Following a new law passed by the Nicaraguan Government to enable legal proceedings against multinationals which produced, distributed and used Nemagon/DBCP (Law 384), hundreds of workers began suing seven US-based companies - Dole, Shell, Castle and Cook, Chiquita Brands, Del Monte, Occidental Chemical Corporation, Dow Chemical Company - and two Israeli companies: Dead Sea Bromine and Bromine Compound Ltd.

Amid reports that the US government was pressuring Nicaragua to amend/suspend the new law, in October there was a 10,000-strong demonstration in Chinandega, in the banana-growing region. Then in November, about 2,500 farm workers walked the 85 miles from that city to Managua to protest the lack of progress in their lawsuit. The marchers went first to the US Embassy, presenting officials with a letter about alleged attempts of former U.S. Ambassador Oliver Garza to undermine Law 384. Embassy official Michael Stevens said that the only interest of the U.S. government was to establish an equal playing field between those who are suing and those being sued.

Then the protesters went to the house of deputies to encourage them not to overturn the law. In response, Roberto Gonzalez, chair of the Labour Committee, said "none of the 92 deputies have the remotest idea of changing even one comma of this law," and said that the affected banana workers "are giving us a lesson of bravery and dignity." The government also announced the formation of a high-level commission to support the workers' demands.

A couple of weeks later, on December 11th, 580 workers affected by Nemagon/DBCP won a court verdict in Managua, with Dow Agro Sciences, Shell and Standard Fruit (Dole), ordered to pay 490 million dollars in damages. There are more than 4000 other plaintiffs who are pursuing similar action. The problem for them is that the companies involved do not have significant assets, if any, in Nicaragua. The newspapers in Nicaragua are therefore reporting that the "battle" will have to move to the US. 22 The experience with such cases is mixed. One started in 1991 by Honduran workers against Dole eventually stalled, but the company then offered an out-of-court settlement. 23

Given the amount of time these processes take, and the real human costs of waiting around, various NGOs were increasing their support for victims and also ratcheting up their campaigning for companies to respond positively and swiftly. For example, the Associacion Italia Nicaragua has launched a Campaign called "No More Chemicals." 24

That substantive justice may only be located in the countries where sued corporations have assets, makes the Alien Tort Claims Act (ATCA) in the United States particularly important. Dating from 1789, this federal law promotes respect for basic human rights by holding government officials and corporations liable for wrongs committed against non-US citizens. The first ATCA human rights claims were brought against foreign government officials, although more recently, victims have filed suit against corporations alleged to be complicit in abuses.

One example is Doe v. Unocal, where Burmese villagers sued the California-based energy giant for complicity in abuses committed by the Burmese military. In September of 2002, a federal appeals court held that the plaintiffs had presented evidence that Unocal knowingly provided substantial assistance to the military in its commission of forced labour, murder and rape, while the military secured the project and built project infrastructure. In a similar case, Nigerian plaintiffs sued ChevronTexaco for complicity in the Nigerian military's human rights abuses associated with oil production in the Niger Delta. This case, ongoing at the time of writing, is based on two incidents: the shooting of protestors at ChevronTexaco's Parabe offshore platform by soldiers allegedly flown in by ChevronTexaco, and the destruction of two villages by soldiers allegedly in ChevronTexaco helicopters and boats.

Just as the potential of ACTA as a tool of corporate accountability is being realised, Earth Rights reported that anti-ATCA lobbying has begun. The National Foreign Trade Council (NFTC), a trade group of some of the largest multinational companies, is being supported by the International Chamber of Commerce (ICC), to lobby Congress to amend the law.

USA-Engage, the lobby arm of NFTC, "has established a working group to provide support for companies that have been sued [under ATCA] and to explore remedies to the abuse of the law." Earth Rights stated "it is no coincidence that the NFTC includes many of the corporations who are being sued. The NFTC's effort to "curb abuses" of the law is in fact an attempt by its members to avoid civil liability for wrongdoing." 25

The NFTC's new campaign follows previous corporate lobbying against the ACTA. A suit filed by the International Labor Rights Fund (ILRF) on behalf of eleven anonymous plaintiffs against ExxonMobil in a US Federal Court was questioned by the US State Department, after possible lobbying by the company. The suit held that the company was liable for the alleged abuses in the Aceh region of Indonesia because it provided "logistical and material" support to the military. Presumably having prior knowledge of the US State Department's reaction, ExxonMobil petitioned the presiding judge to solicit an opinion from the government about whether this suit would have an adverse effect on US foreign policy. The State Department argued that the Indonesian government would view the case as a referendum on the human rights record of the Indonesian armed forces, which would dissuade it from co-operating with the United States in counter-terrorism. According to Human Rights Watch and other groups, this raises questions about the Bush administration's commitment to corporate responsibility. 26 Meanwhile, new reports of human rights abuses in Indonesia, with possible corporate involvement, arose as 2002 drew to a close. 27

As the Nicaragua case illustrated, the inability of courts in various countries of the global South to deliver substantive justice to victims of corporate malpractice makes ACTA and similar provisions for Foreign Direct Liability (FDL) in other Western countries of importance to the global application of international standards. The ExxonMobil case and the lobbying by NFTC and the ICC may add to the increasing criticism of corporate lobbying, and increased focus on the political responsibilities of companies aspiring to be corporate citizens.

contents © jem bendell, 2002. site design by tim concannon. hosting by futureconsiderations.com.