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INDIANS AND INDIOS: ECHOES OF

THE BHOPAL DISASTER IN THE


ACHUAR PEOPLE OF PERUS
STRUGGLE AGAINST THE TOXIC
LEGACY OF OCCIDENTAL
PETROLEUM

ALLISON M. DUSSIAS*

Finding a balance between the increasing demand for energy and


preserving the environment is a challenge not taken lightly at
Occidental. We adhere to the highest safety standards in our
operations and abide by a stringent code of ethics in all manner
of business. . . . Our development methods are designed to
reduce the impact of our operations in areas in which we work.
1
Occidental Petroleum Corporation

[Oxy] said there wasnt anything wrong, that the river and the
animals and fish were fine. . . . Oxy said, were just extracting
petroleum, were not contaminating. And so we got no support
from Oxy. . . . How am I going to survive? Where am I going to
hunt? I want help. How am I going to raise my children?
2
Achuar Man, Antioqua, Peru
The tragedy, and travesty of justice, at Bhopal raise important

* Professor of Law, New England School of Law. J.D., University of Michigan, 1987;
A.B., Georgetown University, 1984.
1. Occidental Petroleum Corporation, Social Responsibility, Environmental Measures,
http://www.oxy.com/Social%20Responsibility/environment/ENVIRONMENT.htm (last
visited Apr. 23, 2008).
2. EARTHRIGHTS INTERNATIONAL ET AL., A LEGACY OF HARM: OCCIDENTAL
PETROLEUM IN INDIGENOUS TERRITORY IN THE PERUVIAN AMAZON 1 (2007), available at
http://www.earthrights.org/files/Reports/A_Legacy_of_Harm.pdf [hereinafter A LEGACY OF
HARM].

101
102 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

questions about the accountability of corporations for actions that cause


serious harm to the environment and to the human and other living beings
who depend upon it for survival. More specifically, the Bhopal incident
brings to the fore the question of the availability of legal redress for the
most vulnerable members of a societythe poor, the uneducated, the
disenfranchised, the unrepresented, the marginalizedwho have been
directly affected by the harmful corporate actions. It remains to be seen
whether litigation in U.S. courts, discussed elsewhere in this symposium
issue,3 will ultimately provide some greater measure of justice to surviving
human victims of Bhopal, who continue to suffer from the lingering effects
of the environmental degradation caused by Union Carbides Bhopal
operations.
While the remaining claims brought by residents of Bhopal in U.S.
courts were being litigated in the federal judicial system, 4 another case
involving environmental degradation caused by the overseas operations of
a U.S. corporation was being prepared for filing in the judicial system of
the State of California. In May, 2007, members of several Peruvian
communities of Achuar, an indigenous people of Peru and Ecuador,
traveled to California to file a lawsuit against a U.S.-based corporation,
Occidental Petroleum Corporation. The plaintiffs sought to hold Occidental
accountable for the contamination of the soil and waterways of their land
that resulted from Occidentals thirty years of oil extraction activities in the
Corrientes River Basin of the northeastern Peruvian Amazon.5 The
plaintiffs claim that Occidental knowingly engaged in destructive
practices which severely contaminated unique and sensitive ecosystems
and caused profound impacts upon the rights and health of the communities
living there.6 Among the specific claims included in the Achuar complaint
were claims for wrongful death, negligence, battery, trespass, fraud, and
public and private nuisance, as well as a claim of violation of Californias
Business and Professions Code.7
At first glance, the Bhopal plaintiffs and the Achuar plaintiffs and
their experiences may seem wholly unrelated, aside from the legally
insignificant fact that the Bhopal victims are Indians, and the indigenous
peoples of the Americas were denominated Indians, or Indios, by
confused European explorers several centuries ago. The incidents from

3. See Sheila Jasanoff, Bhopals Trials of Knowledge and Ignorance, 42 NEW ENG. L.
REV. INSERT PAGE NUMBER (2008).
4. See id.
5. Peru: Achuar Indigenous Community Sues Occidental Petroleum for Decades of
Contamination, NOTISUR S. AM. POL. AND ECON. AFF., June 22, 2007, available at 2007
WLNR 17089353.
6. A LEGACY OF HARM, supra note 2, at 8.
7. See Peru: Achuar Indigenous Community Sues Occidental Petroleum for Decades of
Contamination, supra note 5.
2008] THE ACHUAR AND OCCIDENTAL 103

which their claims arose occurred thousands of miles away from each
other. The U.S.-based litigation arising from the activities of Union Carbide
Corporation (UCC) at Bhopal were brought in federal court, based on
both federal and state law, while the Achuar claim was filed in state court
and solely alleged violations of state law. The Bhopal incident and the
degradation resulting from UCCs operations at Bhopal occurred in a
developed metropolitan area, while Occidental conducted its damaging
operations, and its successor continues to conduct those operations, in an
extremely remote rural area. UCCs Bhopal operations involved
manufacturing activities, while Occidentals operations in Achuar territory
involved primarily extractive activities. Bhopal involved a single
catastrophic event (although environmental contamination continues to be a
serious problem at the closed site and surrounding area), while the Achuar
situation involves ongoing damage from extended, regular operations that
continue to this day. Bhopals victims experienced the catastrophe and its
aftermath as part of Indias dominant society, albeit as members of that
society with a low socioeconomic status, while the victims of Occidentals
operations in northeastern Peru have experienced the impacts of
Occidentals operations as members of indigenous communities, existing,
in a remote area, at the fringes of Perus dominant society and still
speaking their native language.8 In short, in a number of ways, Union
Carbides victims in Bhopal and Occidental Petroleums victims in the
Achuar lands seem worlds apart.
Just below the surface-level differences, however, there are a number
of similarities between the experiences and claims of the people of Bhopal
and those of the Peruvian Achuar communities. The aim of this Article is to
identify some of these similarities, as well as the differences, and offer
some thoughts on how the lessons of Bhopallessons that seemingly have
not been learnedare relevant to the experiences and claims of the Achuar
people. Part I of the Article discusses the Achuar and their place, along
with the place of other indigenous peoples, within Perus laws and political
system. Part II discusses the efforts to document the adverse impacts of

8. See The Achuar of the Peruvian Amazon, Culture and Customs, The Achuar
Language, http://www.achuarperu.org/en/40culture_and_customs/language.htm (last visited
Apr. 23, 2008) (noting that the Achuar language was first written down in 1976 and is
taught, along with Spanish, in the schools of the Achuar communities). Although members
of various tribal peoples make up about 20% of the population of the Indian state of Madhya
Pradesh, in which Bhopal is located, their lands and communities were not the focus of the
injurious corporate operations, as was the case with Occidental and the Achuar. See
Government of Madhya Pradesh, Scheduled Castes and Scheduled Tribe Welfare
Department, Commissioner Tribal Development, General Information,
http://www.mp.gov.in/tribal/ (follow Commissioner Tribal Development hyperlink; then
follow Statistics hyperlink) (last visited Apr. 23, 2008) (indicating that 20.27% of the
citizens of the state are members of so-called Scheduled Tribes).
104 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

Occidentals operations on the Achuar and the claim brought against


Occidental in California state court. Part III offers observations on the
similarities and differences between the experiences and claims of the
Bhopal and Achuar plaintiffs. The Conclusion offers some final thoughts
on the struggle of the Achuar to hold Occidental accountable for the
damage done to their communities and their territory.

I. PERU, INDIGENOUS PEOPLES RIGHTS, AND THE ACHUAR


[To] [t]he Achuar people, territory is sacred. It is the foundation of
human life and the means of support of all beings that are part of
nature . . . .9

A. Perus Indigenous Peoples and Their Status Under Peruvian Law


A 1993 census of the population of Peru concluded that close to nine
million indigenous people live in Peru.10 The great majority of the members
of Perus indigenous peoples are Quechua, with about 7% being Aymara
and 2% belonging to peoples, like the Achuar, that live in the Amazon
jungle.11 According to more recent estimates, about 45% of Perus
population is indigenous, with about 15% of the population being of
European descent and most of the rest of the population being of mestizo
(mixed-race) ancestry.12
Most of the indigenous people of Peru live in the Highland Andean
regions of the country.13 As is the case with indigenous peoples around the
world, Perus indigenous peoples are the poorest segment of the population
and earn their living through difficult work, such as agricultural and heavy
industrial labor.14 Many suffer from serious health problems stemming
from lack of access to clean water and inadequate sanitation facilities.15 A
high rate of illiteracy16 also serves as an obstacle to improvement in their
lives and prospects.
Spanish colonial administrators recognized the pre-colonial social
units of the Andean indigenous peoples, the ayllus, and protected the

9. The Achuar of the Peruvian Amazon, About the Achuar, http://www.achuarperu.org


/en/20achuar_people/ (last visited Apr. 23, 2008) (emphasis added).
10. Milagros Salazar, PERU: Indigenous People Ignored by Statistics Too, TERRAVIVA
EUROPE, Oct. 11, 2006, available at http://www.ipsterraviva.net/Europe/
article.aspx?id=3918.
11. Id.
12. Id.
13. Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative
and International Legal Analysis, 12 HARV. HUM. RTS. J. 57, 82 (1999).
14. Id.
15. Id.
16. Id.
2008] THE ACHUAR AND OCCIDENTAL 105

borders of their communities.17 Following independence, the government


of Peru rejected this policy and sold many indigenous lands, but the
Peruvian Constitutions of 1920, 1933, and 1980 restored some protection to
communal lands.18
The current Political Constitution of Peru provides, in Article 89, that
rural and native communities have legal existence and are juridical persons;
are autonomous in their organization and in the use and disposition of their
lands; and enjoy ownership of their lands which is imprescriptible (i.e., not
subject to prescription).19 The State is also committed to respecting the
cultural identity of rural and native communities.20 Another provision,
Article 149, provides that the authorities of indigenous communities can
exercise jurisdictional functions within their territory, in conformity with
individuals fundamental rights, and that the law will establish the form of
coordination of this jurisdiction with the Peruvian judicial system.21 Article

17. Id. at 82-83. The communities were called pueblos de reduccin. See id. at 83.
18. See id. at 83.
19. Constitucion Poltica del Per art. 89, available at http://pdba.georgetown.edu/
Constitutions/Peru/per93reforms05.html (last visited Apr. 23, 2008) [hereinafter
Constitution of Peru]. Article 89 provides in full as follows:
Las Comunidades Campesinas y las Nativas tienen existencia legal y
son personas jurdicas. Son autnomas en su organizacin, en el trabajo
comunal y en el uso y la libre disposicin de sus tierras, as como en lo
econmico y administrativo, dentro del marco que la ley establece. La
propiedad de sus tierras es imprescriptible, salvo en el caso de abandono
. . . . El Estado respeta la identidad cultural de las Comunidades
Campesinas y Nativas.
[Rural, i.e., peasant, and native communities have a legal identity and are legal entities.
They are autonomous in their organization, communal work, and the use and free disposal
of their lands, as well as in economic and administrative terms, within the framework
established by the law. Ownership of their lands is not subject to prescription, except in the
case of abandonment . . . . The State will respect the cultural identity of rural and native
communities]. Id.
20. Id.
21. Article 149 provides as follows:
Las autoridades de las Comunidades Campesinas y Nativas, con el
apoyo de las Rondas Campesinas, pueden ejercer las funciones
jurisdiccionales dentro de su mbito territorial de conformidad con el
derecho consuetudinario, siempre que no violen los derechos
fundamentales de la persona. La ley establece las formas de
coordinacin de dicha jurisdiccin especial con los Juzgados de Paz y
con las dems instancias del Poder Judicial.
[The authorities of rural, i.e., peasant, and native communities, with the support of rural
councils, may exercise the jurisdictional functions within their territorial sphere in
accordance with customary law, provided that they do not violate the fundamental rights of
individuals. The law establishes the form of coordination of this special jurisdiction with the
Justices of the Peace and other instances of the judicial power]. Id.
106 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

2, paragraph 19, provides that the State recognizes and protects the ethnic
and cultural pluralism of the Nation and that Peruvians have the right to use
their own language in dealing with the authorities, through an interpreter.22
Bilingual and intercultural education, and the preservation of the diverse
cultural and linguistic manifestations of the country, are also provided for.23
Spanish is the official language of Peru, but Quechua, Aymara, and other
indigenous languages are also to be given this status, in the areas in which
they are predominant.24 Indigenous Peruvians, like all Peruvians, are also
entitled to equal treatment before the law and freedom from discrimination
on the basis of origin, race, or language.25
In addition to these constitutional provisions, Peruvian law also
provides for an executive branch entity that is intended to support Perus
indigenous peoples. In 2001, a Presidential Decree established the National
Commission of Andean, Amazonian, and Afro-Peruvian Peoples
(CONAPA), which was attached to the Office of the President of the
Council of Ministers.26 CONAPA was given the function of approving,
planning, promoting, coordinating, directing, supervising and evaluating
policies, programmes and projects for the populations concerned.27
CONAPA has been replaced recently by the National Institute for the
Development of Andean, Amazonian, and Afro-Peruvian Peoples (Instituto
Nacional de Desarrollo de Pueblos Andinos, Amazonicos y Afroperuanos,
INDEPA).28
Peruvian law thus purports to provide some recognition and
protection of the rights of indigenous peoples. The experiences of the
Achuar of the Corrientes Basin raise serious questions, however, as to the
legal significance and effectiveness of this purported recognition and
protection.
The U.S. State Department has recognized the gap between

22. Id. art. 2, para. 19.


23. Id. art. 17.
24. Id. art. 48.
25. Id. art. 2, para. 2.
26. See INTL LABOUR ORG., COMMITTEE OF EXPERTS ON THE APPLICATION OF
CONVENTIONS AND RECOMMENDATIONS, INDIVIDUAL OBSERVATION CONCERNING
INDIGENOUS AND TRIBAL PEOPLES CONVENTION, 1989 (No. 169), Peru (2006) [hereinafter
ILO CEACR 2006 Peru Observation], available at
http://www.ilo.org/ilolex/english/iloquery.htm (search Committee of Experts
Observations database by entering the number 169 and the country Peru, follow the
hyperlink for 2006 published Observations) (citing Presidential Decree No. 111-2001-
PCM).
27. Id.
28. Lisa Garrigues, Where Are the Indigenous Movements in Peru?, INDIAN COUNTRY
TODAY, May 22, 2006, available at http://www.indiancountry.com/
content.cfm?id=1096413031.
2008] THE ACHUAR AND OCCIDENTAL 107

constitutional and other legal promises and the reality of life for Perus
indigenous peoples. The State Departments 2004 Country Report on
Human Rights Practices in Peru, for example, noted that although Perus
Constitution prohibits discrimination based on race and provides for the
right of all citizens to speak their native language[,] . . . the large
population of indigenous people faced pervasive societal discrimination
and prejudice.29 The Report noted that [m]any factors impeded their
ability to participate in, and facilitated their deliberate exclusion from,
decision-making directly affecting their lands, culture, traditions, and the
allocation of natural resources, including [p]oor transportation, language
barriers, . . . inadequate communications infrastructure in the highlands and
in the Amazon jungle region . . . [and] [t]he geographic isolation of much
of the indigenous population . . . .30 UNICEF statistics mentioned in the
Report indicated that indigenous people in rural areas did not have equal
access to public services, particularly health and education: 90 percent
lived in poverty; only 39 percent completed primary school; and there were
higher child and maternal mortality in indigenous areas, where only 20
percent of births took place in public health centers.31
The 2004 Country Report highlighted the difficult situation of the
200,000 to 300,000 members of the indigenous groups of the Amazon
region with respect to land rights. The Report explained that:
[M]ost of the indigenous communities had a spiritual
relationship with their land, and the concept of land as a
marketable commodity was alien to them. Nevertheless,
according to the director of the Human Rights Ombudsmans
Native Communities Program, the only right still statutorily set
aside for this indigenous population with respect to its land is
that of unassignability, which prevents the title to such lands
from being reassigned to some non-indigenous tenant by right of
32
tenure.
Encroachment on indigenous lands still occurs.33 Indigenous land
rights are further weakened by the fact that many groups lack title to the
land on which they live.34 Moreover, even those groups with title are
subject to limitations on their property rights: title to land does not include
mineral or other subsoil rights, which[, under the Constitution of Peru,]

29. U.S. DEPT OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR,
COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES - 2004, Peru (2005), available at
http://www.state.gov/g/drl/rls/hrrpt/2004/41771.htm [hereinafter 2004 COUNTRY REPORT].
30. Id.
31. Id.
32. Id.
33. See id.
34. See id.
108 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

belong to the State[, which results in] . . . conflicts between mining


interests and indigenous communities.35 The most recent Country Report
on Peru (2007) reiterates the particular concern for indigenous groups of
the Amazon region and their land rights, observing that despite the
unassignability principle, in practice the marketing and sale of the lands
took place.36
Concern about Perus practices toward indigenous peoples have been
raised by international bodies as well, such as the International Labor
Organization (ILO). The ILOs Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries (Convention No.
169), adopted in 1989 and in effect since 1991,37 establishes a system of
special protections for indigenous groups and mechanisms of consultation
with indigenous people on laws, productive projects and policies that affect
them and the areas where they live.38 Among the rights of indigenous
peoples that are protected are the right to ownership and possession of
lands that they traditionally occupy, which governments are to identify and
protect (Article 14),39 and the right to participate in the use, management,
and conservation of the natural resources pertaining to their lands (Article
15(1)). If the State retains ownership of mineral or sub-surface resources or
rights to other land-related resources, then the government is to maintain
procedures through which the indigenous people whose lands would be
affected are consulted, with a view to ascertaining whether and to what
degree their interests would be prejudiced, before undertaking or permitting
any programmes for the exploration or exploitation of such resources
pertaining to their lands.40 Moreover, the indigenous people in question
are to participate in the benefits of such activities, and shall receive fair

35. 2004 COUNTRY REPORT, supra note 29.


36. U.S. DEPT OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR,
COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES - 2007, Peru (2008), available at
http://www.state.gov/g/drl/rls/hrrpt/2007/100650.htm [hereinafter 2007 COUNTRY REPORT].
37. Intl Labour Org. Convention (No. 169) Concerning Indigenous and Tribal Peoples
in Independent Countries, June 27, 1989, 28 I.L.M. 1382 [hereinafter ILO Convention No.
169]; Salazar, supra note 10.
38. Salazar, supra note 10.
39. ILO Convention No. 169, supra note 37, art. 14(1). Paragraph 1 provides as follows:
The rights of ownership and possession of the peoples concerned over
the lands which they traditionally occupy shall be recognised. In
addition, measures shall be taken in appropriate cases to safeguard the
right of the peoples concerned to use lands not exclusively occupied by
them, but to which they have traditionally had access for their
subsistence and traditional activities. Particular attention shall be paid to
the situation of nomadic peoples and shifting cultivators in this respect.
Id.
40. Id. art. 15(2).
2008] THE ACHUAR AND OCCIDENTAL 109

compensation for any damages which they may sustain as a result of such
activities.41 Peru ratified Convention No. 169 in 1994,42 but has never
made public the periodic compliance reports that it, like other ratifying
countries, submits to the ILO.43 Critics have pointed to Perus failure in this
regard as evidence of its lack of transparency, which, in 2006, prompted
close to twenty human rights organizations and indigenous communities to
draft an alternative report on Perus compliance, which was submitted to
the ILO. The alternative report was intended to contrast the [Peruvian]
governments version of reality with that of civil society before the ILO
issues its recommendations.44 The alternative report highlighted the failure
of the latest national census (2005) to reflect Perus true ethnic and
multicultural composition, which makes it difficult to adopt public policies
in favor of indigenous peoples.45
The alternative report also faulted the government for favoring
mining and oil extraction by private companies over the conservation of a
healthy environment for indigenous communities and respect for their
ancestral territories,46 and offered the struggle of Achuar against
Occidental Petroleum as an illustration. The report alleged that over fifty
percent of the 8000 indigenous people who live in the northern jungle
region of the country have been affected by oil companies activities and
cited a Peruvian Health Ministry study published in May 2006, confirming
the finding of cadmium and lead above acceptable limits in local residents
bloodstreams.47 In addition to highlighting the adverse health effects from
cadmium and lead exposure, the report noted that petroleum residues that
pollute the rivers can destroy algae and microorganisms that fish consume
and that people who bathe in the rivers suffer from skin problems.48
The lack of protection for indigenous peoples and the environment
does not stop with the Achuar and oil companies, however, given that there
are 850 mines in Peru, most of which are located in indigenous areas. The
report noted that mining sector authorities claim that environmental
damage caused by the mines occurred prior to 1993, before Peru beefed up
its environmental legislation.49 Even this legislation, however, fails to
guarantee that companies respect the environment, because the

41. Id.
42. Intl Labour Org., ILOLEX, (2008), http://www.ilo.org/ilolex/cgi-lex/
ratifce.pl?C169.
43. See Salazar, supra note 10.
44. Id.
45. See id.
46. Id.
47. Id.
48. Id.
49. Salazar, supra note 10.
110 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

requirements fall short of international standards, and local communities


are not informed and consulted prior to the granting of concessions and
approval of projects on their land, as stipulated by law.50
Similar concerns over the lack of protection of indigenous peoples
and their lands have been voiced from within the Peruvian government. In
2006, for example, Carlos Cnepa, the chairman of the Peruvian legislative
commission on the Amazon region and indigenous affairs, told journalists
that [t]he state has the obligation to respect indigenous peoples, their
cultural identity, world view and right to their ancestral territory. The
government cannot take unilateral decisions. . . .51 Cnepa was part of a
congressional commission that traveled in 2006 to one of the areas along
the Corrientes River where Occidentals successor Pluspetrol Norte was
operating, and returned convinced that there is pollution in the area, and
that the Achuar are in a state of utter neglect, with no protection from the
state.52 Cnepa pledged to revive the debate on a draft General Law on
Indigenous Peoples and to try to have provisions consistent with
Convention No. 169 included in the bill.53 Peru has to date failed to enact a
comprehensive statute on the rights of indigenous peoples, although
Cnepa has continued his support for legislation to protect the rights of
Peruvian indigenous peoples by backing legislation that would elevate the
recently adopted U.N. Declaration on the Rights of Indigenous Peoples to
the status of law.54
Meanwhile, on the international stage, Peru appears as a supporter of
the rights of indigenous peoples. It was the Peruvian representative, Luis
Enrique Chavez Basagoitia, who introduced the text of the U.N.
Declaration on the Rights of Indigenous Peoples before the U.N. General
Assembly on September 13, 2007, where it was adopted by a recorded vote
of 143 in favor (including Peru) to 4 against (Australia, the United States,
New Zealand, and Canada).55

50. Id.
51. Id. (quoting Carlos Cnepa).
52. Id. (quoting Carlos Cnepa); see Lisa Garrigues, Achuar Win Oil Victory in Peru,
INDIAN COUNTRY TODAY, Nov. 6, 2006 (indicating that Pluspetrol Norte is Occidentals
successor).
53. Id.
54. See Proyecto de Ley, 01912, Elevese a Rango de Ley la Declaracin de las
Naciones Unidas sobre los Derechos Humanos de los Pueblos Indgenas [Elevate to the
Status of Law the Declaration of the United Nations on the Human Rights of Indigenous
Peoples] (Nov. 27, 2007), available at http://www.2.congreso.gob.pe/Sicr/
Congresistas/2006/20060473.nsf (follow Primera Legislatura Ordinario 2007 hyperlink;
then follow 01912 hyperlink; then follow texta de la initiativa hyperlink).
55. See Press Release, General Assembly, General Assembly Adopts Declaration on
Rights of Indigenous Peoples; Major Step Forward Towards Human Rights for All, Says
President, U.N. Doc. GA/10612 (Sept. 13, 2007), available at http://www.un.org/
2008] THE ACHUAR AND OCCIDENTAL 111

In short, Peruvian law provides a number of laudable protections for


indigenous peoples. Peru has also acknowledged the rights of indigenous
peoples around the world through its support for ILO Convention No. 169
and the U.N. Declaration on the Rights of Indigenous Peoples. Observers
within Peru and abroad have recognized, however, the existence of a
considerable gap between recognition of rights on paper and actual
protection of rights in practice. It is on this gap that Occidental Petroleum
Corporation was able to capitalize in its operations in the lands of the
Achuar of northeastern Peru.

B. The Achuar of the Northeastern Peruvian Amazon


The Achuar live along the Pastaza, Huasaga, Huitoyacu, Morona, and
Corrientes Rivers in the Loreto department (state) in the Amazon region of
northeastern Peru.56 The Achuar people have lived in this part of Peru, as
well as across the border in eastern Ecuador, for thousands of years.57
Beginning in 1947, the Peruvian government encouraged settlement by
mestizos (Peruvians of mixed indigenous and European ancestry) in the
Amazon region, where they engaged in intensive agriculture, logging, and
exploitation of mineral resources. The building of roads, airports, and other
infrastructure caused extensive deforestation in the affected areas, but even
into the 1970s the Achuar themselves were relatively unaffected by this
new colonial enterprise.58
There are about 12,500 Peruvian Achuar, living in over 77 ancestral
communities.59 For generations, their subsistence has been largely based on
hunting, fishing, gathering, raising fowl, and agriculture. Agricultural
pursuits are largely the province of women, who grow manioc, fruits,
medicinal plants, tobacco, and plants used for making clothing in home
gardens, and also raise staple crops, such as manioc, taro, yams, beans,
peanuts, plantains, and certain fruits, in lowland plots, typically near a
river.60 Men work as the hunters and fishermen of the communities.61 The
Achuar have customarily relied upon local healers, who use rainforest
plants for pain relief, contraception, cure of common ailments, and other

News/Press/docs/2007/ga10612.doc.htm. There were also 11 abstentions. Id.


56. Achuar People, http://www.achuarperu.org/en/20achuar_people/ (follow The
Communities hyperlink) (last visited Apr. 23, 2008); id. (follow Territory hyperlink)
(last visited Mar. 24, 2008).
57. A LEGACY OF HARM, supra note 2, at 11.
58. Id.
59. Achuar People, http://www.achuarperu.org/en/20achuar_people/ (follow The
Communities hyperlink) (last visited Apr. 23, 2008).
60. A LEGACY OF HARM, supra note 2, at 11. The Achuar engage in shifting agriculture,
relocating to more fertile fields after the soil in their current fields becomes depleted. Id.
61. Id.
112 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

purposes, for their medical care.62


In their various subsistence activities, the Achuar depend upon the
rivers of their territory, which are needed for drinking, bathing, cooking,
washing, crop irrigation, and transport.63 The territory is characterized by a
network of rivers and streams, separated by hills. In normal conditions, the
vegetation in the forests is dense, with closely spaced large trees that have
broad, leafy crowns. Another landscape feature, palm tree-covered,
permanently flooded swamps, provides an important source of fruit for the
Achuar, as well as providing a habitat for tapirs, capybaras, and peccaries.64
Because their existence has been so intimately related to the natural
environment, the Achuar have had to maintain an environmentally friendly
lifestyle.65
The Achuar territory is remote and is not reachable by road. General
access is by the rivers, but some communities are accessible only by small
canoes during much of the year, and the journey by boat takes at least
twenty-four hours from the nearest major airport.66 Air access exists only
for chartered small planes and helicopters that can land at oil company
facilities, which are the areas only industrial facilities.67
The Achuar have little access to cash and do not participate in Perus
cash economy. Despite the riches reaped by foreign corporations and the
Peruvian government from the sale of petroleum extracted from Achuar
lands, the population of the region lives well below Perus national poverty
line of $64 per month.68
The traditional leaders of the Achuar communities are the Apus.
Major decisions are made by consensus by the entire community, which
meets in periodic assemblies, in which all members are entitled to
participate.69 Beyond their own communities, the Achuar participate in, and
pursue their objectives as a people through, three local organizations,
known by the acronyms ATI, FECONACO, and ORACH. ATI (Achuarti
Iruntramu, meaning the Achuar who are meeting) consists of eighteen

62. Id.
63. Id.
64. Id. at 13.
65. Id. at 11.
66. See Class Action Complaint for Damages, Injunctive and Declatory Relief,
Restitution and Disgorgement of Profits at 5, Tomas Maynas Carijano et al. v. Occidental
Petroleum Corp., No. BC370828 (Cal. Super. Ct. L.A. May 19, 2007), available at
http://www.sdshh.com/pdfs/Achuar_COMPLAINT_001.pdf?sid=ST2008013100037
[hereinafter the Achuar Complaint]. Even that airport, at Iquitos, is not accessible by
road from any other major city. Id.
67. See id.
68. A LEGACY OF HARM, supra note 2, at 12.
69. Id.
2008] THE ACHUAR AND OCCIDENTAL 113

communities on the Huituyacu, Manchari, and Huasaga Rivers.70


FECONACO [(Federation of Native Communities of the Corrientes
River)] represents three indigenous peoplesthe Achuar, Kichwa, and
Uraninasin a total of 30 indigenous communities.71 Finally, ORACH
(Achuar Chayat Organization) represents Achuar communities along the
Huasaga River.72 In addition, the Achuar participate in two national
organizations: the Federation of the Achuar Nationality of Peru (Federacin
de la Nacionalidad Achuar del Per, known as FENAP), which was
established to bring together all the Achuar organizations in Peru, and the
Bi-national Coordinating Committee of the Achuar Nationality of Ecuador
and Peru (Coordinadora Binacional de Nacionalidad Achuar del Ecuador y
Per, known as COBNAEP), which was created to coordinate the
activities of the Achuar people in Peru and Ecuador.73 The Achuar have
worked together in these larger organizations to try to defend their
territories, resources, cultures, and human rights from appropriation and
exploitation by outsiders, such as Occidental Petroleum. In this struggle,
they have been assisted in recent years by non-governmental organizations,
based both in Peru and abroad. The Achuar teamed up with members of
three groups, EarthRights International (EarthRights) from the United
States, Racimos de Ungurahui of Peru, and Amazon Watch from the United
States, in their efforts to seek redress for the damage in their communities
that they have attributed to the operations of Occidental.

II. DOCUMENTING THE HARMS AND DEMANDING REDRESS

Before Oxy, it wasnt like this. The river was beautiful. The
birds and other animals all lived very close. My grandparents
lived here, and I grew up here as my father did. Before, it wasnt
like this. The river was beautiful. There were animals along the
74
riverbank that we hunted. Now there are no animals.

70. Los Achuar de la Amazonia Peruana, ATI Organization (July 20, 2006), http://www.
achuarperu.org/en/10organization/ATI.htm.
71. Los Achuar de la Amazonia Peruana, FECONACO Organization (July 19, 2006),
http://www.achuarperu.org/en/10organization/FECONACO.htm.
72. Los Achuar de la Amazonia Peruana, ORACH Organization (July 20, 2006),
http://www.achuarperu.org/en/10organization/ORACH.htm.
73. Los Achuar de la Amazonia Peruana, COBNAEP Organization (July 19, 2006),
http://www.achuarperu.org/en/10organization/COBNEAP.htm (describing COBNAEP); see
Los Achuar de la Amazonia Peruana, FENAP Organization (July 20, 2006),
http://www.achuarperu.org/en/10organization/FENAP.htm (describing FENAP).
74. A LEGACY OF HARM, supra note 2, at 12.
114 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

A. Identifying a Legacy of Harm: Documenting the Impacts of


Occidentals Operations
EarthRights became involved in the suit against Occidental after
FECONACO asked the organization, in March 2006, to investigate the
social, environmental, and human rights impacts of Occidentals
operations. The fact-finding mission took place from May 14-23, 2006, and
was conducted by a team that included three attorneys (one from Peru and
two from the United States), a doctor and nurse who were community
medicine specialists, an agronomist, an environmental engineer, a chemist,
and two interviewer-interpreters. Racimos de Ungurahui and Amazon
Watch collaborated with EarthRights on the mission.75
The team visited five Achuar communities in and downriver from
Block 1AB, the oil concession in which Occidental operated. Team
activities included the following:
meeting with a community assembly in each community;

interviewing more than sixty individuals about Occidentals


operations;

taking medical histories and performing diagnostic medical


examinations, including blood tests for lead concentrations (with
the consent of the participants);

analyzing water and sediment samples; and


76
inspecting several past and ongoing areas of oil production.
EarthRights compiled the missions findings in a report entitled A
Legacy of Harm, which was released in 2007. The report summarized the
impacts of Occidentals activities in the region and provided a legal
analysis showing how Occidentals cost-cutting and deliberate use of
substandard technology exposes it to civil demands from the Achuar, both
in Peru and the United States.77
The reports key findings, based on the teams investigations, and on
testimonies of individuals with first-hand experience, Peruvian
government reports, and historical, anthropological, and scientific
publications,78 were as follows:

75. Id. at 7.
76. Id.
77. Press Release, EarthRights International, New Report Exposes Occidental
Petroleums Legacy of Harm in the Peruvian Amazon (May 3, 2007), available at
http://www.earthrights.org/feature/a_legacy_of_harm.html; see A LEGACY OF HARM, supra
note 2, at 9, 43.
78. A LEGACY OF HARM, supra note 2, at 8.
2008] THE ACHUAR AND OCCIDENTAL 115

during its thirty years of operations in the Corrientes River


basin, Occidental knowingly utilized out-of-date practices and
methods that were long outlawed in the United States and in
violation of Peruvian law, which resulted in the discharge of
about 9 billion barrels of toxic oil byproducts into the areas
waterways;

Occidental stored crude oil and byproducts in open, unlined


earthen pits, the contents of which routinely overflowed and
leached into the ground and waters;

children and adults were found to have high concentrations of


lead and cadmium in their blood, and contamination from oil
production was the only likely cause;

contamination caused by accidental spills and routine


dumping of toxic byproducts had resulted in declines in fish and
game populations and in agricultural productivity;

Occidentals practices violated Achuar rights under


international law and violated Peruvian law, which incorporates
relevant international law rights and provides for specific
environmental protections; and

Occidentals disregard for the law and for the Achuars well-
being could subject it to legal liability in the U.S. as well as in
79
Peru.
The report concluded that Occidental has displayed a gross
disrespect for the role of corporate citizenship, the needs of local
communities, and the ecosystems on which they have traditionally relied
for their survival. . . . [I]t is imperative that [Occidental] assume its
responsibilities under the law of the U.S., Peru, and international
conventions and treaties.80 The report left the last word to a woman from
the Achuar community of Jos Alaya:
Oxy has contaminated our territory and it should pay. Oxy
should not be able to say it has not contaminated us. All of these
injuries that they have caused they should pay us for this.
Before Oxy came, everyone grew up healthy; I grew up before
Oxy [arrived here] and the area was clean. But now our children
are skinny; we used to feed them well, but now with this

79. Id. at 8-9. The findings also indicated that Pluspetrol had continued Occidentals
practices and that Perus National Office of Resource Evaluation had declared Block 1AB to
be Perus most damaged environmental region. Id. at 9.
80. Id. at 45.
116 NEW ENGLAND LAW REVIEW [Vol. 42:nnn
81
contamination, you cannot bring up healthy children.
The sentiment expressed by this woman, that Occidental caused so
much damage and should be required to admit what it had done and
provide redress to those who had suffered, and were still suffering, the
adverse effects of its decisions to violate the law, prompted members of the
affected Achuar communities and EarthRights to initiate the current U.S.
litigation against Occidental.

B. Trying to Redress the Legacy of Harm: The U.S. Legal Claims


Against Occidental
The Achuar class action complaint was filed in California Superior
Court for Los Angeles County on May 1, 2007.82 The complaint alleged
that Occidental Petroleum Corporation, a Delaware corporation
headquartered in California, and its subsidiary Occidental Peruana, Inc., a
California corporation (referred to collectively as Oxy), [i]n . . .
unchecked effort[s] to profit from Amazonian oil, . . . engaged in
irresponsible, reckless, immoral and illegal practices in and around the
ancestral and current territory of the Achuar indigenous people.83 The
practices used by Oxy were below accepted industry standards . . . [and
were] prohibited by law.84 Moreover, Oxy knew that the practices would
cause severe contamination of water and land and that this contamination
would cause and has caused severe health problems and other injuries to
the Achuar indigenous communities.85 These injuries include death,
epidemic lead and cadmium poisoning, exposure to carcinogens and
mutagens, substantial harm to their livelihoods, contamination to their
streams and fields, and continuing trespass on their lands.86
The lead plaintiff in the law suit is Tomas Maynas Carijano, a
resident of the community of Nueva Jerusalen87 (New Jerusalem)a
name that conjures images of heavenliness and holy perfection88 that are
starkly at odds with the lives of members of the community. Maynas is
identified as the Apu, or traditional spiritual leader, of Nueva Jerusalen.89

81. Id. at 47 (quoting an unnamed Achuar woman). In the report, the names of
individuals who were interviewed were not provided to protect their privacy and protect
them from possible reprisals for speaking out. See id. at 7.
82. Achuar Complaint, supra note 66.
83. Id. at 1.
84. Id.
85. Id.
86. Id.
87. Id.
88. See, e.g., Wikipedia, New Jerusalem, http://en.wikipedia.org/wiki/New_Jerusalem#
Christianity (last visited Apr. 23, 2008).
89. Achuar Complaint, supra note 66, at 1.
2008] THE ACHUAR AND OCCIDENTAL 117

The other plaintiffs (each denominated as a Jane Doe or John Doe) are
members of the communities of Nueva Jerusalen, Pampa Hermosa, Sauk,
Jbaro (formerly known as Antioquia), and Jos Alaya, and include adults,
children bringing actions through their guardians, and in one case a parent
bringing an action as successor-in-interest to her deceased son.90 Named as
defendants, in addition to Oxy, were fifty unnamed defendants, whose
names and capacities were not yet known but who were subsidiaries,
affiliates, and related corporations of Occidental Petroleum Corporation
(OPC), and past and current officers and other employees of OPC and the
foregoing entities.91
The complaint explained that the plaintiffs communities lie along the
Corrientes River (a tributary of the Amazon River) and its tributary the
Macusari River, in the Upper Corrientes River Basinan area that was
largely pristine rainforest with no industrial activities prior to Oxys
arrival.92 Oxys concession, known as Lot 1AB, includes the upper
portions of the Corrientes River and most of the Macusari River.93 Oxy
developed its concession, in which oil was discovered in 1972, into Perus
largest oil operation. Lot 1AB became so dominant in Peruvian oil
production that from 1972 to 2000, it accounted for 68% of the Peruvian
Amazons total historical production.94 This high level of production
necessitated extensive construction projects and the drilling of a large
number of wells. Oxy built separation batteries (installations in which
crude oil is separated from the so-called produced waters); roads,
heliports, and worker camps; and refineries and pipelines (totaling over 530
kilometers). One hundred ten active wells were in operation by 2000; an
additional seventy-five were inactive and twenty-nine were abandoned.95
Oxys activities had, and continue to have, profound effects on the land and
waterways of the Achuar communities, as the Peruvian government
acknowledged in the classification by the National Office of Evaluation of
Natural Resources of Lot 1AB as one of the most critical environmental
zones most damaged in the country.96
According to the complaint, several of Oxys separation batteries

90. See id. at 1-3.


91. See id. at 4.
92. Id. at 5.
93. See id. Oxy first received a concession, known as Lot 1A, from the Peruvian
government in an operating contract signed in 1971. When Oxy later gained the concession
for Lot 1B, the lots were combined into the Lot 1AB concession. Id.
94. Id. at 6. The accumulated production from 1972 to 2000 accounted for 26% of total
production in all of Peru, and by 2000 Lot 1AB was still responsible for 17% of total
production. See id.
95. Achuar Complaint, supra note 66, at 6.
96. Id. The Bureau of Environmental Affairs of the Ministry of Energy and Mines has
also called the area one of Perus most environmentally critical. Id.
118 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

were located along the tributaries of the Corrientes and Macusari Rivers
and discharged millions of gallons of produced waters into local
waterways. As A Legacy of Harm explained, the produced waters result
from the oil production process, which involves pumping drilling fluids
(highly toxic chemicals pumped into wells as part of the drilling operation
and drawn from the well with the crude as part of the production waste)
into the reservoir to push oil out of the rock. The toxic chemicals then join
with highly salty waters, called formation waters, that lie below the
hydrocarbons, to form produced waters, which surface from the well
with the crude.97 Among the harmful compounds contained in the produced
waters, which were extremely saline, were heavy metals (lead, cadmium,
chromium, mercury, and arsenic), organic compounds (including aromatic
hydrocarbons), radioactive compounds, and cyanide.98 Oxy engaged in the
practices that led to these harmful discharges despite the fact that they were
contrary to the industry standard, which called for reinjection of produced
waters back into the wells from which the oil was drawn; contrary to U.S.
law, which required reinjection; and contrary to Peruvian law, which
prohibited water pollution.99 Waterway contamination was also caused by
frequent crude oil spills and pipeline ruptures.100
The complaint alleged additional kinds of environmental harm from
Oxys operations. Chemical wastes and other toxic substances, including
heavy metals and organic compounds, were stored in unlined earthen pits
and pools, from which they leached out and entered local waterways. The
industry standard at the time, the complaint claimed, called for such
harmful waste to be stored in tanks or in storage areas with impermeable
barriers to prevent releases.101 Finally, the burning that occurred in parts of
the production and separation process polluted the air and contributed to
climate change through the release of carbon dioxide, nitrogen oxide, and
sulfur dioxide.102
The plaintiffs claimed that in the practices described above, Oxy
failed to exercise reasonable care, and Oxy knew or should have known
that the practices would harm the environment and human health.103 The
complaint described the kinds of problems that were affecting the Achuar
communities as a result of Oxys misconduct.
The starting point for assessing the harms suffered by the plaintiffs

97. A LEGACY OF HARM, supra note 2, at 18.


98. Achuar Complaint, supra note 66, at 6.
99. Id. at 7.
100. Id.
101. Id.
102. Id. Pollutants were subsequently returned to the soil and water sources through acid
rain. Id.
103. Id.
2008] THE ACHUAR AND OCCIDENTAL 119

was, necessarily, the relationship between the Achuar and the rivers and
their tributaries. Because the communities use these waterways for
drinking, bathing, washing, and fishing, members of the communities have
been exposed to the contamination caused by Oxy.104 The health impacts of
this exposure identified in the complaint included skin rashes; aches and
pains; gastrointestinal problems (which caused some afflicted individuals
to vomit blood); and cancer.105 Many Achuar children are suffering from
lead poisoning, which is known to adversely impact child development.
Nine of the plaintiffs had been found to have lead levels higher than 10
g/dL (milligrams per deciliter) at least once in the previous year, and as a
result were suffering or at risk of suffering harm from lead poisoning. 106
The U.S. Centers for Disease Control (CDC) has noted that lead
poisoning can affect nearly every system in the body and can cause
learning disabilities, behavioral problems, and, at very high levels, seizures,
coma, and even death.107 In addition to the lead poisoning suffered by
children, approximately 99% of individuals of various ages in two
communities who were tested had cadmium levels in their blood that were
in excess of the level that was considered safe for human health.108
According to the U.S. Occupational Safety and Health Administration, [a]
vast amount of literature exists which documents the adverse health effects
from acute and chronic exposure to cadmium in both humans and animals,
the primary adverse effects being lung cancer and kidney damage.109 In
addition, all plaintiffs are at risk of developing cancer from exposure to
polycyclic aromatic hydrocarbons (PAHs) and other oil production
byproducts.110
Waterway contamination impacts extended beyond effects resulting
from water consumption by the Achuar, according to the complaint. Water
contamination has also affected the Achuars food supply. Fishing has

104. Achuar Complaint, supra note 66, at 7-8.


105. Id. at 6. See A LEGACY OF HARM, supra note 2, at 29-31, for details on the general
health impacts, including deaths, resulting from the contamination.
106. See Achuar Complaint, supra note 66, at 8. See A LEGACY OF HARM, supra note 2,
at 31-32, for details on the lead testing and on the impact of lead poisoning.
107. U.S. Dept. of Health and Human Services, Centers for Disease Control and
Prevention, General Lead Information: Questions and Answers, http://www.cdc.gov/
nceh/lead/ faq/about.htm (last visited Apr. 23, 2008).
108. Achuar Complaint, supra note 66, at 8. It was believed that all of the plaintiffs had
similar blood levels. Id. See A LEGACY OF HARM, supra note 2, at 32-33, for details on the
cadmium poisoning in the communities.
109. U.S. Dept. of Labor, Occupational Safety and Health Admin., Occupational
Exposure to Cadmium, Health Effects, http://www.osha.gov/pls/oshaweb/owadisp.show_
document?p_table=PREAMBLES&p_id=819 (last visited Apr. 23, 2008).
110. Achuar Complaint, supra note 66, at 9. See A LEGACY OF HARM, supra note 2, at 23,
for details on the presence of PAHs and their effects.
120 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

become less productive, as the yields of fish have declined.111 In some


areas, all fish and aquatic life have disappeared, while in areas where
species remain, they are contaminated or deformed. Terrestrial animals,
including wild game animals that are hunted by the Achuar, have also
suffered from the effects of contamination.112 Birds and other animals that
eat contaminated fish or drink the water often die or develop disease, while
destruction of forest areas and other habitats resulting from oil spills, acid
rain, and release of waste also continues to take its toll.113
Water contamination has also led to crop land contamination, in areas
where flooding rivers inundate Achuar fields, leaving behind oil and other
chemicals when the waters recede. The contaminated soil can no longer
produce the crops, such as plantains and cassava, that the Achuar
traditionally grow there.114 In summary, the contamination caused by Oxy
has adversely impacted the ability of the Achuar to fish, hunt, gather food,
and grow food, leading to poor nutrition and resulting health impacts.
Moreover, the isolation of the plaintiffs communities and their poverty
means that they cannot access alternative food sources.
The impacts of the contamination of Achuar are translated in the
complaint into their effects on Achuar property rights: the contamination
has caused a diminution in the value of their lands and injury to the right of
use and enjoyment of their lands. The Achuar own the affected agricultural
lands, homes, and trees (used for building material and firewood). Land
value has been reduced by the lands being rendered unfit for habitation or
productive uses.115 Rights of use and enjoyment have also been adversely
affected, as the contamination has deprived the Achuar owners of some of
the lands primary use: agricultural production.116 Their ability to provide
sustenance and shelter for their families, and earn income from the land,
are consequently affected.117
The plaintiffs tied the contamination to Oxys operations by noting
that Oxy was the only industry in the area where the plaintiffs reside during

111. Achuar Complaint, supra note 66, at 9. See A LEGACY OF HARM, supra note 2, at 28-
29, for additional information about the impact of contamination on fish and aquatic fauna.
112. Achuar Complaint, supra note 66, at 9. See A LEGACY OF HARM, supra note 2, at 27-
28, for additional information about the impact of contamination on game animals.
113. Achuar Complaint, supra note 66, at 9. See A LEGACY OF HARM, supra note 2, at 25-
26, for additional information about the impact of contamination and other effects of the oil
extraction operation on the forests.
114. See Achuar Complaint, supra note 66, at 9. See A LEGACY OF HARM, supra note 2,
at 24-25, for additional information about the impact of contamination on Achuar lands and
farming.
115. See Achuar Complaint, supra note 66, at 9-10.
116. See id. at 10. Some land owners have not entirely lost the ability to grow crops on
their land, but the lands productivity has decreased substantially. See id.
117. Id.
2008] THE ACHUAR AND OCCIDENTAL 121

its thirty years of activity in the region and was the sole source of
contamination during this time.118 Oxys practices over the thirty-year
period are the direct cause of the injuries to people and property that the
plaintiffs identified. The duration and magnitude of the contamination
caused it to compound over time and develop into one of the most massive
environmental catastrophes in Perus history.119 Oxys practices,
technologies, and systems were transferred to Pluspetrol, which has
perpetuated them, thus allowing Oxys practices and decisions to continue
as a toxic legacy left by the company for years to come.120
The complaint further alleged that Oxy was well aware of the dangers
to which the plaintiffs were exposed, but chose not to warn them121 and
tried to conceal its role in the resulting damages.122 Oxy maintained health
personnel in the concession area, who occasionally did treat the Achuar but
without telling them that their exposure to contamination might be the
cause of their health problems and without giving them adequate
medications to treat their illnesses.123
The plaintiffs general allegations, based on the foregoing statement
of facts, included the following:
Oxys actions were willful, reckless, and/or negligent, and
were committed in conscious disregard of plaintiffs health,
124
safety, property, and rights;

the plaintiffs have suffered and will continue to suffer harm as


125
the result of Oxys tortious conduct;
126
Oxys conduct violated California and Peruvian law; and

the case could not be adequately litigated in the Peruvian

118. Id.
119. Id.
120. Id.; see also id. at 11 (explaining that Pluspetrol has not adequately cleaned up the
toxic wastes left by Oxys operations, continues to operate the same facilities built by Oxy,
and continues to discharge produced water and store chemical and wastes in the same way
that Oxy did).
121. See Achuar Complaint, supra note 66, at 10.
122. Id. at 11.
123. Id. at 10. The Achuar were given only aspirin even for serious conditions. Id.
124. Id. at 12.
125. See id. The specific harms listed were property damage, pain and suffering,
personal injuries . . . extreme and severe mental anguish and emotional distress . . . [and]
harm to their livelihoods. Id.
126. Id. The laws violated were laws protecting health and safety, water quality, and
regulating the oil industry. Id.
122 NEW ENGLAND LAW REVIEW [Vol. 42:nnn
127
courts because the judicial system is corrupt and Oxy is no
128
longer subject to service of process in Peru.
The complaint proceeded to list eleven specific causes of action,
which are summarized below:
1. Negligence and Strict Liability. The defendants owed a duty of care
to the plaintiffs to exercise reasonable care in conducting their operations,
disposing of toxic wastes, and transporting any harmful products, including
oil. The defendants breached this duty of care by their negligent design and
construction of their facilities, by their releases of toxins, and by their
failure to clean up the operations. Their negligence also extended to using
technology that was below then existing industry standards, including the
standards followed in Oxys U.S. operations.129 Moreover, the complaint
alleged, the facilities and systems were defective, inadequate, unproven
and unreasonably dangerous[,] and in use when superior alternative
pollution control technology existed, was reasonably available, and was
used by Oxy in other locations.130 Oxys intentional exposure of the
plaintiffs to toxic chemicals and intentional injuries to plaintiffs health
were the basis for a strict liability claim.131
2. Battery, Medical Monitoring, and Wrongful Death. The
defendants intentional and deliberate acts and omissions resulted in the
discharge of toxic chemicals into the plaintiffs lands and waters, and the
plaintiffs have ingested and otherwise come into contact with the
chemicals. The defendants knew or could reasonably foresee that their
conduct would contaminate the land and water and cause injury. The
defendants acts and omissions thus constituted unwanted physical contact
and battery upon the plaintiffs bodies.132 In addition, the defendants
conduct in exposing the plaintiffs to known hazardous substances, such as
lead, cadmium, and carcinogens, has increased their risk of contracting
latent diseases, including developmental delays, cancers, chromosomal and

127. Achuar Complaint, supra note 66, at 12. The complaint claimed that thousands of
bribes to judges and other government officials have been documented and that [o]n
information and belief, Oxy has participated in bribing government officials in Peru. Id.
128. Id. Oxy had announced in December 2006 that it was withdrawing from Peru and
the plaintiffs believed that Oxy no longer has any producing operations in the country. Id.
129. Id. at 15. See A LEGACY OF HARM, supra note 2, at 35-37, for additional information
about the existing industry and U.S. legal standards and Oxys failure to follow them in its
Corrientes Basin operations. The industry standard called for use of reinjection technology
for dealing with produced waters, which involves reinserting produced waters into a saline
aquifer deep in the earth using a non-producing oil well or a well specifically drilled for this
purpose, effectively storing wastewater at a depth where it cannot contaminate potable
groundwater. Id. at 37.
130. Achuar Complaint, supra note 66, at 16-17.
131. See id.
132. Id. at 17-18.
2008] THE ACHUAR AND OCCIDENTAL 123

genetic defects, and liver and kidney damage.133 The plaintiffs are entitled
to a court-ordered medical monitoring program for early detection and
treatment of the diseases and other problems that they may develop because
of the exposure to contaminants that resulted from the defendants
conduct.134 In addition, one plaintiff, Jane Doe 13, brought a wrongful
death claim based on the death of her son, John Doe 12, who had died after
drinking contaminated river water.135
3. Injunctive Relief, or Damages in Lieu of Injunction, to Remedy
Environmental Contamination. The defendants actions caused injury to the
plaintiffs by contaminating the land and waters that they used. As there is
no adequate remedy at law for the harms caused by the defendants acts
and omissions, the plaintiffs are entitled to equitable and injunctive relief
(or, in the alternative, damages) to remedy the contamination and
spoliation of the lands and waters that they use and overall habitable
environment.136
4. Fraud and Misrepresentation. The defendants made
misrepresentations about the cause of the plaintiffs illnesses, knowing that
their statements were fraudulent, misrepresentative, false, and/or deceptive.
They actively concealed that their practices endangered the plaintiffs and
their livelihoods. Their misrepresentations and other deceptive actions
concerned material facts that led to the plaintiffs injuries and, as a direct
and proximate cause of their actions, the plaintiffs suffered injuries to their
health, livelihood, and property.137
5. Public and Private Nuisance and Trespass. The defendants
contamination of the environment in and around the Lot 1AB operations
has created a public nuisance, especially and peculiarly harmful to the
plaintiffs, which endangers and will continue for many years in the future
to endanger the safety, health, livelihoods, and comfort of a large number
of persons.138 Moreover, the defendants actions amounted to non-
trespassory and trespassory invasions of the plaintiffs private use and
enjoyment of their land. Their property was damaged through
contamination of waters running through or next to the plaintiffs property
(constituting a private nuisance)139 and through discharge of chemicals and
other pollutants onto land in which they had a beneficial interest
(trespass).140

133. Id. at 18.


134. Id.
135. See id. at 19; see also id. at 8 (describing the circumstances of John Doe 12s death).
136. Achuar Complaint, supra note 66, at 19.
137. Id. at 20.
138. Id. at 21.
139. See id. at 21-22.
140. See id. at 22.
124 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

6. Violation of the California Business & Professions Code. Finally,


the plaintiffs alleged that the defendants practices, including discharge of
pollutants in violation of Peruvian law and the use of lower pollution
control standards in Peru than in the defendants U.S. operations,
constituted unfair business practices within the meaning of Section 17200
of the California Business & Professions Code. In addition, the defendants
use of unfair, illegal, and destructive practices gave the defendants an
unfair business advantage over their competitors and harmed consumers.141
The plaintiffs sought compensatory and punitive damages, injunctive
and declaratory relief, disgorgement of profits, and restitution (as
appropriate for the various claims), along with attorneys fees and the costs
of the suit.142 Specific damages amounts were not mentioned in the
complaint, although an attorney who has worked with the Achuar on the
claim, Lily la Torre, has said that the total sought would be many millions
of dollars.143 The total amount has not yet been established, she added,
because the pollution in the area has barely been exposed, [and] the
damage is enormous . . . .144
Occidental is seeking dismissal of the suit. Occidental is also denying
liability and pleading ignorance145 of the kinds of health problems that the
plaintiffs have described and that outside investigators, as well as the
Peruvian Health Ministry, have documented. A company spokesman has
stated that Occidental has a long-standing commitment and policy to
protect the environment and the health and safety of people and is
aware of no credible data of negative community health impacts resulting
from Occidentals operations in Peru.146 In light of the data in A Legacy
of Harm and the existence of a consistent government report, Occidentals
claims of ignorance are nothing short of incredible.

III. COMPARING ENVIRONMENTAL HARMSLESSONS TO BE LEARNED


FROM THE BHOPAL AND ACHUAR VICTIMS EXPERIENCES

With this lawsuit, I am here demanding Oxy clean up and


compensate for the contamination it left in the Rio Corrientes
region. . . . Our children are guaranteed death unless Oxy acts

141. See id. at 22-23.


142. See Achuar Complaint, supra note 66, at 23-24.
143. Peru: Achuar Indigenous Community Sues Occidental Petroleum for Decades of
Contamination, supra note 5.
144. Id.
145. Kelly Hearn, For Perus Indians, Lawsuit Against Big Oil Reflects a New Era,
WASH. POST, Jan. 31, 2008, at A14, available at http://www.washingtonpost.com/wp-
dyn/content/article/2008/01/30/AR2008013003744.html.
146. Id. (quoting an e-mail statement by Occidental spokesman Richard Kline).
2008] THE ACHUAR AND OCCIDENTAL 125
147
now.

...

[W]e will not allow Dow to rest easy and do business in India.
148
We may be poor, but they have to value our lives.
Readers of this Article who have read other Articles in this
symposium issue no doubt have formed their own impressions of the ways
in which the experiences, as well as the legal claims, of the victims of the
oil extraction operations on Achuar lands and of the Bhopal disaster
converge and diverge. My aim is to highlight some of the convergences and
divergences, as they appear to me, and tie them to what I believe are the
lessons that can be learned from these situations for those who are
concerned about redressing the damages from these events and trying to
prevent similar events elsewhere.
The crux of the problem in both the Achuar and Bhopal scenarios is
the vulnerability of the victims to the superior political and economic
power of multinational corporations operating in their country, welcomed
by their governments but present without the consent of the people whose
lands, lives, and livelihoods are threatened by their operations. Occidental
was able to launch its operations on Achuar lands because it received a
concession, granted by government officials in a city hundreds of miles
away from the affected communities, to do so. The Achuar, their lands
lying atop great mineral wealth in which, under Peruvian law, they are not
recognized as having legal rights, have not benefited from Occidentals
surprise appearance in their territory. In Bhopal, the Union Carbide plant
was not sited where it was because of the presence of natural resources like
petroleum; rather, the presence in the plants neighborhood of a certain
kind of peoplepeople who may have been considered by those in power
to be at some level expendable and the casualties of an at least implicit
acceptable risk calculationseems more likely to have been a
determining factor in the plants location. When the Bhopal disaster
occurred, it was these people, living in slums like Jayaprakash Nagar, Kazi
Camp, Chola Kenchi, and the Railway Colony, in the immediate area
around the plant, who were most seriously affected.149 The Bhopal victims,
like the Achuar of the Corrientes River basin, were among the poorest

147. Peruvian Group Claims Occidental Petroleum Contaminated Land, INTL. HERALD
TRIB., May 10, 2007, available at http://www.iht.com/articles/ap/2007/05/10/business/NA-
FIN-US-Occidental-Petroleum-Suit.php (quoting Tomas Maynas Carijano).
148. Rama Lakshmi, Survivors Pressure Dow on Cleanup of Bhopal, PITT. POST-
GAZETTE, Mar. 29, 2008, available at 2008 WLNR 5985459 (quoting Nafisa Khan, a
resident of Bhopal).
149. American University, Trade and Environment Database Case Studies, Bhopal
Disaster, http://www.american.edu/TED/bhopal.htm (last visited Apr. 23, 2008).
126 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

members of their society. While contemporary accounts of the aftermath of


the disaster mention that residents of the areas of Bhopal where
government officials lived and worked also fled the city, they did so only
out of fear of another, more widespread toxic release;150 their distance from
the plant meant that their lives and property were not endangered by the
leak that killed hundreds of poor laborers living near the plant.
Why would the governments of India and Peru be willing to subject
poor, vulnerable citizens of their own countries to the risky,
environmentally destructive practices of multinational corporations? Both
India and Peru had, and have, goals that are advanced by activities like
those of Occidental on the Achuar lands and Union Carbide in Bhopal. For
Peru, allowing Occidental to operate on Achuar lands meant income from
the concession. What happened to the Achuar and to their remote lands
apparently meant little to the government officials in Lima who were
making decisions on the granting of oil concessions. In the case of Union
Carbide, India itself had a financial interest in the Union Carbide plants
operations, as Indian government financial institutions owned about twenty
percent of Union Carbides Indian subsidiary, Union Carbide of India
Ltd.151 Beyond this financial stake, India had an interest in ensuring the
ready availability of the pesticides that the plant was producing, because of
a belief in the usefulness of applying pesticides on crops to increase
agricultural production,152 despite indications that pesticides cannot be
counted on to be a panacea for poverty.153 In short, in both countries,
when government goals came in conflict with the human, property, and
other rights of vulnerable, effectively disenfranchised segments of the
population, the government gave top priority to accomplishment of its own
goals, which were more likely to bring benefits to other segments of the
population. The lesson here, it seems, is that even democratically elected
governments may place what they see as important development goals and
projects above the health and safety of segments of their population that are
not in a position to effectively protest. This may result in sacrificing the
interests of those who are in most need of the benefits, such as improved
education and health care opportunities, that development could bring.
Moreover, there is considerable room for concern over the extent to
which India and Peru still make this same calculation. In the weeks after

150. See Sanjoy Hazarika, On the Eve of Disposal, Indian City Lies Silent, N.Y. TIMES,
Dec. 16, 1984, available at 1984 WLNR 504146.
151. Jamie Cassels, The Uncertain Promise of Law: Lessons from Bhopal, 29 OSGOODE
HALL L.J. 1, 3 (1991).
152. See Philip M. Boffey, Disaster in India Sharpens Debate on Doing Business in
Third World; Modern Pesticides Aid in Insuring More Food for Poorest Countries, N.Y.
TIMES, Dec. 16, 1984, available at 1984 WLNR 503924.
153. Jay Feldman, Letter to the Editor, Pesticides No Panacea for Poverty, N.Y. TIMES,
Dec. 22, 1984, available at 1984 WLNR 493939.
2008] THE ACHUAR AND OCCIDENTAL 127

the Bhopal disaster, a New York Times article posed the following question:
Beyond the grievous human toll at Bhopal is an economic and
political question: Will India slow its headlong rush to acquire
Western technology and pull in a welcome mat only recently put
out for American and other foreign investors[,] . . . . [given that]
[t]he gas leak that killed more than 2,000 people has led to
strident complaints . . . about multinationals that use India as a
dumping ground for obsolete technology and hazardous
154
products[?]
Another article noted that the Bhopal disaster has raised the question
of whether human lives in third-world countries are being treated with the
same degree of concern as those in the United States[,] an issue that was
exacerbated by [t]he fact that automated emergency warning systems
existed at the [Union] Carbide plant in West Virginia but were lacking at its
Bhopal counterpart . . . .155 Recent newspaper accounts have raised
concerns that because of the governments enthusiasm for welcoming
overseas investment, at least some officials continue to be willing to give
multinational corporations leeway in their operations and forgive some of
their liabilities resulting from misconduct. A January, 2008 newspaper
article, for example, reported that top governmental officials have urged an
out-of-court compromise for Bhopal-related claims, in order to pave the
way for a one billion dollar investment in India by Dow Chemical
Company, which acquired Union Carbide in 2001.156
Similarly, in Peru, during its thirty years of operations on Achuar
lands, Occidental used methods that were below industry standards and
U.S. legal standards, without interference from the Peruvian government.157
This track record has not prevented it from being eligible for additional
concessions from the government. Recent newspaper reports on current

154. Robert Reinhold, A Mood of Resentment Spreads Out of Bhopal, N.Y. TIMES, Dec.
16, 1984, available at 1984 WLNR 505904.
155. Agis Salpukas, A Three Mile Island for Chemicals, N.Y. TIMES, Dec. 16, 1984,
available at 1984 WLNR 505657.
156. Steve Herman, VOA News: U.S. Chemical Giant Faces Hurdles in India Due To
Bhopal Gas Leak Legacy, U.S. FED. NEWS, Jan. 8, 2008, available at 2008 WLNR 1121294;
see also Kuldip Nayar, Towards Globalisation, THE NATION (PAKISTAN), Dec. 10, 2007,
available at 2007 WLNR 25869122 (The proposal is for the withdrawal of an application
filed by the Department of Chemicals and Petrochemicals in the court to direct Dow
Chemicals and the two supporting companies to deposit Rs 100 crore towards disposal of
toxic wastes, etc. A note by Commerce Minister Kamal Nath pleads for Dow. He says that
[g]iven the scope for future investments in the sector, it stands to reason that instead of
continuing to agitate these issues in court for a protracted period, due consideration be given
to the prospect of setting these issues appropriately.).
157. See supra notes 77-79 and accompanying text (discussing Occidentals lack of
compliance with industry standards and U.S. legal standards).
128 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

Peruvian government development policies suggest that there continues to


be much cause for concern for the rights, and health and safety, of Perus
indigenous peoples. Peru desires the income from oil concessions, and
continues to conduct what some observers have characterized as a fire
sale of the concessions. As one commentator put it, [i]ncreasing energy
prices indicate that indigenous communities living near Peruvian petroleum
deposits may have more to fear from oil companies in the future[, because]
[t]he Peruvian government is increasingly pushing an oil and gas boom
through some of the worlds most biodiverse rain forests.158 In 2006, 70%
of Perus rain forest was zoned for oil and gas exploration and extraction
(compared to just 13% as recently as 2004),159 but there does not seem to
have been much planning as to how these operations could be run on a
sustainable basis.160 Peru has reportedly offered attractive terms to private
investors in order to attract investment in oil production, with the goal of
reducing imports.161 Thus, the current policies of the Indian and Peruvian
governments suggest that even horrendous environmental and human
disasters brought about by multinational corporations misconduct can be
seemingly forgotten by governments that are eager to privilege profits over
people.
Another convergence between, and lesson to be learned from, the
Bhopal and Achuar experiences relates to the role of host governments in
seeking justice for their citizens for damages inflicted by the operations of
multinational corporations. In the case of Peru, while a Peruvian Health
Ministry study has documented some of the problems suffered in the
Achuar communities in northeastern Peru, the communities have not relied
on the government for assistance in pursuing their claims against
Occidental. Representatives of the community and their allies have instead
spoken of their belief that it is not possible to receive justice in the courts of
Peru. In their complaint, they claim that it would not be possible to
adequately litigate the case in the Peruvian court system. The complaint
states that [t]he Peruvian judicial system is known to be corrupt, and
thousands of bribes to judges and other government officials have been
documented.162 The complaint noted that a Peruvian Supreme Court
justice was arrested on bribery charges in September, 2006.163 As for the

158. Peru: Achuar Indigenous Community Sues Occidental Petroleum for Decades of
Contamination, supra note 5.
159. Id.
160. Id.
161. Lisa Viscidi, Indigenous Rights Groups Condemn Perus Latest Bidding Round, OIL
DAILY, July 18, 2007, available at 2007 WLNR 14822774. This strategy has apparently
succeeded, with investment in 2006 amounting to $515 million, compared to $250 million
in 2005. Id.
162. Achuar Complaint, supra note 66, at 12.
163. Id.
2008] THE ACHUAR AND OCCIDENTAL 129

conduct of Occidental itself, the complaint stated that the corporation has
participated in bribing government officials in Peru.164 Concerns about
judicial corruption also appeared in the U.S. State Departments 2007
Country Report on Peru, which noted that press reports, NGO sources,
and others alleged that judges were frequently subject to corruption or
influence by powerful outside actors165 and that there is a widespread
public perception that corruption was pervasive in all branches of
government.166 In short, because of their fears of corruption in their
countrys judicial system, the Achuar believed that they needed to take
their claims to Occidentals home countrys courts to try to hold it
accountable for their injuries. Presumably an awareness of the Peruvian
governments eagerness to subject as much of Peru as possible to oil and
gas concessions also helped to convince the plaintiffs that any requests for
assistance that were addressed to the government would be ignored.
In the case of the Bhopal disaster, the government of India seemingly
championed the cause of the victims by facilitating the filing of claims in
the Bhopal District Court and filed suit against Union Carbide in the United
States167the only place, the government rather surprisingly claimed, in
which the victims had any hope for justice.168 The government pursued the
litigation in the United States pursuant to a statute (the Bhopal Gas Leak
Disaster Act) that gave the government parens patriae control over the
case.169 The legislation allowed for a shift of the conduct of the litigation
from the victims to the government, a development which was problematic
because of the governments conflict of interestthe government faced the
possibility of legal or at least political liability in the case.170 Concerns were
raised that the governments spearheading of the litigation would prevent
the victims from having their individual needs addressed and from having
remedies tailored to meet those needs.171 Particularly as settlement
negotiations with Union Carbide were conducted, the disempowered
victims, feeling that they had been denied a voice in the litigation and
settlement process, felt confused and betrayed.172 The suit was ultimately
settled in India for $470 million, an amount that was presented to the public
as having been imposed by the Indian Supreme Court but apparently had

164. Id.
165. 2007 COUNTRY REPORT, supra note 36, at sec. 1(e).
166. Id. at sec. 3.
167. See Hanson Hosein, Unsettling: Bhopal and the Resolution of International Disputes
Involving an Environmental Disaster, 16 B.C. INTL & COMP. L. REV. 285, 291 (1993).
168. Cassels, supra note 151, at 16.
169. See id. at 12-13. The Act also authorized the creation of a claims process, to be
administered by a Commissioner, for individual claims. Id. at 13.
170. Id. at 13-14.
171. See id. at 14-15.
172. Id. at 15.
130 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

been arrived at during weeks of behind-the-scenes negotiations between the


government and Union Carbide.173 Victims groups and their supporters
condemned the settlement as inadequate, and as an indication that third
world life is cheap.174 The settlement was also viewed as a victory for
Union Carbide by outsiders, such as investors in the New York stock
market, which reacted to the announcement of the settlement with a rise in
the price of Union Carbides stock.175 Dissatisfaction with the settlement
has continued, and many victims17,222, according to one newspaper
accounthave not yet received any compensation.176 Moreover, the
settlement did not include funds to clean up the contaminated plant site or
to compensate second-generation victims, i.e., individuals who were born
after the disaster but suffer from birth defects and other health-related
problems resulting from the disaster.177 Meanwhile, the government of
India has received criticism for siding with Dow Chemical Company, the
purchaser of Union Carbide, and agreeing with Dows claim that it has not
succeeded to Union Carbides liabilities.178 A recent newspaper article
attributed this stance to the governments desire to encourage Dow
investment in India and claimed that [t]here is a consensus in the highest
echelons of the Congress that it is [in] Indias best interests for the US
chemical multinational to invest in the country by getting rid of the
obstacle that is Bhopal.179
In short, both the Bhopal and the Achuar claims teach the
disappointing lesson that victims of the operations of multinational
corporations cannot necessarily count on their home governments to
support their efforts to seek justice. The government may remain aloof
from the pursuit of their legal claims while maintaining a court system that
appears tainted by judicial corruption, which discourages the victims from
turning to it for redress. Alternatively, the government may become
actively involved in pursuing the claims, but adopt strategies during and
after the litigation that seem contrary to the interests of the victims.
Finally, the Bhopal and Achuar experiences are instructive on another
point: they show how the vulnerability that arises from the low
socioeconomic status of a segment of a countrys population can be related

173. Id. at 37.


174. Cassels, supra note 151, at 38.
175. Id. at 37.
176. See Supreme Court Says No to Increase Compensation to Bhopal Victims,
HINDUSTAN TIMES, May 4, 2007, available at 2007 WLNR 8493161 [hereinafter Supreme
Court Says No].
177. Darryl DMonte, Dirty Business, HINDUSTAN TIMES, Oct. 28, 2007, available at
2007 WLNR 21252179.
178. See, e.g., id. (noting that the Law Ministry has taken the view that Dow has not
inherited the liabilities of Carbide, which is what Dow has been claiming all along).
179. Id.
2008] THE ACHUAR AND OCCIDENTAL 131

to, and be compounded by, what could be described as the social and legal
invisibility of members of the group. In the case of the Bhopal victims, one
of the obstacles to individuals receipt of compensation for injuries
stemming from the disaster is that the claims of a significant number of
them have been set aside by the entity that is supposed to distribute
settlement money on the grounds that the victims are untraceable.180 Poor
laborers often do not stay long in one place, because they have to move on
to wherever they can find work, and in particular the victims who were
children when a disaster occurred cannot be expected to be in the same
place so many years later. Therefore, victims rights advocates urge, there is
a need for the Indian government to come up with a more scientific
approach to identifying victims who are difficult to trace. One attorney
noted, for example, that only childhood photographs and addresses were
being used as a basis for trying to identify and trace victims who were only
seven or eight years old when the disaster occurred.181 The government
would prefer, however, for these victims to remain invisible in the claims
process and have their claims cut off.182
As for the Achuar communities, legal invisibility is a concept with
which Perus indigenous peoples are familiar. As the U.S. State
Departments 2007 Country Report on Peru noted, Peruvian law provides
that all citizens have the right to a name, nationality, and legal recognition
and guarantees other civil, political, economic, and social rights . . . .183
More than one million Peruvian citizens, however, lack identity documents
and therefore cannot fully exercise their rights.184 The Report noted that
[a]n estimated 15 percent of births were unregistered and that [p]oor
indigenous women and children in rural areas were disproportionately
represented among those lacking identity documents.185 If the Achuar
litigation succeeds and compensation is distributed, this issue might affect
compensation distribution as it did for the Bhopal victims.
In summary, then, the Achuar communities experiences resemble
those of the Bhopal victims in a number of ways and teach similar lessons.
Particularly in nations that see themselves as trying to catch up with more
developed economies, the rights and interests of poor, effectively
disenfranchised, and legally invisible segments of the population may be
sacrificed to the demands of national development and globalization.

180. Supreme Court Says No, supra note 176.


181. Id.
182. See id. (noting a Solicitor Generals urging to the Supreme Court that compensation
claims be closed).
183. See 2007 COUNTRY REPORT, supra note 36, at sec. 5.
184. Id. The Report noted that lack of identity documents leads to social and political
marginalization and creates barriers in accessing government services, including running
for public office, or holding title to land. Id.
185. Id.
132 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

Governments may then fail to determine, or fail to intervene when they do


determine, that the multinational corporations that they have welcomed,
either for manufacturing or extractive operations, engage in practices that
involve dangerous cost-cutting as to environmental and other safeguards
and deliberate use of substandard technology. Thus, these corporations can
enjoy the opportunity to do abroad what they cannot do at home,
maximizing their profits in the process. When the victims consider turning
to their countrys courts for redress, they may well learn that they cannot
count on their government to provide the kind of support that they need to
achieve justice.
If the experiences of the Bhopal and Achuar victims converge in these
ways and are similarly instructive, in what ways do the victims
experiences and claims diverge from each other? I will highlight one
difference. The Achuar plaintiffs are members of an indigenous people, and
because of this status at least have the potential for presenting claims that
are based upon international instruments and legal principles that
specifically address the property, environmental, and cultural rights of
indigenous peoples. To date, the mere existence of such rights seemingly
has not helped them. It stands to reason that some of the same factors that
make recognition of rights based on indigeneity so crucial to indigenous
peoples, such as their low socioeconomic status, linguistic differences, and
marginalization, serve as barriers to their successful assertion of such
rights. Nonetheless, as their litigation proceeds, they may seek to buttress
their claims with references to ILO Convention No. 167, for example. The
status of the Achuar of the Corrientes River basin as an indigenous people
might also pave the way for them, acting as a distinct people, to seek
consideration of their claims before international bodies, such as the Inter-
American Human Rights Commission of the Organization of American
States. The Commission has considered petitions submitted by other
indigenous peoples that describe claims based on damage caused by state-
sanctioned operations of foreign corporations. While noting that states,
rather than multinational corporations, sign and adopt human rights treaties
and conventions and therefore are the parties who are primarily bound by
them, A Legacy of Harm explained that multinational corporations can be
bound by customary law186 and also are called to respect international
human rights laws by such instruments as the Universal Declaration of
Human Rights and the United Nations Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard to
Human Rights.187 In short, the status of the Achuar people as an

186. A LEGACY OF HARM, supra note 2, at 38.


187. Id. at 40; U.N. Econ. & Soc. Council, Commn on Human Rights, Sub-Commn on
the Promotion and Prot. of Human Rights, Economic, Social and Cultural Rights: Norms on
the Responsibilities of Transnational Corporations and Other Business Enterprises with
2008] THE ACHUAR AND OCCIDENTAL 133

indigenous people, based on a territory that the Achuar have inhabited


since time immemorial, may provide the basis for claims, and for access to
fora for consideration of those claims, that were not available to the
individuals residing in Bhopal who were injured by the actions of their
corporate neighbor. Only time will tell whether the Achuar and their
attorneys ultimately pursue these kinds of claims, potentially against the
government of Peru itself for its role in facilitating Occidentals operations,
and potentially in fora other than the courts of the State of California.

CONCLUSION

The protection of the environment is . . . a vital part of


contemporary human rights doctrine, for it is a sine qua non for
numerous human rights such as the right to health and the right
188
to life itself.
If the experiences of the Bhopal victims are any indication, then the
Achuar victims of Occidentals operations in Peru face an uphill battle in
their struggle to obtain justice from Occidental for the injuries that its
operations have caused to the Achuar communities of northeastern Peru
and their land. As I finish this Article, newspaper reports describe the most
recent public manifestation of the frustration of Bhopal victims with the
denial of justice for their claims of past damage and continuing
contamination. A group of over fifty individuals, composed of survivors of
the disaster, their children, and people exposed to still contaminated
drinking water, have walked the 500 miles from Bhopal to New Delhia
walk that took thirty-seven daysto draw attention to their quest for justice
and to convey their demands to the government for a special commission to
oversee victim rehabilitation and medical treatment and for holding Dow
Chemical Company accountable for the clean-up of the contaminated
site.189
While the Bhopal experience does not inspire optimism, the Achuar
litigation is just in its infancy, so there must be room for hope that litigation
involving Achuar claims against Occidental will receive a more satisfactory
outcome. Like the Bhopal victims, the Achuar plaintiffs have traveled
hundreds of miles from their homes in their quest for justice. One
commentator has described this undertaking as a reverse incursiontribes
follow corporate giants into their native habitats.190 The Achuar plaintiffs

Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003).


188. A LEGACY OF HARM, supra note 2, at 38 (quoting Judge Weeramantry of the
International Court of Justice, in Case Concerning the Gabcikovo-Nagyamoros Project
(Hungary v. Slovakia), 1997 I.C.J. Rep. 7 (Sept. 25, 1997) (sep. op. of Weeramantry, J.).
189. See Bhopal Gas Victims Seek Manmohan Singhs Intervention, HINDUSTAN TIMES,
Mar. 30, 2008, available at 2008 WLNR 6037734; Lakshmi, supra note 148.
190. Editorial, Native Intelligence, L.A. TIMES, Mar. 29, 2008, at 20.
134 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

undoubtedly feel some sense of accomplishment from some recent Achuar


successes in defending their lands from further damage, such as a 2007
agreement by Pluspetrol, Occidentals successor in the Lot 1AB
concession, to not drill thirty-nine proposed new wells in Achuar
territory.191 Remarks in the United States by the lead plaintiff, Tomas
Maynas Carijano, suggest that he is feeling some confidence that justice
will be done in the United States on the basis of a sense of common
humanity. Speaking at Loyola Law School in Los Angeles, Maynas said
that he trusted his brothers and sisters in the United States to understand
that what is right for people here is right for people in the Amazon.192 In
Maynass view, his wisdom and his stewardship . . . are based on
principles that are universal.193 As the plaintiffs and defendants wait to
hear the initial judicial reaction to the Achuar suit,194 it can only be hoped
that Maynass trust in Americans is not misplaced.

POSTSCRIPT
Following the completion of this Article, the U.S. District Court for
the Central District of California (to which the case was removed
subsequent to its initial filing in California state court195), in an order by
Judge Philip Gutierrez, granted the defendants motion to dismiss the case
based on the doctrine of forum non conveniens.196 The court rejected the
plaintiffs motion to conduct limited discovery regarding the proper forum
for the suit,197 maintaining (without elaborating) that the court had

191. Press Release, Amazon Watch, Achuar Block 39 New Oil Wells on Their Territory;
Cmtys. Celebrate Major Victory in Battle to Protect Ancestral Lands (Aug. 29, 2007),
available at http://www.amazonwatch.org/newsroom/view_news.php?id=1442.
192. Native Intelligence, supra note 190, at 20 (describing Maynass remarks).
193. See id.
194. See id. (noting that both sides are waiting for a decision by Judge Philip Gutierrez).
195. Order Denying Plaintiffs Motion to Conduct Limited Discovery and Granting
Defendants Motion to Dismiss Based on Forum Non Conveniens, Tomas Maynas Carijano
v. Occidental Petroleum Corp., at 2, No. CV 07-5068 PSG (PJWx) (C.D. Cal. Apr. 15,
2008) (Gutierrez, J.), available at http://www.earthrights.org/files/Legal%20Docs/
Oxy%20forum%20non%20conveniens%20order.pdf (noting defendants removal of the
case to federal court).
196. Id. at 1.
197. Id. at 3. The plaintiffs proposed discovery included:
(1) discovery regarding the Peruvian legal system, including
Defendants experiences with the legal system and their awareness of
corruption; (2) discovery regarding the location of witnesses and
evidence; and (3) limited depositions of Defendants representatives
concerning the direction and control of Defendants Peruvian
operations, the current location of documents relevant to those
operations, the involvement of Defendants in any bribery or corrupt
transactions or accusations of such involvement, and Defendants
2008] THE ACHUAR AND OCCIDENTAL 135

sufficient information to weigh the parties interests and determine the


adequacy of the foreign forum.198 Considering the defendants motion, the
court noted that a defendant moving to dismiss based on forum non
conveniens bears the burden of showing (1) that there is an adequate
alternative forum, and (2) that the balance of private and public interest
factors favors dismissal.199 The court conclude[d] that Peru is an
adequate alternative forum,200 waving aside the plaintiffs concern over
the barriers, such as lack of identity papers, that prevent the Achuar from
fully participating in the Peruvian judicial system, by citing a defendants
experts assurance that Peru has taken substantial measures to protect
indigenous rights.201 As for the public and private interest factors at stake,
the court concluded that both the private interest factors202 and (given
Perus interest in the dispute) the public interest factors weighed in favor of
dismissal.203 While acknowledging the usual presumption in favor of a
plaintiffs choice of forum, the court accorded only some deference to
the plaintiffs choice because, although Amazon Watch is a California
plaintiff, the Achuar plaintiffs are foreign and therefore the court believed
that their forum choice was entitled to less deference.204
The plaintiffs are determined to continue to seek legal redress against
Occidental in the United States and Peru.205 They are currently weighing

litigation history in Peru.


See id. at 2.
198. Id. at 3.
199. Id. (quoting Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)).
Among the private factors to be considered are ease of access to sources of proof,
compulsory process to obtain the attendance of hostile witnesses and the cost of transporting
friendly witnesses, and other problems that interfere with an expeditious trial. Id. at 4
(citing Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1451-52 (9th Cir.
1990). The public factors include court congestion, the local interest in resolving the
controversy, and the preference for having a forum apply a law with which it is familiar.
Id.
200. See id. at 9.
201. Order, supra note 195, at 5. The court also held that the plaintiffs had not presented
evidence amounting to a sufficiently powerful showing of corruption to defeat a motion for
forum non conveniens. See id. at 9.
202. Id. at 9-11.
203. See id. at 11. The other public interest factors of court congestion and preference for
having a forum apply a law with which it is familiar were found to be neutral factors in the
analysis. See id. at 11-12.
204. See id. at 12.
205. See Marco Simons, EarthRightsInternational, Achuar Communities Will Continue to
Seek Legal Redress in the U.S. and Peru, Apr. 17, 2008, http://www.earthrights.org/
legalfeature/achuar_indigenous_communities_will_continue_to_seek_legal_redress_in_the_
u.s._and_peru.html.
136 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

their options, including the possibility of appeal.206 In the meantime, the


Achuar struggle remains active on other fronts. Achuar representatives
appeared at the May annual meeting of Occidental shareholders, at which
corporate leaders celebrated Occidentals record-breaking $5.4 billion oil
and gas profits.207 Speaking through a translator, Henderson Rengifo
addressed Occidental Chief Executive Officer Ray R. Irani during the
meetings question and answer period, stating, We demand
compensationour people are suffering[.] . . . We will never remain
quiet while your company evades its shameful responsibility.208 While an
exasperated Irani said that we cant keep listening to every guy who came
up from Peru,209 it is clear that the Achuar have no intentions of fading
away quietly into their degraded and desecrated territory. In boardrooms
and in court rooms, the Achuar struggle for redress continues. Too much is
at stake for them to simply go home and let their voiced be silenced.

206. See id.


207. See Tiffany Hsu, Amid Protesters, Occidental Has Profitable Meeting, L.A. TIMES,
May 3, 2008, available at 2008 WLNR 8222453. Occidentals shrinking debt and record
$63.6 billion market capitalization were also touted at the meeting. See id.
208. See id.
209. Id.