Historical Overview of Military Rule in Burma

In 1948, the Union of Burma achieved nominal independence from British colonial administration after decades of colonial rule. The new parliamentary democracy was beset by conflict among diverse groups as ethnic minorities sought autonomy from the Burman ethnic majority. A military coup ended representative government in 1962, and for the next 26 years the Burma Socialist Program Party (BSPP) led a military-dominated regime that ruled without free elections, freedom of association, or freedom of expression. In the 1960s and 1970s, student and worker protests against the regime were crushed. Meanwhile, ethnic opposition groups continued to fight guerilla wars in outlying regions of the country. The BSPP's isolationist economic policies led to deteriorating economic conditions, including food shortages.

In 1988, popular discontent was manifest in widespread demonstrations against the military regime, with hundreds of thousands of Burmese calling for democratic elections. In response, the army declared a coup and seized direct power as the State Law and Order Restoration Council (SLORC)—later renamed the State Peace and Development Council (SPDC).Footnote ² After massacring thousands of demonstrators, the SLORC announced that elections would be held once “peace and tranquility” had been restored. The military government apparently thought that its hastily organized party, the National Unity Party, would win the post-coup elections, and that it had adequately rigged the vote in its favor. Yet when elections were held in 1990, the National League for Democracy (NLD) led by Aung San Suu Kyi won more than 80 percent of parliamentary seats—though the NLD and other opposition parties had fewer resources and less access to media than the SLORC. The regime denied the validity of the election and began cracking down against perceived political enemies and NLD supporters, placing Aung San Suu Kyi under house arrest.

Many of the Burmese diasporic activists currently opposing the regime abroad left after the events of 1988 and 1990. The SPDC/SLORC continues to rule by fiat. In October 2007, the regime again suppressed widespread popular uprisings by Buddhist monks, students, and others in Burma.

Natural Resource Exploitation and Military Repression

Burma is abundant in natural resources that have nonetheless not benefited the vast majority of people living there, neither under British colonial rule nor under Burmese military rule that began in 1962. The BSPP's “Burmese Way to Socialism” rejected foreign capital and trade, crippling economic growth for decades. However, these policies shifted after the 1988 suppression of Burma's democracy movement, when the country was nearly bankrupt. The SLORC needed an influx of funds, so it officially abandoned socialism and sought foreign investors to finance the development and exploitation of Burma's natural resources—including vast tracts of forest, fishery concessions, mineral reserves, and oil and gas fields. Often such resource exploitation has been devised to produce quick profits for the regime, regardless of effects on the environment or human rights. The Burmese military forbids complete foreign ownership of companies operating in Burma; hence, most major investments are joint ventures with the regime. So while international investment may help bring about socially beneficial economic development in certain contexts, in Burma such investment is funneled mainly to military-run companies that dominate much of Burma's trade and industry, thereby strengthening the military regime (Reference FinkFink 2001:4). These projects often entail forced labor, forced relocations, and the destruction of forests and fisheries that have supported the livelihoods of local communities for centuries.

Given these political and economic contexts, in Burma the exploitation of natural resources and military repression are deeply intertwined, particularly in large infrastructure projects such as the Yadana gas pipeline in which Unocal invested. For all these reasons, Aung San Suu Kyi supports economic sanctions and boycotts on foreign investment in Burma, including the Yadana pipeline, arguing that such investment serves the military regime and not the broader Burmese society. Yet Unocal and other transnational corporations (TNCs) continue to assert that foreign investment is inherently beneficial and that to disinvest in Burma or countries with similarly repressive governments would be unhelpful and even harmful to democratic prospects. This stance is reinforced by hegemonic neoliberal policy frameworks that undermine the legitimacy of market regulation in general, in Burma and beyond—including the regulation of TNCs on behalf of labor, the environment, or human rights.

In sum, activists fighting for human rights in Burma, including accountability for corporate business operations, confront incredible political challenges. Within Burma, open resistance and mobilization are rare; when uprisings have occurred, as in October 2007, the military regime has countered them with brutal massacres and jailing of dissidents. Outside of Burma, Burmese diasporic activists still face enormous obstacles, as well as personal risks, including the possibility that agents of the Burmese regime will retaliate against relatives who remain in Burma. Yet there are far greater opportunities for mobilization against the Burmese regime in an international context than in a domestic context. Diasporic activists have greater freedom to associate and express their views, as well as additional allies, funding sources, and tactical possibilities that may be leveraged to exert external pressure on the regime, catalyzing “boomerang effects” as discussed above. Below I delve into one of these tactical possibilities, ATCA litigation, which exploits the expanded political opportunities for certain activists in an international context as well as specifically legal opportunities constituted by civil and human rights lawyers in 1980.

Human Rights Advocacy Organizations Litigating ATCA Cases

The first group of organizations in this study—advocacy organizations engaged in ATCA litigation—consisted of the CJA, ERI, and the International Labor Rights Fund (ILRF), which has since changed its name to the International Labor Rights Forum. These are three of the primary U.S. human rights organizations that have used the ATCA to advance their work. CJA litigates ATCA cases against individuals, while ERI and ILRF served as co-counsel in Doe v. Unocal and have gone on to litigate other corporate ATCA cases. In 2004, when much of the research for this article was conducted, these three organizations and one other, the CCR, were the only NGOs in the United States to employ ATCA litigation in their work, as part of broader social struggles that they and other actors were engaged in.

Interviews With Human Rights Litigators

The four human rights litigators interviewed for this case study were selected based on their affiliations with these organizations and their knowledge of Doe v. Unocal or other ATCA cases. In semi-structured, open-ended interviews lasting between 30 minutes and one hour, litigators were asked what they perceived to be the main challenges to and opportunities for advancing the objectives of their organization, how they employed litigation and other tactics in that work, and whether and how they thought ATCA litigation articulates with extralegal struggles for social change beyond their organization, including the work of grassroots activists. Those litigators involved with Doe v. Unocal were asked to reflect on the case's import vis-à-vis the larger struggle for human rights in Burma. Litigators were also asked how they viewed the relationship between ATCA lawsuits against individuals versus those against corporations, and whether they thought ATCA cases matter beyond their final outcomes.

Grassroots Burmese Organizations Mobilizing for Human Rights and Democracy

The second group of organizations in this study—grassroots organizations comprising mainly Burmese diasporic activists—consisted of the Burmese American Democratic Alliance (BADA) and the Burmese American Women's Alliance (BAWA). BADA and BAWA are the principal grassroots organizations oriented toward Burmese democracy and human rights issues in the San Francisco Bay Area, as well as important nodes of such activism on the West Coast—part of a long-term international “Free Burma” campaign that has ebbed and flowed over the years among various groups and locales. Both organizations comprise mostly Burmese Americans, though some members are non-Burmese activists concerned about repression in Burma.

While there is great ethnic, socioeconomic, and geographic diversity among Burmese diasporic activists, the common ground of these groups is that they overwhelmingly oppose the Burmese military regime (Reference ThawnghmungThawnghmung 2005). Where groups differ is in their vision of a post-regime Burma, in particular whether they emphasize a unified, democratic Burma under the leadership of the NLD and Aung San Suu Kyi, or place greater emphasis on autonomy for their particular ethnic group. Sometimes these efforts are combined. The groups in this study, BADA and BAWA, strive to bring democracy to Burma, rather than more particular goals of ethnic autonomy or religious freedom; their memberships include a range of ethnic groups and religions.

As a researcher, I first connected with these two organizations at a Burmese Human Rights Day in Berkeley in March 2004, an annual event sponsored by BADA that features national and international activists in the Free Burma movement. I subsequently contacted activists and explained that I was interested in learning more about their work to advance human rights in Burma, including how they came to that work, without mentioning an explicit focus on law or the Doe v. Unocal (1997, 2000) case.

Interviews With Grassroots Activists

The sixteen activists interviewed for this case study were selected primarily based on their positions within BADA and BAWA (e.g., as executive committee members, board members, or founding members), rather than through snowball or random sampling techniques. The rationale was that these informants could best speak to organizational strategy, perceived opportunity structures, framing, and organizational resources. Interviews were conducted in English, semi-structured, and open-ended, and averaged one hour in length. Grassroots activists were asked a broader range of questions than litigators, in order to delve into grassroots perspectives on human rights discourse, rights consciousness, and legal mobilization. Activists were asked about challenges and opportunities for advancing their organizational objectives, including which tactics they saw as most effective. They were asked about their knowledge and perception of the Doe v. Unocal case, and how they would evaluate the case or future ATCA litigation if the courts ruled in favor of Unocal, or if the case were dismissed. In addition, activists were asked how they first encountered human rights discourse and how it figured into their personal understandings and activism. In responding to these questions, activists often shared more general reflections on Burma and U.S. publics, corporate accountability, rights, and globalization. Many spoke about the personal trajectories through which they became activists—narratives that are beyond the scope of this article.

Initial Hypotheses

This research began with the hypothesis that Doe v. Unocal would matter to litigators and human rights advocacy organizations but would have little significance to the collective claims-making of grassroots activists not formally associated with the case—and hence to broader dynamics of legal mobilization. This research also began with the hypothesis that there would be a significant disjuncture between the ways litigators and activists might talk about the case in relation to broader social change efforts.

Organizational Growth and Capacity-Building

One of the most significant indirect effects of Doe v. Unocal, beyond formal legal outcomes, was the organizational growth and capacity-building that took place in the course of litigation. The most outstanding example of such organizational growth is ERI, a human rights advocacy and legal organization that did not exist prior to mobilizing around Doe v. Unocal. While ERI's broader mandate is to advocate for “earth rights” around the world, the organization was founded in 1995 to help litigate Doe v. Unocal and grew directly from engagement with Burmese human rights and environmental politics, particularly the Yadana pipeline project. ERI's founders included two human rights litigators, Katie Redford and Tyler Giannini, as well as Karen Burmese activist Ka Hsaw Wa, a leading human rights activist in the Burmese diasporic community who was a student leader in the 1988 demonstrations, after which he fled Burma. According to Redford, she first learned about the Yadana pipeline project during a summer law school internship along the Thai-Burma border. As Redford describes the relation between the Yadana project and the founding of ERI:

Initial funding for ERI came from Echoing Green, a foundation that provides seed money for organizational start-ups that Redford and her colleagues persuaded of the potential of litigation, even while “prior to filing the case, we had so many people – our law professors, other foundations, our parents – telling us that we were crazy” (Reference RedfordRedford 2008: n.p.).

In other words, legal mobilization around Doe v. Unocal resulted in the founding of ERI, an organization with broader social change objectives that has gone on to serve as co-counsel in similar ATCA cases, provide informational resources on filing ATCA lawsuits (ERI 2003a), and maintain a “Burma Project” to document and organize around ongoing human rights violations in Burma. Today, ERI's principal activities include (1) training emerging human rights and environmental leaders, (2) litigation to hold corporations and governments accountable for human rights and environmental abuses, and (3) advocacy campaigns to expose earth rights violations and protect earth rights legal mechanisms, where “earth rights” are understood as “those rights that demonstrate the connection between human well-being and a sound environment, and include the right to a healthy environment, the right to speak out and act to protect the environment, and the right to participate in development decisions” (ERI 2003b:3). So not only did Doe v. Unocal result in organizational capacity-building, it also catalyzed the formation of a unique human rights NGO, working at the intersection of environmental and human rights issues. These are among the significant indirect effects of this litigation. A legal mobilization approach helps illuminate these impacts as legal realist and CLS frameworks do not.

ATCA litigation in Doe v. Unocal also helped the ILRF to build organizational capacity by providing an avenue for mobilization around legally enforceable human rights and labor standards in the context of globalization. ILRF began forming in the early 1980s, as a coalition of advocates from the human rights, labor, academic, and faith-based communities for the rights of workers in a globalizing economy. In 1984, the coalition secured legislation in the Generalized System of Preferences that linked the granting of U.S. trade and investment benefits to countries' respect for labor rights. In 1986, the coalition founded the International Labor Rights & Education Research Fund (later shortened to ILRF) to monitor enforcement of these laws and develop additional tactics to fight for workers' rights around the world. One of ILRF's primary tactics from the late 1990s onward was ATCA litigation against corporations, beginning with Doe v. Unocal.

So while Doe v. Unocal was not the catalyst for founding ILRF, as it was for ERI, the case and similar ATCA litigation did build on ILRF's pre-existing organizational commitments in the field of human and labor rights, opening avenues to mobilize around legally enforceable human rights standards for TNCs. ATCA litigation also helped ILRF distinguish itself among advocacy organizations devoted to labor and human rights. As its 2005 annual report states, “Perhaps our most unique contribution to the global effort to protect workers has been through successful legal advocacy” (ILRF 2005:1). The report mentions that ILRF is the only human rights and anti-sweatshop NGO to have utilized tactics ranging from campaigning to litigation in order to promote economic and social rights for workers around the world.

As for the grassroots Burmese organizations in this study, BADA and BAWA, since these groups were not parties to Doe v. Unocal, ATCA litigation did not impact the organizational growth and capacity-building as directly as it did for ERI and ILRF. Rather, BADA and BAWA activists spoke of less direct connections between the case and their activities and organizations, discussed in the following section. In any case, all the Burmese human rights activists interviewed knew about the case, supported it, and thought it was important in the fight for democracy and human rights in Burma. Moreover, activists were familiar with ERI and Ka Hsaw Wa, who had spoken about Doe v. Unocal at a recent BADA event.

Growth of TANs and Possibilities for Boomerang Effects

Another important indirect effect of Doe v. Unocal (1997, 2000) was the growth of TANs in conjunction with mobilizing around the case—an effect intertwined with organizational growth and capacity-building by ERI and ILRF. As these organizations developed relationships with plaintiffs and communities along the Thai-Burma border and beyond, they forged transnational ties to assist with mobilization in Doe v. Unocal and similar cases. ERI now maintains offices in Washington, D.C., and Southeast Asia, for example, and operates an Earth Rights School in Southeast Asia as well. Since its founding, ERI has also collaborated with organizations based exclusively in Southeast Asia, such as the Southeast Asian Information Network (SAIN), with which it researched and produced its first report in July 1996, Total Denial: A Report on the Yadana Pipeline Project in Burma. The report opens with letters of support and solidarity from not only the Secretary General of the National Council of the Union of Burma (composed of elected members of Parliament from the 1990 election), but also field officers from Environmental Rights Action in Nigeria, and a coordinator of the international coalition OILWATCH—all groups fighting environmental and labor abuses by oil companies at that time. ERI has continued to nurture and mobilize such international ties and TANs in its work, in tandem with its ATCA litigation efforts.

While ILRF's ties with Burma and Southeast Asia are not as extensive as those of ERI, in 2005, ILRF established its first overseas office in Quito, Ecuador, “to build and maintain partner relationships in the Central and South American region” (ILRF 2005:2). ILRF is currently involved in ATCA cases on behalf of plaintiffs in Argentina, Colombia, Ecuador, Guatemala, and Nicaragua, in addition to corporate campaigns in the region without a litigation component. It is also involved in ATCA litigation in Liberia, Indonesia, and Turkey, among other countries. Like ERI, ILRF's involvement in ATCA litigation has been intertwined with building networks across national borders. ILRF litigator Collingsworth noted that ATCA cases often result in the growth of TANs because such networks are needed in order to initiate cases, and lawsuits may then serve as nodes for further mobilizing across borders, including among actors not directly involved in litigation processes. As an example, he cited an ATCA lawsuit that ILRF pursued against the Coca-Cola Company for allegedly aiding and abetting paramilitary executions of trade union leaders in Colombia (Sinaltrainal, et al. v. Coca-Cola Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003):

So regardless of formal legal outcomes, the processes of litigating Doe v. Unocal and similar ATCA cases have resulted in the growth of new TANs mobilized around human rights and corporate accountability, with the potential to have progressive boomerang effects on TNCs and states. These TANs comprise disparate actors across national borders with few other avenues for such mobilization.

Broadening Tactical Repertoires

Litigators and grassroots activists also had a lot to say about the ways in which Doe v. Unocal (1997, 2000) and similar ATCA litigation broadened their tactical repertoires. Many mentioned the synergy between litigation and other tactics, such as shareholder resolutions, in pressuring Unocal and other corporations to respect human rights and environmental standards. More than half of the BADA and BAWA activists interviewed had taken part in annual demonstrations against Unocal at its shareholder meeting in Los Angeles. BADA's president mentioned that he spoke at Unocal's 2003 meeting, where he and others discussed Doe v. Unocal in the context of urging shareholders to support a resolution for Unocal to divest from Burma. Unocal reportedly devoted more than half of that meeting to addressing the Yadana project, though it comprised only a fraction of Unocal's total investments. BADA's president thought that the company's preoccupation with defending its Burmese investments to shareholders indicated the importance of negative publicity from the case, saying, “I think they [Unocal] are very conscious of their image. The amount of money invested in the Burma project might be a miniscule amount but I think they are very, very afraid that their image will suffer” (Interview with V. W., 25 April 2004).

A grassroots organizer working with BADA also emphasized the boost Doe v. Unocal gave to shareholder activism, saying, “A lawsuit is a really clear way in which getting involved in human rights abuses comes back to hurt the bottom line. I bring that lawsuit up a lot [when I talk to shareholders]. … It's one of the many risks that they face” (Interview with H. Q., 8 October 2004). In other words, Doe v. Unocal expanded the tactical repertoires of grassroots activists as well as those of litigators, particularly in combination with tactics such as shareholder education and protest at corporate meetings.

Litigators also discussed the potential synergies between lawsuits such as Doe v. Unocal and broader campaigns, often in the context of talking about the limitations of legal tactics alone and law's place in a larger mosaic of human rights and social justice activism. As Collingsworth put it, “The weakness of most campaigns is that they lack teeth …. Using litigation in tandem with a campaign could provide this necessary element” (Reference CollingsworthCollingsworth 2002:193). Hence in deciding whether or not to take on cases, ILRF considers social factors beyond the details of the legal case, e.g., whether a company is public and could be a good target for larger campaigns, via boycotting or shareholder activism (Interview with ILRF lawyer, 19 October 2004). While these tactics and synergies were also mentioned by grassroots activists, litigators were more likely than grassroots activists to talk about the enforcement potential of ATCA litigation and the contribution of ATCA corporate lawsuits to their tactical repertoires on that basis.

Cultivation of Symbolic and Communicative Resources

Litigators and grassroots activists also thought that Doe v. Unocal (1997, 2000) helped cultivate symbolic and communicative resources for movement-building and mobilization. Some activists pointed out that Doe v. Unocal provided a unique foothold for U.S. national media and other public outreach around Burmese human rights issues. A co-founder of BAWA emphasized the case's importance as a public education tool, saying, “That's the only case that's being sued in the U.S. [involving Burma] … if Unocal gets affected then [the Burmese government] will get affected. It would be nice if that case was well-known and people know about the situation in Burma … because let alone knowing about the situation in Burma, people don't even know there's a country called Burma” (Interview with K. K. L., 24 April 2004). Other Burmese activists echoed these sentiments, saying that the case gave them a unique chance to tell their stories and talk about Burmese politics with broader audiences, from non-Burmese publics to U.S. elected officials.

Echoing the thoughts of BADA's president, activists also talked about the case's importance in instigating negative publicity for Unocal, and not only at the annual shareholders meeting. One BADA member pointed out that Unocal's involvement in Burma had been covered in publications ranging from The Wall Street Journal and The Economist to Newsweek, exposing the risks of Unocal's business ventures to wider audiences. Meanwhile, a BADA board member speculated that the case not only created negative publicity for Unocal, but more broadly, “[The case] gives American business a black eye” (Interview with R. D., 16 October 2004). While these views represent activists' speculations, they parallel risk assessments (Reference Hufbauer and MitrokostasHufbauer & Mitrokostas 2003) as well as the perspectives of many business commentators on ATCA corporate cases. As one such analyst weighed in on this point, “The punitive results of such [ATCA] trials have been mixed, but the risk to the reputation of a multinational firm facing an ATCA charge far outweighs any direct monetary damages” (Reference ShuteShute 2007:1).

Activists and litigators talked as well about the symbolic power of law itself and the potential for Doe v. Unocal and similar ATCA cases to cultivate symbolic and communicative resources on that basis, by legitimating specific human rights violations in a legal context. For example, a litigator with ERI mentioned that while he saw Doe v. Unocal as only “a small piece of the puzzle” in the broader movement for human rights in Burma, “I think that it's important in that it first of all will validate the claims of these particular people that they were subject to abuses by the Burmese military. It will also show how Unocal is complicit in those abuses, and it calls attention more broadly to abuses in Burma and U.S. corporate complicity” (Interview with ERI lawyer, 28 October 2004). Speaking to the particular symbolic power of a legal context for documenting violations of human rights, he continued, “I think [the law] has an important role. … When a U.S. court hears evidence about particular human rights abuses and says that it happened, the court is seen as sort of a neutral institution that validates the claims that the plaintiffs had been making” (Interview with ERI lawyer, 28 October 2004). In other words, this litigator saw ATCA cases as providing an avenue for publicly documenting and acknowledging human rights violations. He stressed the legitimizing potential of legal tactics in general and their importance in substantiating details of corporate abuses in Doe v. Unocal in particular.

Other activists emphasized that the case helped specify and reveal the human dimensions of Burma's political situation, as well as demonstrate the consequences that can follow from a lack of corporate accountability in the global economy. As a BADA board member put it, “Legal tactics like the Unocal example are helpful because we can prove which girl was raped and killed, which man was killed, whose homes were destroyed by the military, how they came there, got livestock, pigs, these things, destroyed their homes and gardens to make way …” (Interview with A. K., 2 October 2004). Another BADA member emphasized the emotional significance of such specific acts of documentation and validation, saying, “Through this case you see very personally the devastation that's caused by that government and whoever's supporting that government. It's not just a statistic anymore. You really see what this is. You really feel this human pain” (Interview with J. M., 7 October 2004). He thought the case had provided a specific narrative and rallying point for activists involved in Burmese human rights activism. His remarks also suggest that individualizing, personalizing aspects of legal tactics may help highlight specific human stories and incidents for the media, publics, and policy makers, while not necessarily impeding collective claims-making. As BADA's president said in his speech to Unocal shareholders:

Finally, one of the litigators emphasized the ways in which human rights discourse is a useful resource for constructing public communication frames pertaining to corporate accountability and labor rights, given the purported universality of human rights discourse. The litigator stressed that the universal connotations of the human rights frame are especially crucial to ILRF's work because the organization wants to avoid charges of “protectionism” or of serving only the interests of American labor. As he put it, “We don't want to be perceived as having our agenda driven by American unions … [though] if there are unions that want to work with us and help us and join us in solidarity, that's great” (Interview with ILRF lawyer, 19 October 2004).

This litigator's perspective on the value of human rights discourse for corporate accountability mobilization articulates with a broader landscape of debate over the ways in which human rights discourse may be implicated in both hegemonic and counterhegemonic projects. The next section examines human rights discourse in Doe v. Unocal legal mobilization by inquiring into the ways that Burmese grassroots activists understand such rights. In the process, it considers how this international human rights legal case may, or may not, reinforce hegemonic approaches to governance and the “rule of law” in the context of neoliberal globalization.

Building Morale Among the Politically Marginalized

When asked about the significance of Doe v. Unocal beyond its outcome for plaintiffs in the case, BADA's president emphasized the case's importance for the morale of the broader Burmese community, within and beyond Burma. He thought that the case not only showed the Burmese junta that the international community is monitoring its actions, but also communicated to Burmese civil society that people abroad care about what is happening there and are acting to change things. As he articulated it:

Another BADA activist who visited the Thai-Burma border in summer 2003 voiced similar thoughts, underscoring the potential of the Doe v. Unocal case to boost the morale of both Burmese and others facing daunting political circumstances. As he put it:

The importance of this case to the wider community of Burmese activists, refugees, and others is part of the full legacy of Doe v. Unocal. These activists speak to the ways in which the case is significant in nurturing rights consciousness, morale, and hope, especially among the politically marginalized.

Expanding Rights Consciousness to Articulate Local and Global Contexts

Beyond fostering general rights consciousness among activists and other Burmese, some activists spoke about the ways in which Doe v. Unocal encouraged awareness of corporate power and globalization politics. As one BADA activist related:

These remarks underscore the connections between Doe v. Unocal and debates about “development” around the world, in the context of neoliberal economic policy logics. In suing a U.S. corporation for alleged misdeeds in connection with a natural gas pipeline project, the case challenged the neoliberal idea that corporate conduct should be unregulated, as well as the contention that TNC investment in less developed countries necessarily leads to socially beneficial development. These connections between Doe v. Unocal and larger development debates were emphasized not only by activists, but also by organizations such as ERI, which understands earth rights to include “the right to participate in development decisions” (ERI 2003b:3). Again, the broader legacy of Doe v. Unocal includes the ways in which legal mobilization provided an avenue for diverse actors to elaborate their rights consciousness around these issues.

Leveraging Human Rights Discourse “From Below”

Regarding the ways in which the ATCA's human rights discourse figured into the understandings and practices of activists, all the Burmese activists I spoke with emphasized the importance of human rights discourse in their activism vis-à-vis the Burmese government as well as Unocal, and they talked about human rights as an integral part of their activism and political experiences. Many mentioned that they had first heard talk of “human rights” during the 1988 democracy uprising in Burma, when Aung San Suu Kyi and her party, the NLD, first rose to prominence. They said she and other leaders helped educate and mobilize people around human rights ideals, and many became aware of the UN's Declaration on Human Rights at that time. Some activists described that “coming out” period for human rights discourse in Burma as a kind of explosion, in comparison with the earlier period, saying,

One BAWA member said, “At that time [in 1988] I heard a lot of things about human rights. Before 1988 people suffered inside, but at that time it erupted” (Interview with H. H. W., 1 May 2004). And another activist related, “I was part of the student movement in 1988. I first heard of human rights at one of the Aung San Suu Kyi meetings in 1988 …. At the time teachers mentioned about very simple, very basic, very clear [human rights] so everyone can understand” (Interview with S. S. W., 1 May 2004). In other words, for the Burmese activists interviewed, human rights discourse functioned as a language for claims-making within and beyond Burmese society. Activists spoke about human rights discourse as a language they had first heard used by Burmese leaders. They saw it as a discourse through which to appeal to international institutions and activists, including diasporic Burmese activists, rather than as an idiom imposed on them or in conflict with their understanding of Burmese cultural values. They spoke of human rights discourse as a resource for mobilization, along the lines discussed by McCann, McAdam, and Sikkink.

Activists also spoke to critiques of human rights, including the view that human rights discourse may function as a neocolonial political tool or conflict with “Asian values.” In general, activists thought that this critique could too easily play into the hands of the Burmese junta or other authoritarian rulers rather than supporting ordinary citizens. As one BAWA member put it, “Sometimes the conflict comes … when it benefits an individual or some organization [to emphasize that conflict] … if you really think about what is right, I think there shouldn't be a conflict between human rights values and Burmese values” (Interview with Y. V., 17 April 2004). Meanwhile, another BADA member stated, “Human rights [do] not belong to a specific country, not to white people or Asian people …. Human rights do not have borders. The Asian countries need human rights, too. Human rights don't stop at borders” (Interview with Y. A., 6 November 2004). Speaking of the cynical cooptation of critiques of human rights, a BADA board member related that, “The spurious ‘Asian values’ debate had been fostered by Lee Kuan Yew [of Singapore], and Mahathir Mohamad [of Malaysia] …. It's an attempt to legitimate their own power structure, control the media, maintain economic and political domination” (Interview with R. D., 16 October 2004). He pointed out that Asian leaders could abuse human rights discourse and state power as well as Western political leaders, though on their own terms. In the case of Burma specifically, Burmese Lieutenant-General Thein Sein, First Secretary of the Burmese junta, has responded to criticisms of the governing junta by dismissing them as “instigation and interventions of tricky neo-colonialists who want to manipulate and dominate the nation” (“Myanmar people urged to safeguard independence, sovereignty,”New Light of Myanmar, 12 Nov. 2004, http://www.rebound88.net).

In addition, activists underscored the multifaceted, contested character of Burmese culture and society, comprising diverse actors with a range of values and practices. One BAWA founding member articulated such a view by saying,

She and other activists saw no inherent conflict between human rights and a purportedly distinct Burmese culture. As one BADA activist expressed his connection to human rights ideals, “When I advocate for freedom, for human rights, I also have that fundamental view that we are the same, we are in the same boat. Everybody needs to help. Everybody wants freedom. And we need to work together and that working together is the most important thing for the human rights activists, I think. Especially [given] the most important challenges we are facing now” (Interview with M. T., 14 October 2004).

Interviews with Burmese activists also suggested that human rights discourse may be empowering to grassroots activists from a range of backgrounds, including those whose educations come not through channels of privileged instruction, like law school, but through activism and struggle. Among the Burmese diasporic activists interviewed, all but two came to the United States after the Burmese government's repression of democratic activists in 1988, some as refugees seeking political asylum and others as professionals seeking better opportunities for themselves and their families.

These interviews do not dismiss critiques of human rights discourse and its potential complicity with hegemonic governance regimes—they only underscore the importance of context to evaluating the politics of human rights. The context examined here, in which transnational diasporic communities draw on human rights discourse to challenge a military regime that leans on critiques of human rights to legitimate repressive policies, suggests the need to temper overarching critiques that frame human rights only as a hegemonic discourse for perpetuating Western “civilizing processes” and neocolonial rule of law. These interviews also underscore the ways that human rights discourse may serve as a common vocabulary and strategic resource for activists and litigators in cases such as Doe v. Unocal (1997, 2000).

At the same time, while this research did not turn up the disconnects between human rights advocacy organizations and grassroots Burmese activists initially hypothesized, some differences did emerge in the emphases of activists and litigators in discussing human rights discourse and Doe v. Unocal. For example, whereas Burmese grassroots activists tended to speak of human rights discourse in the context of challenging the Burmese military regime, including but not limited to its exploitative collusions with corporations such as Unocal, the ILRF litigator saw the human rights frame as useful for avoiding the charge of “protectionism” often leveled against the labor movement. In addition, litigators focused on corporate accountability would emphasize the enforcement potential of ATCA litigation, in contrast to voluntary codes of corporate social responsibility, while grassroots activists never emphasized this point. Instead, several talked about the potential boomerang effects of Doe v. Unocal on the Burmese military regime, in the framework of sanctions. As one BADA activist spoke of the case, “This [is one] way of trying to make a dent in the sanctions sector. The Burmese government is afraid of sanctions. And we can say that if the Unocal case comes out against Unocal, then the Burmese government, since they are also involved, they would feel it very much” (Interview with V. W., 25 April 2004).

There were also differences between ERI and ILRF in terms of the relationship of Doe v. Unocal to their broader organizational work. ERI has from its inception been especially focused on Burma, rooted in Burmese activist networks and the Doe v. Unocal case, as well as a concept of “earth rights” that articulates with both state and corporate roles in development and natural resource exploitation processes. Meanwhile, ILRF emerged a decade earlier and framed its work around fighting for labor rights and corporate social responsibility without such a environmental, national, or development focus. Thus there seemed to be greater overlap in the understandings and strategies of Burmese grassroots activists and the work of ERI than in the work of ILRF.

Yet it is also important to note that these different emphases were of a piece with the multivalent legal and political context of Doe v. Unocal that, in the first place, facilitated opportunities for mobilization by disparate actors, including Burmese activists, corporate accountability activists, and human rights litigators. This multivalent context constituted an opening to challenge human rights abuses in Burma by both Unocal and the military regime in ways impossible through other avenues. So while there is a need for further studies of the power dynamics and conflicts within such legal mobilizations, the preponderance of data in this study of Doe v. Unocal underscores the significance of the case to grassroots Burmese human rights activists and indicates a constructive tactical alliance between activists and litigators, relative to the challenges and opportunities confronted.