence of this standing within the law of nations, nearly all courts aroundthe world (including US courts) deem jus cogens norms to be ‘‘peremp-tory’’ and ‘‘non-derogable.’’ In other words, jus cogens norms are norms ofinternational law that are binding on nations even if they do not agreewith them. Any international agreement that would violate them wouldbe void (Vienna Convention of the Law on Treaties, 1155 UNTS 331,347, Art. 64). Any jus cogens violation, therefore, is also, by definition, aviolation of the law of nations. The legal literature discloses that thefollowing are broadly recognized rights that no state officially claims theright to violate and may be considered jus cogens principles of the humanrights system: aggression, genocide, crimes against humanity, war crimes,torture, piracy, and slavery and slavery-related practices.

12

Human rights obligations that enjoy the status of erga omnes normsshare with jus cogens norms their universal character and are binding onall states. However, unlike jus cogens norms, erga omnes norms are notperemptory norms which prevail over all other rules of customary law.

human rights’’ have been almost universally embraced, with the notable exception of theUnited States. The United States has, however, ratified the ILO’s Convention No. 105regarding the abolition of forced labor. In 1998, the ILO made further progress towarduniversalizing these norms by adopting its Declaration on Fundamental Principles and Rightsat Work, which binds all ILO members to the core labor principles, regardless of whether themember has ratified the relevant conventions. Commitment to these core ILO principles is acondition of ILO membership. Moreover, the basic, non-specific, labor rights have beenincorporated into foundational international human rights instruments, all of which havereceived nearly universal acceptance.

12 Although identifying the international human rights principles that constitute jus cogens canbe controversial, the Restatement (Third) of the Foreign Relations Law of the United States x702 (1987) recognizes the following jus cogens norms: genocide; slavery or slave trade; summaryexecution or causing the disappearance of individuals; torture or other cruel, inhuman, ordegrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimi-nation; and a consistent pattern or gross violations of internationally recognized human rights.

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Thus, we can think of treaty rights and erga omnes norms together ascomprising the lower of the two tiers of human rights.

In the summer of 2004, the US Supreme Court held in the case ofSosa v. Alvarez-Machain that only a human rights violation of the high-est and most agreed upon magnitude qualifies for consideration underATCA. In other words, only ATCA claims based on violations of juscogens norms qualify (Sosa v. Alvarez-Machain, 542 US 692 (2004)).This institutionalization of jus cogens presupposes that some laws areinherent and inalienable, reflecting the notion that there are ultima-tely fundamental moral choices, and thus that there are non-economicboundaries which market participants should not be permitted to trans-gress; for example, that slavery is immoral. This case illustrates howtransnational legal space mediates the process through which globalmarkets become embedded in morality. This case also highlights dis-cursive contention around a statute that confers jurisdiction in a USfederal court, but which does not create a substantive right. Yet, theambiguity of this statute is powerful when combined with jus cogens.

The US Supreme Court ruled that ATCA can be used for jus cogensviolations. But the question raised in Doe v. Unocal was whether a partycould sue a corporation for these jus cogens violations. Over the courseof the nineteenth and twentieth centuries, US courts have increasinglygranted corporations the rights of personhood, allowing them to betreated legally as private individual persons, separately from the indi-viduals who own or operate them, and providing them with the samerights to due process under the law enjoyed by human persons (Benson1999; Lamoreaux 2000). The plaintiffs in Doe v. Unocal essentiallyargued that with the rights of personhood also come responsibilities.Thus, they argued, corporate violations should be held liable under theATCA for jus cogens violations in the same way that individuals are.The district court ruled that the plaintiffs in Doe v. Unocal have alegitimate cause of action, and agreed to hear the case. However, whatremained at issue was whether Unocal should be held liable for the juscogens violations suffered by the peasants. But Unocal settled the suitbefore this question was ever decided by the courts, and it remains tothis day a central question for ATCA claims against corporations.

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This transnational legal space has been significantly shaped by a trans-nationalist discourse on human rights. But the struggle to give this

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space meaning has also generated discursive ambivalence among someof the very actors who have voiced support for human rights within thisspace. In particular, corporations and states have diluted human rightsdiscourse by combining it with others meant to protect corpora-tions from being held accountable for their abusive human rights prac-tices, and to minimize the state’s vulnerability to international legalstandards.

The discursive ambivalence created by corporationsCorporations have deliberately created discursive ambivalence on twofronts: first, by resisting attempts to subject corporations in general toan enforceable legal framework; and second, by actively consolidating aself-regulatory regime of ‘‘corporate social responsibility’’ that is basedon a host of voluntary and non-enforceable instruments.

For example, in its effort to have Doe v. Unocal dismissed, Unocaldeployed two main discourses, one relating to corporations’ liability forhuman rights abuses, and the other relating to the United States’present foreign policy toward Burma. Unocal consistently proclaimedits support for human rights. At issue, they argued, was whether theyshould be held liable for the abusive human rights practices of theMyanmar junta. First, Unocal argued that it had a civil right to freelycontract,

13 and that holding it ‘‘vicariously liable’’ for the actions of itsstate partners would interfere with that right. Unocal fought for the useof a weaker domestic standard of liability (based on direct and activeparticipation), rather than the more stringent standard (based on aid-ing and abetting abusive human rights practices) that is used in inter-national law.

Second, Unocal asserted that it could both profit from doing busi-ness with a repressive regime, and promote human rights. Moreover,Unocal has maintained that only continued trade and investment inBurma will restore democracy. However, this case presents a diffi-cult challenge to the general proposition asserted by ‘‘free trade’’

13The District Court stated that the ‘‘plaintiffs’ allegations of Unocal’s complicity in forced labordo not meet the standard of liability used in U.S. civil proceedings.’’ That is, the plaintiffs couldnot show that Unocal ‘‘actively participated’’ in the forced labor. In effect, the District Courtruled that, because Unocal did not ‘‘actively and directly participate’’ in the alleged torts, theycould not be held liable for those torts under the ATCA. Unocal subsequently asserted on itswebsite that this ruling confirmed that they were not ‘‘vicariously liable’’ for the military’s torts.On appeal, the attorneys and amici curiae for the Doe plaintiffs successfully argued that the lowercourt had failed to properly use the international standard of ‘‘aiding and abetting’’ the allegedtort in testing Unocal’s liability. Doe v. Unocal Corp., 395 F 3d 932 (9th Cir. 2002).

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economists – that is, the proposition that trade liberalization policiespromote economic growth and are therefore beneficial to countriesthat embrace them. Unocal argued that their presence in Burma andpartnership with the Myanmar state was ultimately a positive force,because it was providing greater wealth for the country and jobs forBurmese citizens. They also argued that such economic growth wouldultimately contribute to the democratization of Burma and empowerits citizens to demand from its political institutions greater adherenceto human rights norms.

However, this discursive ambivalence reveals a kind of disingenuoussupport for human rights in Burma. As Aung San Suu Kyi pointed outrepeatedly, the vast percentage of wealth generated by foreign invest-ment is not used to improve the economic conditions of Burma’scitizens, but only to strengthen the military whose primary enemiesare the economic minorities and pro-democracy activists within theircountry. It is also unclear how Unocal’s use of slave labor in theconstruction of its $1.5 billion dollar gas pipeline project is providing‘‘jobs’’ for Burma’s citizenry in any meaningful sense. Nor is it clear howsuch corporate practices – despite the economic ‘‘growth’’ that theymight create – would ultimately contribute to Burma’s democratiza-tion, much less promote human rights.

Indeed, the National Foreign Trade Council (NFTC), an associa-tion of over 680 transnational corporations (chartered in the UnitedStates), intervened in the lawsuit, arguing that the federal court shouldnot hold Unocal liable because it could deter companies from eco-nomic engagement with the oppressive regime (Dale 2003: 279–285,and ch. 4). Although Unocal has repeatedly claimed to support humanrights, they have continued to aid and abet the Myanmar state’s use ofcoerced labor, and have intentionally exploited the situation for profit.

Unocal argued before the District Court of California that grantingjurisdiction over the Doe v. Unocal suit would interfere with the UnitedStates’ present policy on Burma, which Unocal stated was to refrain‘‘from taking precipitous steps, such as prohibiting all American invest-ment that might serve only to isolate the [Myanmar state] and actuallyhinder efforts toward reform’’ (Doe v. Unocal Corp., 963 F Supp 880, 894FN 17 (C.D. CA 1997)). In short, Unocal claimed that any courtdecision that might threaten the existence of such a previously estab-lished partnership (like that established between Unocal and theMyanmar Government) is an inappropriate intrusion by the courtinto United States’ foreign policy.

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The discursive ambivalence created by statesThe state too has shown discursive ambivalence with respect to humanrights. The federal court refused all requests to dismiss the Doev. Unocal case. Indeed, in response to Unocal’s claim that is has acivil right to freely contract, the Ninth Circuit Court pointed out thatit is has a civil obligation to uphold the Thirteenth Amendment aswell, which includes ‘‘forced labor’’ in its prohibition against slavery.‘‘The fact that the Thirteenth Amendment reaches private action,’’explained the court in its written decision, ‘‘in turn supports theview that forced labor by private actors gives rise to liability under[the] ATCA’’ (Doe v. Unocal Corp., 395 F 3d 932, 946 n. 18 [9thCir. 2002]).

The federal court also explained that because forced labor is a juscogens violation, not only can a private party be held liable, but theyshould be subject to the stronger international, not the weaker domes-tic, civil standard of liability, namely, ‘‘aiding and abetting’’ rather than‘‘direct and active participation.’’

14 Under the international standard ofaiding and abetting a jus cogens violation, the test for whether Unocal isliable is based not on their exercise of ‘‘control’’ over the Myanmarmilitary’s actions, but rather on whether Unocal could, or should, havebeen able to foresee a reasonable likelihood of the Myanmar military’susing the material support and information that Unocal provided themto commit a jus cogens violation.

15

As evidence of Unocal’s ‘‘aiding and abetting’’ the Myanmar mili-tary’s policy of forced labor in connection with the pipeline, it poin-ted to the testimony from numerous witnesses, including several of

14The District Court incorrectly borrowed the ‘‘active participation’’ standard for liability fromwar crimes before Nuremberg Military Tribunals involving the role of German Industrialists inthe Nazi forced labor program during World War II. The Military Tribunals applied the ‘‘activeparticipation’’ standard in these cases only to overcome the defendants’ ‘‘necessity defense.’’ Inthe present case, Unocal did not invoke – and could not have invoked – the necessity defense.The court notes that the tribunal had defined the necessity defense as follows: ‘‘Necessity is adefense when it shown that the act charged was done to avoid an evil both serious andirreparable; that there was no other adequate means to escape; and that the remedy was notdisproportionate to the evil.’’ Doe v. Unocal Corp., 395 F 3d 932, 948 n. 21 (9th Cir. 2002).

15‘‘We require ‘control’ to establish proximate causation by private third parties only in cases . . .where we otherwise require state action. In other cases – including cases such as this one –where state action is not otherwise required, we require no more than ‘foreseeability’ toestablish proximate causation. This requirement is easily met in the present case, whereUnocal Vice President Lipman testified that even before Unocal invested in the Project,Unocal was aware that the ‘option of having the [Myanmar] [M]ilitary provide protection forthe pipeline construction . . . would [entail] that they might proceed in the manner that wouldbe out of our control and not be in a manner that we would like to see them proceed,’ i.e., ‘goingto excess.’ ’’ Doe v. Unocal Corp., 395 F 3d 932, 954 n. 32 (9th Cir. 2002).

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the plaintiffs themselves, that they were forced to clear the right ofway for the pipeline and to build helipads for the project beforeconstruction of the pipeline began, which were then used by Unocalto visit the pipeline during the planning stages, as well as to ferry theirexecutives and materials to the construction site. In terms of Unocal’spractical assistance, Unocal hired the Myanmar military to providesecurity and build infrastructure along the pipeline route in exchangefor money and food. Unocal also provided the Myanmar military withphotos, maps, and surveys in daily meetings to show them where toprovide the security and build the infrastructure which Unocal hadhired them to do (Doe v. Unocal Corp., 395 F 3d 932, 952–953 [9thCir. 2002]).

The court further pointed to admissions made by Unocal repre-sentatives in two separate contexts that support the conclusion thatUnocal’s assistance had a ‘‘substantial effect on the perpetration offorced labor, which most probably would not have occurred in thesame way without someone hiring the Myanmar military to providesecurity, and without someone showing them where to do it.’’ The firstadmission was that of Unocal Representative Robinson to the USEmbassy in Rangoon (in the once-classified ‘‘Robinson cable’’ thatwas forwarded to the US State Department), which read: ‘‘Our asser-tion that [the Myanmar military] has not expanded and amplifiedits usual methods around the pipeline on our behalf may not with-stand much scrutiny’’ (Doe v. Unocal Corp., 395 F 3d 932, 953 [9thCir. 2002]).

The second admission was that of Unocal President Imle who, whenconfronted by Free Burma and human rights activists in January 1995at Unocal’s headquarters in Los Angeles, acknowledged to them thatthe Myanmar military might be using forced labor in connection withthe project by saying that ‘‘[p]eople are threatening physical damageto the pipeline,’’ that ‘‘if you threaten the pipeline there’s gonna bemore military,’’ and that ‘‘[i]f forced labor goes hand and glove with themilitary yes there will be more forced labor’’ (Doe v. Unocal Corp., 395 F3d 932, 941 and 953 [9th Cir. 2002]). Notably, the court observed thaton the basis of the same evidence, Unocal could even be shown tohave met the standard of ‘‘active participation’’ erroneously applied bythe District Court (Doe v. Unocal Corp., 395 F 3d 932, 948 n. 22 [9thCir. 2002]).

Responding to Unocal’s claim that this ATCA suit represents anunconstitutional intrusion by the judiciary into the United States’

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foreign policy toward Burma, the District Court disagreed withUnocal’s argument. First of all, instead of interpreting the StateDepartment’s foreign policy intentions for itself, the court asked theState Department directly to clarify its foreign policy position regardingBurma. In the ‘‘Statement of Interest of the United States,’’ the StateDepartment wrote that ‘‘at this time the adjudication of claims based onallegations of torture and slavery would not prejudice or impede theconduct of U.S. foreign relations with the current government ofBurma.’’16

Second, the court reasoned that, even if Unocal is correct in drawingupon the Congressional debates over whether or not to impose sanc-tions on Burma as a valid indicator of the Congressional and Executiveforeign policy position, that debate revolved around how to improveconditions in Burma by asserting positive pressure on the SLORCthrough investment in Burma.17 Yet, this lawsuit does not questionthis foreign policy. Instead, the court explained:

The [Doe] Plaintiffs essentially contend that Unocal, rather thanencouraging reform through investment, is knowingly taking advantageof and profiting from [the] SLORC’s practice of using forced labor andforced relocation, in concert with other human rights violations, includ-ing rape and other torture, to further the interests of the Yadana gaspipeline project. Whatever the Court’s final decision in this action maybe, it will not reflect on, undermine or limit the policy determinationsmade by the coordinate branches with respect to human rights viola-tions in Burma.

Doe v. Unocal Corp., 963 F Supp 880, 895 (C.D. Cal. 1997).

In other words, the District Court asserted that the foreign policy ofthe United States, regardless of its position on the influence of corpo-rate investment in Burma, does not intend to protect corporate activitythat violates human rights violations. The District Court rejected

16National Coalition Government of the Union of Burma v. Unocal, Inc., 176 FRD 329, 362 (C.D.Cal. 1997). Judge Paez initially authored the orders granting in part and denying in partDefendants’ Motions to Dismiss. See Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997).Judge Lew later authored the order granting Defendants’ consolidated Motions for SummaryJudgment. See Doe v. Unocal Corp., 110 F Supp 2d 1294 (C.D. Cal. 2000).

17 Statement of Sen. John McCain, 142 Cong. Rec. x 8755 (daily ed. July 25, 1996), quoted in Doev. Unocal Corp., 963 F Supp 880, 894 n. 17 (C.D. Cal. 1997). As Paez stated in his publishedcourt opinion, ‘‘Even accepting the Congressional and Executive decisions as Unocal framesthem, the coordinate branches of government have simply indicated an intention to encouragereform by allowing companies from the United States to assert positive pressure on S L O R Cthrough their investments in Burma.’’

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Unocal’s argument to have the suit dismissed on the grounds that itrepresented an impediment to the federal government’s foreign policy(National Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 FRD329, 354 n. 29 [C.D. Cal. 1997]).18

However, we have also seen how the US Supreme Court has soughtin Sosa v. Alvarez-Machain to contain the extent to which interna-tional human rights law might become enunciated within the UnitedStates’ federal court system. Furthermore, the executive and legis-lative branches of the Federal Government have been exercisingadditional power to delimit ATCA. For example, bowing to the poli-tical pressure of corporations, Congress could easily create limitationson the use of ATCA. In October 2005, California Senator DianneFeinstein, who serves on the Senate Energy and Natural ResourceCommittee, introduced S. 1874, a bill to reform the ATCA. Humanrights groups like EarthRights International (ERI) were quick todenounce the bill as the ‘‘Torturer’s Protection Act’’ (EarthRights Inter-national 2000b).

The bill prohibits any suit where a foreign government is responsiblefor the abuse within its own territory. ERI points out that this alonewould eliminate most ATCA cases. The bill excludes from lawsuits warcrimes, crimes against humanity, forced labor, terrorism, and cruel,inhuman and degrading treatment. It also requires that the defendantbe a ‘‘direct participant’’ in the abuse. In essence, it argues that courtsshould use civil rather than international standards (of ‘‘aiding andabetting’’ the abuse) in assessing liability. Also, as ERI correctly warns,‘‘Feinstein’s bill gives the [Bush] Administration a blank check to inter-fere [in court cases] and have any case it chooses dismissed’’ (EarthRightsInternational 2000b). Among the corporate beneficiaries would beChevron, who has donated $30,800 to Feinstein’s senatorial campaignssince 1989, according to the Center for Responsive Politics (Baker2005). Also noteworthy is that Unocal maintained its headquarters inCalifornia since 1890, until it merged with Chevron Texaco (nowChevron) on August 10, 2005. Unocal is now a wholly-owned subsi-diary of Chevron Corporation.

18The Ninth Circuit Court stated: ‘‘We agree with the District Court’s evaluation that ‘[g]iventhe circumstances of the instant case, and particularly the Statement of Interest of the UnitedStates, it is hard to imagine how judicial consideration of the matter will so substantiallyexacerbate relations with [the Myanmar Military] as to cause hostile confrontations.’’ Doev. Unocal Corp., 395 F 3d 932, 959 (9th Cir. 2002).

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This is not to suggest that the bill’s passage is a foregone conclusion.Only one week after introducing S. 1874, Feinstein submitted a formalletter to Chairman of the Senate Committee on the Judiciary ArlenSpecter requesting that he not proceed with the legislation at this time.Feinstein’s letter explains:

The legislation in question is designed to address concerns about theclarity of the existing Alien Tort Claim statute in light of the recentSupreme Court decision Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).However, I believe that the legislation in its present form calls forrefinement in light of concerns raised by human rights advocates, andthus a hearing or other action by the Committee on this bill would bepremature.

Although several California corporations would benefit from S. 1874,it is not yet clear that these corporations will ultimately wield moreinfluence over Senator Feinstein than human rights advocates.

There are, however, also pressures from the executive branch bear-ing on the future application of ATCA. The federal court’s decision tohear Doe v. Unocal prompted other transnational activist networks tohelp file more such ATCA suits against corporations – particularly,though not exclusively, oil corporations.

19 Chevron is a defendant inone ATCA lawsuit relating to its complicity in the killing of peacefulprotestors by the Nigerian military20 (Bowoto v. Chevron Texaco Corp.,312 F Supp 2d 1229 [N.D. Cal. 2004]). An ATCA suit was also filed inNew York by the family of late Ogoni activist playwright Ken Saro-Wiwa against Royal Dutch [Shell] Petroleum alleging that the corpo-ration had conspired with the military tribunal in Nigeria which hangedWiwa, along with eight other activists who were organizing oppositionto Royal Dutch Shell operations in their native Ogoniland on the delta

19 There have been other ATCA cases against corporations outside the oil industry. Coca-Cola,for example, have been sued under ATCA for their complicity in the murder and intimidationof union members from their Columbian factory. And, although the courts rejected their firstATCA claim in 1989, the new flurry of ATCA cases against corporations has encouraged arenewed effort by citizens in Bhopal, India, to hold Union Carbide liable for the 1989 gas-leakdisaster that caused thousands of deaths and permanent health problems.

20 The suit, which the plaintiffs originally filed against a pre-merger Chevron, seeks to hold thecompany responsible for both the deaths of protesters who occupied a Nigerian oil drillingplatform in 1998, and the attacks on residents of two Nigerian villages in 1999. The protesterswere shot and killed by Nigerian security forces who were flown to the site in helicopters thatwere used by the joint venture that ran the platform. Both cases involve projects of companiesthat were Chevron Texaco’s subsidiaries, rather than the parent company itself. Attorneys andactivists have asserted, however, that liability for these wrongdoings should rest with the parentcorporation and be pursued in the country where that parent corporation is chartered.

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of the Niger River (Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88[2d Cir. 2000]).21 Also, in 2001, eleven plaintiffs from the Aceh pro-vince of Indonesia’s Sumatra Island, with the help of the InternationalLabor Rights Fund, filed a suit using the ATCA against the ExxonMobil Corporation in a suit titled Doe v. Exxon Mobil (Doe v. ExxonMobil Corp., 393 F Supp 2d 20 [D.D.C. 2005]).22

Yet, it is not clear whether these cases strengthened ATCA as a toolfor addressing human rights abuses against corporations, or simplyprovided legal fodder that enabled the Supreme Court to justify nar-rowing the spectrum of human rights abuses committed by corporationsfor which the federal district courts may serve as a venue in ATCAsuits. As the ATCA case against Unocal lumbered through the appealscourt, the swifter decisions in these other ATCA cases provided usefuldiscursive resources for Unocal’s struggle to influence the courts todecide these legal conflicts in its favor. This became a significant factorafter the new US administration (with its strong ties to the oil industryunder George W. Bush, Dick Cheney, and Condoleezza Rice) began todiscursively redefine its foreign policy around ‘‘counter-terrorism.’’

In early August 2002, the State Department warned the DistrictCourt of the District of Columbia that the Doe v. Exxon Mobil case‘‘would hinder the war on terrorism and jeopardize U.S. foreign invest-ment in a key ally [Indonesia]’’ (Alden 2002). The Financial Timesreported that ‘‘a former State Department official,’’ had stated thatthe Department’s legal affairs office ‘‘saw an irresistible opportunity tostrike a blow against the Alien Tort Claims Act’’ (Alden 2002). Yet,the official also reported that the State Department’s letter came ‘‘aftera heated debate inside the agency, with its human rights bureau arguingthat U.S. intervention in the case would mar U.S. credibility on issuesof corporate social responsibility,’’ while other officials were ‘‘worried

21 The case is still working its way through the Federal District Court after the US Supreme Courtrefused to hear arguments for the dismissal of the suit in March 2001, effectively granting theNew York court jurisdiction.

22Exxon and Mobil merged in 1999. The International Labor Rights Fund is an advocacyorganization dedicated to achieving just and humane treatment for workers worldwide, andthe same organization who helped the National Coalition Government of Burma file their caseagainst Unocal. The suit alleges that Exxon Mobil had been complicit in human rightsviolations committed by Indonesian military units who were hired to provide security fortheir natural gas field located in the Aceh province. Since 1975, the Indonesian military hashad a history of violence and repression toward the Aceh ethnic minority and their Islamicseparatist movement. While under contract with Exxon Mobil, allege the Doe plaintiffs, thesemilitary units committed widespread abuses, including murder, torture, rape, and kidnapping ofthe Aceh local population.

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that the spate of court cases is angering US allies and interfering withthe government’s foreign policy authority’’ (Alden 2002). Publicly,however, the government issued a statement that claimed that ‘‘lettingthe case go to trial would harm the national interest, including the waron terrorism, and efforts to improve the Indonesian military’s record ofhuman rights abuses’’ (Efron 2002). During the same week, Unocallawyers asked California State Superior Court Judge Chaney, who ispresiding over a California ‘‘Unfair Business Practices’’ claims in a casebased on the same facts as Doe v. Unocal, to seek a similar governmentopinion, asserting that many of the arguments in the Doe v. ExxonMobil case were ‘‘equally applicable’’ to the Doe v. Unocal case.

These examples also highlight how economic globalization, and thetransnational legal space for regulating it, are always subject to politics.This law, interpreted by a court and subject to amendment by a federalcongress, reminds us of the vital role that states play in the process ofglobalization. All of these dimensions of state action (legislative, admin-istrative, and judicial) remain crucial to the unfolding struggle over therules and institutional arrangements of economic globalization.

Because human rights discourse is so often invoked as a political,legal, and moral resource for addressing (and diffusing contentiouschallenges to) the dehumanizing consequences of economic global-ization, it is important to focus on its many forms of practice – includingthe discursively ambivalent practices of corporate and state agents thatcombine human rights discourse with others that are meant to protectcorporations from being held accountable for their abusive humanrights practices, as well as those that are meant to minimize the state’svulnerability to international legal standards. Transcending the parti-cularities of any specific lawsuit under the ATCA, we may there-fore speak of a strategy that employs powerful discursive, ideological,and practical devices designed to stabilize this transnational legalspace around voluntary and legally non-binding practices of socialresponsibility.

C O N C L U S I O N

This case study has implications for existing theory on transnationalmovements and their relationship to human rights. Keck and Sikkink’sActivists Beyond Borders (1998a) has arguably influenced the theoreticaldiscussion of transnational movements more than any book publishedin the past five years. This influence is all the more impressive since the

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focus of their research is not on transnational movements per se, butrather on what they call ‘‘transnational advocacy networks’’ – that is,transnational networks of activists, distinguishable from other trans-national networks largely by the centrality of principled ideas or valuesin motivating their formation (Keck and Sikkink 1998a: 1; Keck andSikkink: 1998b: 217). Despite their efforts to distinguish such trans-national social formations from transnational movements (see, e.g.,1998b: 236), their metaphor of the ‘‘boomerang pattern’’ to des-cribe the influence characteristic of transnational advocacy networks –particularly under conditions in which channels between the state andits domestic actors are blocked – has itself channeled the interpretationsof many observers of transnational social movements.

When channels between the state and its domestic actors areblocked, the boomerang pattern of influence characteristic of transna-tional networks may occur: domestic NGOs bypass their state anddirectly search out international allies to try to bring pressure on theirstates from outside. This, claim Keck and Sikkink, is most obviously thecase in human rights campaigns (1998a: 12). Their model actuallyillustrates an additional step in this process whereby the domesticNGOs that have been blocked by their state activate the networkwhose members pressure their own states and (if relevant) a third-partyorganization, which in turn pressure the blocking, i.e., target, state.

This model focuses almost exclusively on interactions betweenstates and civil society. They provide no conceptual space for examin-ing interactions between markets and society. Corporations and marketrelations do not appear in Keck and Sikkink’s conceptual model of howtransnational social movements or transnational advocacy networksexert pressure for changing the human rights conditions that motivatedtheir action. Yet, as we have seen in the case of the Free Burma move-ment, the trade relations between states and transnational corporationsmay constitute a very different kind of target and may require a differ-ent kind of pressure for affecting social change than that presumed byKeck and Sikkink’s model.

Keck and Sikkink correctly emphasize the continuing significance ofstates, their reasons for doing so betrays, in light of the empiricalevidence presented in this chapter, a questionable assumption regardinghuman rights practices and their implications for transnational move-ments. They claim that governments are the primary violators of rights(1998a: 12). Based upon this assumption, they build the conceptuallogic of their boomerang pattern: ‘‘When a government violates or

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refuses to recognize rights, individuals and domestic groups often haveno recourse within domestic political or judicial arenas. They may seekinternational connections finally to express their concerns and even toprotect their lives’’ (1998a: 12).

One of the lessons that we should take from the transnationalcampaigns of the Free Burma movement is that transnational corpo-rations, as much as governments, may also be significant violators ofhuman rights. In some cases, transnational corporations may even worktogether with states in violating them. Moreover, the Doe v. Unocal,and other cases filed against both corporate- and state-violatorsof human rights under the ATCA reflect a transnational legal spacewhere individuals and groups outside the United States may wellfind recourse within the judicial arenas of the US federal courts. Thatis, the domestic state in which human rights victims hold their citizen-ship does not necessarily have a monopoly on their access to a judicialarena. Each of these points taken on their own may seem like trivialtinkering with Keck and Sikkink’s model. Taken together however,they begin to suggest an alternative pattern of transnational pressurethat is distinctly different from the ‘‘international pressure’’ depicted intheir model.

Keck and Sikkink’s treatment of ‘‘international pressure’’ seems tosuggest practices whereby foreign states are persuaded – via combina-tions of various types of politics (information, symbolic, leverage, andaccountability) – to intervene in the affairs of the target state eitherdirectly or else through a mediating intergovernmental organization.However, the case study that I present in this chapter suggests a differ-ent pattern of pressure whereby foreign states neither intervene directlyin the affairs of the target state, nor through a mediating intergovern-mental organization. The various types of politics identified by Keckand Sikkink are still important to this alternative pattern of pressure,but they are deployed within a transnational legal space over legisla-tive, administrative, and judicial maters of US law that mediate howglobal markets (in this case linking corporations chartered in theUnited States with the Myanmar state) become embedded in politics,law, and morality. It is through these legislative, administrative, andjudicial dimensions of state action, and at multiple spatial levels of stateaction (municipal, regional, and federal) that the United States exer-cises pressure – transnational, as opposed to international, pressure –on the transnational corporations that buttress the power of theMyanmar state. That is, Keck and Sikkink focus on international

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pressure that states exert on other states (sometimes mediated throughintergovernmental organizations), but they provide no conceptualspace for considering the transnational pressure that states exert ontransnational corporations. Such pressure may well contribute to socialchange within the blocking state that has forged business relations withthe targeted transnational corporations. Only with substantial concep-tual stretching might one suggest that this pattern of pressure representsa state exerting pressure on another state.

The case of the Free Burma movement illustrates how transnationalmovements that focus on influencing domestic policies in democraticstates are not necessarily less effective in enhancing representation ofgroups suffering under authoritarian rule. Although a transnationalmovement campaign’s focus on jus cogens violations may seem overlynarrow or obscure, it may have a very significant impact on globalgovernance. The transnationalist discourse deployed by the Free Burmaactivists has effectively problematized the discursive fusion of ‘‘freetrade’’ and ‘‘human rights’’ asserted by the discourse on ‘‘constructiveengagement’’ in the context of addressing the abusive practices of theMyanmar state. This case also illustrates how groups suffering underauthoritarian rule may be repressed by not only the domestic policies ofauthoritarian states, but also by the domestic policies of democraticstates that facilitate the undemocratic practices of the transnationalcorporations that collaborate with authoritarian states in repressinggroups that live there. When we pay closer attention to these trans-national connections between democratic and authoritarian states,their domestic policies, and their citizens, as well as to the transnationalcorporate practices and partnerships that span the boundaries of demo-cratic and authoritarian states, it blurs the binary conceptual distinc-tion through which we differentiate states as either ‘‘democratic’’ or‘‘authoritarian.’’ This provides the first analytical step toward creatingnew possibilities for imagining transnational legal action that effec-tively challenges the dominant relations and discourses sustainingsuch a reified conceptual distinction between democratic and authori-tarian states.

ATCA is a potentially useful tool for furthering human rights. But itis also one that, when combined with other countervailing discourses,may become so diluted or de-clawed that it fails to retain the power orscope to reach some of the most egregious violators and violations ofhuman rights. The struggle over ATCA illustrates the ambivalenceand discursive dilemmas of foreign policy conservatives who have

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appropriated the language of international human rights for their ownpurposes. The consequence is that they are in an awkward position intrying to draw a line that immunizes US firms from complicity in suchabuses. Yet, I have argued, even in the current political environmentthere are reasons to believe that this transnational legal strategy, usingATCA to hold liable corporations that aid and abet human rightsviolations, has legs.

This legal strategy represents one of the most significant efforts of thepast century to reign in the power of transnational corporations. Thecase of Doe v. Unocal dramatically demonstrates the potential for usingtransnational legal action to challenge neo-liberal understandings ofglobalization. Rather than allowing the proponents of neo-liberal glob-alization to dismiss human rights concerns as ‘‘artificial obstacles to freetrade,’’ the federal courts have been providing a venue for discussingcorporations’ responsibilities and liabilities with regard to humanrights. By shaping the moral boundaries within which corporationscompete for profits, these venues have provided an important institu-tional mechanism and discursive resource for further discussion of howand why global markets are not self-regulating, but rather are (and mustalways be) institutionally constructed through and embedded in poli-tics, law, and morality.

Despite the ambivalent discursive practices of both corporate andstate actors who have donned the mantle of human rights, we shouldresist insisting that human rights discourse itself is necessarily hegem-onic. Doing so serves ultimately to further empower those who seek toinstrumentally subordinate human rights norms to the control of mar-kets and particular nation-states. Rather we must focus on the ways thatcompeting social actors – including corporations and states – drawupon human rights discourse and combine it with diverse configura-tions of multiple discourses to insert their own networks’ social arrange-ment of power, practice, and meaning. Human rights discourse is notoppressive; but how we institutionalize the legal arrangement of humanrights in practice can be.

This case, therefore, speaks not only to the discursive ambivalence ofhuman rights practice, but also to what Goodale refers to as the‘‘betweenness’’ of human rights discourse:

the ways in which human rights discourse unfolds ambiguously, withouta clear spatial referent, in part through transnational networks, but also,equally important, through the projection of the moral and legal

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imagination by social actors whose precise locations – pace Keck andSikkink – within these networks are (for them) practically irrelevant.

(Goodale, Introduction, p. 22 above.)

An approach highlighting transnational legal discourse is importantprecisely because the state’s legal discourse and norms are so oftenhegemonic. Appreciation for the success of these transnational legalcampaigns begins not with an accounting of victory or defeat in thecourt, or on the floor of the legislature, nor merely with an assessmentof their direct role in transforming existing international law or globalnorms, but rather with the capacity of their participants to create analternative discursive space in the legal records of the transnationalstruggles that take place in these institutions of the state.

These records, combined with the experiences of allied movementparticipants supporting the campaigns from outside the legal institu-tional arena, provide critical resources for sustaining the kind of publiccollective memory that future transnational campaigns and movementswill have to draw upon in the inevitably incremental struggle fordemocratic global change. Transnational discursive strategies help usto re-conceptualize the relations within which we institutionalize eco-nomic globalization, as well as the way that we imagine the possibilitiesof participating in its institutionalization.

R E F E R E N C E S

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Amnesty International. 2004. ‘‘Appeals for Action: Myanmar: EndCrackdown Now’’, April 5. Available on-line at web.amnesty.org/pages/mmr-040603-action-eng, accessed February 8, 2007.

Amnesty International. 2006. ‘‘Urgent Action: Myanmar: Possible ‘disappear-ance’/Fear of torture/Arbitrary detention’’, January 20. Available on-line atweb.amnesty.org/library/Index/ENGASA160012006?, accessed February8, 2007.

Baker, David R. 2005. ‘‘Chevron Donates to Lawmakers against China Bid;Politicians Deny Link to Stance on Oil Firm’s Unocal Offer.’’ SanFrancisco Chronicle, July 23, p. C1.

Bales, Kevin. 1999. Disposable People: New Slavery in the Global Economy.Berkeley, Los Angeles, and London: University of California Press.

Bassiouni, Cherif. 1996. ‘‘International Crimes: Jus Cogens and Obligatio ErgaOmnes.’’ Law and Contemporary Problems 59: 63–74.

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How it Works

  1. Clіck оn the “Place оrder tab at the tоp menu оr “Order Nоw” іcоn at the bоttоm, and a new page wіll appear wіth an оrder fоrm tо be fіlled.
  2. Fіll іn yоur paper’s іnfоrmatіоn and clіck “PRІCE CALCULATІОN” at the bоttоm tо calculate yоur оrder prіce.
  3. Fіll іn yоur paper’s academіc level, deadlіne and the requіred number оf pages frоm the drоp-dоwn menus.
  4. Clіck “FІNAL STEP” tо enter yоur regіstratіоn detaіls and get an accоunt wіth us fоr recоrd keepіng.
  5. Clіck оn “PRОCEED TО CHECKОUT” at the bоttоm оf the page.
  6. Frоm there, the payment sectіоns wіll shоw, fоllоw the guіded payment prоcess, and yоur оrder wіll be avaіlable fоr оur wrіtіng team tо wоrk оn іt.

Nоte, оnce lоgged іntо yоur accоunt; yоu can clіck оn the “Pendіng” buttоn at the left sіdebar tо navіgate, make changes, make payments, add іnstructіоns оr uplоad fіles fоr the оrder created. e.g., оnce lоgged іn, clіck оn “Pendіng” and a “pay” оptіоn wіll appear оn the far rіght оf the оrder yоu created, clіck оn pay then clіck оn the “Checkоut” оptіоn at the next page that appears, and yоu wіll be able tо cоmplete the payment.

Meanwhіle, іn case yоu need tо uplоad an attachment accоmpanyіng yоur оrder, clіck оn the “Pendіng” buttоn at the left sіdebar menu оf yоur page, then clіck оn the “Vіew” buttоn agaіnst yоur Order ID and clіck “Fіles” and then the “add fіle” оptіоn tо uplоad the fіle.

Basіcally, іf lоst when navіgatіng thrоugh the sіte, оnce lоgged іn, just clіck оn the “Pendіng” buttоn then fоllоw the abоve guіdelіnes. оtherwіse, cоntact suppоrt thrоugh оur chat at the bоttоm rіght cоrner

NB

Payment Prоcess

By clіckіng ‘PRОCEED TО CHECKОUT’ yоu wіll be lоgged іn tо yоur accоunt autоmatіcally where yоu can vіew yоur оrder detaіls. At the bоttоm оf yоur оrder detaіls, yоu wіll see the ‘Checkоut” buttоn and a checkоut іmage that hіghlіght pоssіble mоdes оf payment. Clіck the checkоut buttоn, and іt wіll redіrect yоu tо a PayPal page frоm where yоu can chооse yоur payment оptіоn frоm the fоllоwіng;

  1. Pay wіth my PayPal accоunt‘– select thіs оptіоn іf yоu have a PayPal accоunt.
  2. Pay wіth a debіt оr credіt card’ or ‘Guest Checkout’ – select thіs оptіоn tо pay usіng yоur debіt оr credіt card іf yоu dоn’t have a PayPal accоunt.
  3. Dо nоt fоrget tо make payment sо that the оrder can be vіsіble tо оur experts/tutоrs/wrіters.

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