CORPORATE COMPLICITY IN HUMAN RIGHTS ABUSES
A Discussion Paper
Vuyelwa Kuuya
1.
Since the end of the cold war the world has experienced a rise in the pace of
globalisation and an unprecedented rise in the level of international trade and investment.
This has led to a rise in corporate economic power which has had both positive and negative
impacts on the enjoyment of human rights. Were corporate power has led to human rights
violations various stakeholders – employees, consumers, indigenous communities, nongovernmental and inter-governmental organisations, legislators and others – have called for
corporate accountability for harm causing activity. The concept of corporate complicity in
human rights violations has been put forward as the basis on which this accountability
should be founded.
2.
The International Commission of Jurists has advanced the following definition of
corporate complicity:
‘Frequently, the term is not used in the legal sense denoting the position of the criminal
accomplice, but rather a rich and multi-layered colloquial manner to convey the connotation
that someone has become caught up and implicated in something that is negative and
unacceptable. Such use of the term has become commonplace in the context of work on
business and human rights, and it has provided a tool to capture and explain in some simple
terms the fact that companies can become involved in human rights abuses in a manner that
incurs responsibility and blame.’1
3.
This paper sets out to canvass the manner in which ‘hard law’ – international law and
domestic law – have paid attention to the relationship between corporations and human
rights. The first section concentrates on international law. Treaties and judicial opinions
delivered by regional courts of human rights will be used to make the point that the primary
obligation for the protection of human rights falls on states. Any breaches of human rights
by others are to be regulated by states, both ex ante and ex post facto. It concludes that
international law has not yet fully recognised the concept of corporate complicity in human
rights violations.
4.
The concept of corporate complicity in human rights violations has been given much
more consideration by courts in the United States of America. Section two focuses on the
cases of Doe v Unocal2 and Presbyterian Church of Sudan v Talisman Inc.3 which were based on the
Aliens Tort Claims Act.

Prepared by Vuyelwa Kuuya, Research Fellow– Lauterpacht Centre for International Law,
University of Cambridge; Research Associate- First Africa (Pty) Ltd.
1
Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in
International Crimes, Criminal Law and International Crimes (vol 2, 2008) 1.
2
395 F. 3d 932 (9th Cir. 2002).
3
453 F. Supp.2d 633 (S.D.N.Y. 2006)
1
5.
The focus of the last section of the paper is on the non-legal, co-operative efforts
that have been made by corporations and ‘stakeholders’ to ensure corporate responsibility
for human rights on a global and regional level. This will consider (a) the Draft Norms on
the Responsibilities of Transnational Corporations put forward by the United Nations SubCommission on the Promotion and Protection of Human Rights, and (b) more briefly, the
OECD Guidelines for Multinational Corporations.
6.
Although many efforts have been made to map out the human rights responsibilities
of corporations through both legal and non-legal means, there are still questions regarding
the responsibilities of corporations in weakly governed, resource rich and often conflict
ridden-states. Economists have put forward evidence that these nations are victims of the
‘resource curse’ the symptoms of which are inter alia corruption, poverty, economic
mismanagement, political instability, civil war, human rights violations (by both states and
non-state actors), weak governance and armed conflict.4
Section I -- International Law
A. Treaties
(i) International Human Rights Treaties
7.
International human rights treaties are addressed to states to the exclusion of
corporations and other non-state actors. There are many treaties that place positive
obligations on states to regulate corporate activity in a way that protects human rights. If
corporations within a state abuse human rights, it is the states and not the corporation that is
held responsible for the harm caused. Treaty interpretation and implementation is reinforced
by a treaty monitoring body or commission through the issuing of general recommendations
and comments regarding state treaty compliance. These treaty oversight bodies also receive
reports from states on the efforts they have made to give effect to the treaties they have
ratified. They offer advice on the manner in which states can effectively discharge their treaty
responsibilities. It is these bodies, and not international law itself, that have pronounced on
the relationship between corporations and human rights. It is important to stress that these
pronouncements have focused only on state obligations to protect human rights and have
merely called on states to be alert to the fact that corporations can potentially be involved in
human rights violations. The significance of the statements of the treaty monitoring bodies is
that they re-iterate the fact that states are under the obligation to protect human rights, while
recognising that corporations can pose a threat to human rights and directing states to
address this problem.
4
Bannon and Collier (eds) Natural Resources and Violent Conflict (The World Bank, Washington
DC 2003), Cilliers &Dietrich Angola’s War Economy The Role of Oil and Diamonds Institute for Security
Studies 2001; Ross The Natural Resource Curse: How Wealth Can Make You Poor in Bannon and Collier
(eds) natural Resources and Violent Conflict options and Actions The World Bank 2003 at p33; Le Billon
Getting It Done in Bannon and Collier (eds) Natural Resources and Violent Conflict options and Actions
The World Bank 2003 at p33; Collier The Bottom Billion Why the Poorest Countries Are Failing and What
Can Be Done About It (Oxford University Press: Oxford 20070; Shaxon Oil, Corruption and the resource
curse (2007) 83 International Affairs 1123.
2
8.
Among treaty monitoring bodies, the Committee on the Elimination of
Discrimination against Women and the Committee on Economic, Social and Cultural Rights
have been of particular relevance.
The right to health care
9.
Under Article 12 of CEDAW states should ensure that women are given access to
health care services on an equitable basis to men in a manner that accommodates their
pregnancy, post-natal and contraceptive needs. In General Recommendation 24 (1999) the
committee asks states to ensure that private health care institutions and public-private
partnership delivering health care services are bound by this provision. 5 Article 12 of the
ICESCR requires them to take steps to reduce infant mortality rates and protect their
citizens against sickness and disease through the provision of a hygienic environment.
General Comment 14 of the CESCR (2000) has recommended that the privatization of
health care provision does not interfere with these rights. In addition, state protection of this
right requires states to ensure that marketing companies do not sell harmful medicines and
medical equipment which may infringe the right to health. 6 Its General Comment 12 (1999)
directs states to ensure that affordable health care is available to all and not just a select few.
As regards the privatization of health care services, the CECSR has stated that:
‘investments should not disproportionately favor expensive curative health services
which are often accessible only to a small, privileged fraction of the population,
rather than primary and preventive health care benefiting a far larger part of the
population.’7
The right to work
10.
The CESCR’s General Comment 18 (2005) relates to the right to work established in
Article 7 of the ICESCR, which describes state duties pertaining to the right to work. Given
that enterprises, businesses, multinational corporations as well as small, medium and family
enterprises employ people, Article 7(1) directs states to regulate the provision of the right to
work, by these actors. Article 7 requires states to ensure that employers provide decent
working conditions, fair wages paid to men and women on an equitable basis and equal
opportunities to promotion based on competence and seniority. It also provides that
employees should benefit from healthy and safe working conditions and that they should be
given a reasonable period of leave from work. In 2006 General Comment 18 (2006) was
issued in relation to Article 7. The committees comments were to the effect that states that
fail to protect citizens against infringements of their human rights to work by corporations,
would be deemed to have failed in their positive obligations to protect the rights listed in
Article 7 and the ICESCR in its entirety.8
11.
General Comment 25 (2004) was based on Article 4 of CEDAW which recommends
that states legislatively implement measures that promote affirmative action in favour of
women. The Committee’s view was that states should ensure equality between men and
5
6
7
8
General recommendation 24 para’s 14, 15,17 and 30 (d).
Para 35.
Para 19.
Para 31.
3
women by protecting them against discrimination committed by private enterprises.9 The
Committee recommended that states subject private employers to temporary special
measures based on decrees, policy directives and or administrative guidelines formulated and
adopted by national, regional or local executive branches of government. These should have
a positive impact on women’s rights to non- discrimination and should be negotiated on a
voluntary basis by private enterprises and other employers.
Other rights protected by CEDAW and the ICESCR
Right to access to education
12.
The fundamental right to access to education is protected under Article 13 of the
ICESCR. The CESCR, in General Comment 13 (1999) has advised states to ensure that the
use of corporal punishment in both public and private educational facilities is outlawed
because it offends the rights protected in the Universal Declaration of Human Rights.
Water
13.
Articles 11 and 12 of the ICESCR require states to ensure that the conditions in
which their citizens live are continuously improved. According to these Articles, everyone
should have the benefit of inter alia, food, clothing, housing and a hygienic environment.
The CESCR places states under an obligation to protect these human rights. General
comment 15 relates to these Articles and focuses on the role that the right to water plays in
the provision of a hygienic environment. It states the following:
‘The obligation to protect requires State parties to prevent third parties from interfering in any
way with the enjoyment of the right to water. Third parties include individuals, groups,
corporations and other entities as well as agents acting under their authority. The obligation
includes, inter alia, adopting the necessary and effective legislative and other measures to
restrain, for example, third parties from denying equal access to adequate water; and
polluting and inequitably extracting from water resources, including natural sources, wells
and other water distribution systems.’
Economic life
14.
Article 2 (e), CEDAW obliges states to undertake to ‘take all appropriate measures to
eliminate discrimination against women by any person, organization or enterprise.’ Article 13
(b) enjoins states to ensure that banks, mortgage lenders and other credit lending facilities do
not discriminate against women in areas of their economic life.
Dignity
15.
The CEDAW committee’s General Recommendation 19 (1992) requires States to
implement efficient measures that ensure that the media respect and promote respect for
women.10 This includes corporations involved in all sectors of the media and advertising.
16.
Other international human rights law treaties and committee commentaries that have
focused on the state responsibility for human rights are listed in Table 1 below:
Treaty
9
10
Right affected
Reference to corporations in relevant
General Comment 25 2004 Para 7.
Paragraph 24 (d).
4
International Covenant on the Elimination
of all forms of Racial Discrimination
Article 2 (1) (d) – States are to condemn all
forms of racial discrimination against all
persons including groups of persons or
organizations through legislation.
Article 5 (f) – States should guarantee that
all races are able to gain access to all forms
of transport, hotels, restaurants, cafes and
theatres.
International Convention on the Rights of
the Child and its
Optional Protocol
Article 3 (1) – States should ensure that
child health care services provided by
institutions conform to authorized health
care standards.
Article 17 (a) States should ensure that the
mass media exposes children to information
that promotes their social, spiritual, physical
and moral well-being.
Article 29 – States should ensure that
educational institutions develop every
child’s personality, talents and mental and
physical abilities in a manner that
maximizes their fullest potential. Education
in such institutions should be based on the
personality, culture and nationality of all
children. Children should be taught to
respect sexual equality, religious and
national tolerance while respecting the
rights and fundamental freedoms in the UN
Charter.
Optional Protocol Article 3, 4 – Each
state party shall hold legal persons who
violate the right to (Article 3 (1)) … such
liability of legal persons may be criminal,
civil or administrative. These requirements
apply even if the offences have been
committed transnationally on an individual
or organized basis.
General
Recommendations
(GR)
and/or General Comments (GC) of
treaty monitoring bodies.
GR 2311 The Committee is conscious that
some commercial companies and state
enterprises infringe the rights of indigenous
people to their land and resources, culture
and historical identity. States should ensure
that these communities enjoy sustainable
and economic development, protect their
rights to own, develop, control and use
their communal lands, territories and
resources.
GC112 – Governments are obligated by the
Convention, pursuant to article 17 (a), to
take all appropriate steps to "encourage the
mass media to disseminate information and
material of social and cultural benefit to the
child."
GC4 – States should prohibit marketing
companies from promoting unhealthy
products and lifestyles (e.g. alcohol,
tobacco) which harm the health and
development of children.13
GC7 – States should ensure that companies
in the agricultural and entertainment
industries (television, film, media and
advertising) do not involve children in
harmful work.14
GC25 – States should ensure that non-State
providers of children’s rights operate in
accordance with the Convention on the
Rights of the Child. The private sector
should always act in the best interests of the
child and should be subject to rigorous
monitoring by States.15
International Convention on the Protection
of People with Disabilities
Article 9 (1) – States should ensure that
corporations in the transporation and
information
technology
industries
implement measures to ensure the
independence and equality of disabled
persons. Buildings, roads, transportation
and other indoor and outdoor facilities,
including schools, housing, medical facilities
and workplaces should be accessible to
disabled persons.
CESCR GC23 – States must ensure that
members of the private sector private
employers, private suppliers of goods and
services, and other non-public entities
involved in the provision of public services
do not infringe the rights the disabled.
Both legislative and non-legislative means
should be implemented in this regard.
International Convention on Civil and
Political Rights
Article 17 (1) – Every person has the right
to be protected against arbitrary or unlawful
interference with his privacy, family, home
or correspondence as well as against
Human Rights Committee GC31 –
Article 2 (1) of the ICCPR places states
under a positive obligation to ensure nondiscrimination on the basis of race, color,
11
12
13
14
15
Para 3 and 5.
Para 21.
Para 25.
Para 36.
Para 42 (d).
5
unlawful attacks
reputation.
on
his
honor
and
sex, language, religion, political or other
opinion, national or social origin, property,
birth or other status. States should ensure
that corporations do not infringe these
rights. State failure to do so with due
diligence may lead to state responsibility for
failure to prevent, punish, investigate or
redress the harm caused by such acts by
private persons or entities. No corporation
should be allowed to use torture or cruel,
inhuman or degrading treatment or
punishment on others within their power.16
Human Rights Committee GC28 States
should ensure that women are not
discriminated against by private parties in
the areas of work, education, the provision
of accommodation, goods and services.17
(b) Treaties of the International Labour Organisation (ILO)
17.
ILO conventions regulate the relationship between employees and their employers.
Several of these conventions have a direct bearing on private employers, but apply to
corporations indirectly. States are expected to ensure that employees enjoy their rights to
form and join trade unions (Convention 98 of 1949), are not subject to forced and
compulsory labour (Convention 105 of 1957) and are not exposed to unhealthy and unsafe
working conditions (Convention 155 of 1981) and that children’s labour rights are not
abused (Conventions 138 of 1973 and 182 of 1999).
(c) Other Treaties
18.
The UN Convention Against Transnational Organised Crime (2000) is aimed at
preventing corrupt relationships between legal persons and public officials. Corruption is
criminalised in article 8 which prohibits the offering of bribes to public officials by entities.
In Article 10, legal persons should be placed under criminal, civil and administrative liability
for corruption. ‘Effective, proportionate and dissuasive criminal and non-criminal sanctions,
including monetary sanctions’ should be imposed on legal persons who are involved in
corruption.18 Under Article 12, the proceeds of corruption should be seized by states. In
addition, states should empower courts and other competent authorities to obtain financial
and commercial records from banks and other institutions which are placed under strict
obligations to provide this information.
19.
The Council of Europe’s Convention on Civil Liability for Damage Resulting
from Activities Dangerous to the Environment was enacted in 1993. It applies to the
activities of persons which include corporations governed under private law.19 Any
16
17
18
19
2004 para 8.
2000 para 31.
Article 8 (4).
Article 2.
6
corporation which handles toxic substances in a way which results in harm to man and the
environment is to be held liable under civil law for such damage.20
(d) Conclusions
20.
The essential point to be made in regard to the treaty law canvassed above is that the
obligation to prevent corporations from breaching human rights is placed upon states to the
exclusion of corporations and this is the status of international regarding corporate
complicity in human rights violations. If states comply with these treaties and corporations
are involved in human rights abuse, this does not constitute a breach of the treaty. Also,
none of the treaties contemplate the fact that some states place corporations within
dangerously close proximity to human rights violations committed by states themselves. This
reflects a major weakness in the current state of international law as expressed in treaties.
Even if a treaty or a protocol allowing individuals to make direct complaints against
corporations were to be enacted, it would take a long time to mature into state practice and
customary international law. It is also difficult to imagine how it would be administered and
effectively enforced. Treaty monitoring bodies have done well to issue the comments they
have so far, but there are many drawbacks that impede their efforts as far as existing treaties
are concerned.21
B. Judicial Opinions on obligations to protect human rights against
infringement by corporations
21.
Most of the judicial pronouncements on the relationship between state responsibility
under international law, corporations and human rights have been made in regional human
rights courts which supervise this relationship. The Inter-American Court of Human Rights,
the European Court of Human Rights, the Inter-African Court of Human Rights and the
UN Human Rights Commission are examples. They have emphasised that states are under
positive obligations to ensure that corporations within their territories do not infringe human
rights. According to these courts, states should exercise due diligence in regulating and
monitoring corporate activity in favour of human rights. The test for due diligence was
formulated in Velasquez-Rodriguez v. Honduras22 which held that a State could be responsible
for a private act ‘because of the lack of due diligence to prevent the violation or to respond
to it.’ It was further held that the State should ‘take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious investigation of
violations committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim the adequate compensation.’23 One case
from each regional human rights body will be considered briefly: further examples are
tabulated in Table 2 below.
European Court of Human Rights
20
Article 6.
P. Alston and J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring,
(Cambridge: Cambridge University Press, 2000); Goldsmith J.L and Posner E. The Limits of International
Law (Oxford University Press: Oxford 2005) 120.
.
22
[1988] Inter-American Court of Human Rights (ser C) No 4.
23
Ibid.
21
7
X and Y v. The Netherlands24
22.
This case was brought by a Mr X and his 16 year old daughter Y who was mentally ill
and had been sexually abused in a private home for the mentally ill. The father originally
instituted proceedings against the rapist on behalf of his daughter. The Netherlands Criminal
Code contained no specific provision that criminalised sexual intercourse with a 16 year old
mentally handicapped girl in a private mental home. The father took the case to the ECHR
claiming that his daughter’s right not to be subjected to cruel, inhuman and degrading
treatment in the ECHR (Article 3) and her right to privacy (Article 8) had been infringed by
the rapist in the private care home. The court expressed the opinion that by failing to enact
legislation accommodating the circumstances of the case, the Netherlands had failed to
discharge its positive obligations regarding Articles 3 and 8 of the ECHR which required the
state to regulate horizontal relationships involving private care homes and individuals.25
Inter-American Court of Human Rights
Awas Tingni Mayagna (Sumo) Indigenous Community v. The Republic of Nicaragua26
23.
The plaintiffs alleged that the government of Nicaragua had infringed their right to
the use and enjoyment of ancestral lands. This was because it had awarded a 30 year
concession for the construction of a road and timber exploitation, to a Korean company, the
Caribe. S.A (SOLCARSA). They claimed that the commercial activities would result in
irreparable damage to their indigenous land. The court held that:
‘the State has violated the right of the members of the Mayagna Awas Tingni Community to
the use and enjoyment of their property, and that it has granted concessions to third parties
to utilize the property and resources located in an area which could correspond, fully or in
part, to the lands which must be delimited, demarcated, and titled.’27
The African Commission
Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria 28
24.
The Centre for Economic and Social Rights and the Social and Economic Rights
Action Centre brought a case against the Nigerian government of behalf of the people of the
Ogoni region of Nigeria. They alleged that two companies (Shell Petroleum Development
Corporation and the Nigerian National Petroleum Corporation) that had formed a joint
venture to exploit oil reserves in the Ogoni region of Nigeria, were depositing toxic waste in
the region. This was linked to a violation of the right to health as well as the right to food.
The African Commission found that the government of Nigeria had failed to exercise due
24
http://www.juridischeuitspraken.nl/19850326EHRMXenYtegenNederland.pdf.
Para 23 – ‘The Court recalls that although the object of Article 8 (art. 8) is essentially that of
protecting the individual against arbitrary interference by the public authorities, it does not merely compel
the State to abstain from such interference: in addition to this primarily negative undertaking, there may be
positive obligations inherent in an effective respect for private or family life. These obligations may
involve the adoption of measures designed to secure respect for private life even in the sphere of the
relations of individuals between themselves.’
26
< http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html>.
27
Para 153.
28
African Commission, Communication No 155/96 (2001).
25
8
diligence in discharging its positive duties to protect these rights because it failed to ensure
that the private companies did not infringe human rights.29
The UN Human Rights Committee
25.
In addition to issuing several General Comments on state responsibility to protect
civil and political rights, the HRC also decided on some cases regarding the failure of states
to ensure that corporate activity does not have a negative impact on the enjoyment of
human rights.
Francis Hopu and Tepoaitu Bessert v. France30
26.
In this case, the plaintiffs who claimed that it violated their ICCPR rights to life and
to enjoy being part of a family sued France. These claims were based on the fact that the
French government had awarded permission to a private company to build a luxury hotel on
their ancestral burial ground, within proximity to a fishing ground which provided them with
a means of livelihood. The committee concluded that:
‘the construction of a hotel complex on the authors' ancestral burial grounds did interfere
with their right to family and privacy. The State party has not shown that this interference
was reasonable in the circumstances, and nothing in the information before the Committee
shows that the State party duly took into account the importance of the burial grounds for
the authors, when it decided to lease the site for the building of a hotel complex. The
Committee concludes that there has been an arbitrary interference with the authors' right to
family and privacy, in violation of articles 17, paragraph 1, and 23, paragraph 1.’
27.
Table 2 below reflects some of the other cases involving corporations and human
rights that have been adjudicated upon by the regional bodies dealt with above.
Table 2
Court/Tribunal
Inter-American Court of Human
Rights
European Court of Human Rights
African Commission on Human
and Peoples Rights
Case


Guatemala v Coca-Cola
Yanomami v Brazil31







Ireland v UK (1976)32
Van der Mussele v Belgium33
Costello-Roberts v United Kingdom34
Lopez Ostra v Spain35
Hatton & Others v the United Kingdom36
Guerra and Others v Italy37
Commission Nationale des Droits de l'Homme et
des Libertes v Chad38
29
Ibid, para 59.
http://humanrights.law.monash.edu.au/undocs/549-1993.html.
31
http://www.humanrights.is/the-human-rightsrpoject/humanrightscasesandmaterials/cases/regionalcases/interamericancommission/nr/789.
32
Appl. N0. 5310/71, 25 January 1976, Series B. Vol. 23-I (1980) 150.
33
Judgment of 23 November 1983, Series A Vol 70 150.
34
Judgment of 25 March 1993, Series A. Vol. 172 58.
35
Judgment of 9 December 1994, series A Vol, 303-C 151-152, 164.
36
Appl. 36022/97, Judgement of 2 October 2001 153-154, 164.
37
Judgment of 19 February 1998, Reports of Judgements and decisions 1998-I, No. 64 152-153,
164.
30
9
Human Rights Commission


Ilmari Länsman et al v Finland39
Chief Bernard Ominayak and the Lubicon Lake
Band v Canada40
28.
As with treaty law, the main focus of these opinions is on states. These bodies have
simply issued declaratory orders stressing existing state obligations.
C. Conclusions
29.
International law in the form of treaty law and judicial opinion expressed by regional
human rights courts applies only to states. Corporations are separated from international law
by the state which is responsible for regulating their conduct. At worst (from the
corporation’s point of view) and at best (from the victims point of view) a treaty monitoring
body or regional human rights court can declare that states are under a positive duty to
discharge as regards corporations and human rights. Corporations that may be linked to
human rights violations suffer only reputational damage resulting from human rights
infringements. Victims are left without any tangible remedies.
Section II -- The Aliens Tort Claims Act
Doe v. Unocal and Presbyterian Church of Sudan v. Talisman Energy Inc.
30.
The ATCA derives its origins from the Judiciary Act of 1789 which gives federal
courts of the United States of America original jurisdiction over civil actions brought by
aliens (non-Americans) for violations of international law. Historically, it was enacted to
apply to actions arising as a result of piracy and maritime disputes taking place on the high
seas, offences against the law of nations as well as all cases affecting foreign ambassadors,
public ministers and consuls.
31.
The ATCA was originally expressed in the fourth clause of §9 of the Judiciary Act
which empowered the district courts of the USA to ‘have cognizance concurrent with the
courts of several states, or the circuit courts, as the case may be, of all causes where an alien
sues for a tort only in violation of the law of nations or a treaty of the United States.’ 41 As a
result of several revisions of this wording, and the present day ATCA which is now
expressed in §1350 of Title 28 of the United States Code now states as follows:
‘The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.’42
32.
Prior to 1980, the ATCA was used infrequently. It is claimed that between 1789 and
1980 it was envoked only 21 times.43 However, since the case of Filàrtiga v. Peńa-Irala44 the
38
http://www1.umn.edu/humanrts/africa/comcases/74-92.html.
http://www.unhchr.ch/tbs/doc.nsf/0/7e86ee6323192d2f802566e30034e775?Opendocument.
40
http://www.unhchr.ch/tbs/doc.nsf/0/c316bb134879a76fc125696f0053d379?Opendocument.
41
See An Act to establish the Judicial Courts of the United States, 1789, c.20, 1 Stat. 73.
42
1878, Rev. Stat., §563.
43
Randall, K. ‘Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort
Statute’ (1985) 18 N.Y.U.J Int’l L & Pol. 4.
39
10
ATCA has been the basis of many claims against non-state actors, by aliens. Of interest to
this discussion are the ATCA based cases that have been brought against corporations.
Examples of such cases are Alomang v. Freeport-McMoran45 , Beanal v. Freeport-McMoran46, Bigio
v. Coca-Cola47, Bowoto v. Chevron Texaco48, In re Union Carbide Corp Gas Plant Disaster at Bhopal49,
Khulumani et al v. Barclays National Bank et al50, Doe v. the Gap et al51, Wiwa v. Royal Dutch Shell52
and Sarei v. Rio Tinto53.
33.
The facts asserted in these cases have highlighted the role played by globalisation and
the increase in international trade and investment in many parts of the world, in providing
the conditions for a clash between corporate profit making goals and the need to respect
human rights and the environment. Many of these cases have involved multinational
corporations who have been accused of direct, indirect, silent and beneficial complicity in
human rights violations. Corporations have been linked to these abuses often, but not
always, as a result of joint venture partnerships they have entered into with state and or nonstate actors such as other corporations or armed groups that have directly perpetrated
human rights abuses. By far, most ATCA litigation against corporations has been initiated
against those in the extractive industry.
34.
Doe v. Unocal and Presbyterian Church of Sudan v. Talisman Inc are both examples of cases
that have been based on the ATCA. The allegations in both cases involve the abuse of
human rights by a principal perpetrator in whose actions both Unocal and Talisman Energy
Inc were said to have been complicit. These cases are both useful in providing an
understanding of the concept of corporate complicity in human rights violations. A
summary of both cases now follows.
I. Doe v. Unocal54
35.
The Union Oil Company of California, a Delaware (USA) registered corporation in
the oil and gas industry and its subsidiary Unocal Corporation formed the Unocal Myanmar
offshore Company (Unocal). Unocal entered into a production sharing agreement with Total
S.A. and the Myanmar Oil and Gas Enterprise (Myanmar Oil), established by the Myanmar
military. Their agreement was to transport the gas reserves to Thailand through a pipeline
(the Yadana pipeline). This pipeline passed thought the Tennassriem region of Mayanmar
which bordered the Andaman Sea to the West and Thailiand to the East. Unocal acquired a
28% share in this project and it was agreed by the parties that the Myanmar military would
provide security and other services for the project.55
44
45
46
47
48
49
50
51
52
53
54
55
630 F. 2d 876 (2d Cir 1980).
811 So 2d 98 (LA App 2002).
969 F Supp 362 (ED LA 1997.
239 F 3d 440 (2d Cir 2000).
2004 US Dist LEXIS 44603 (ND, Cal 2004).
634 Supp 842.
Case CV 25952 (EDNY 2002).
No. CV-01-0031, 2001 WL 1842389 (CD Cal 2001).
22 F 3d 88 (2d Cir 2000).
221 F Supp 2d 1116 (CD Cal 2002).
395 F,3d 932 (9th Cir. 2002)
937.
11
36.
The plaintiffs in this case were a group of people from the Tenasserim region of
Myanmar who alleged that the Myanmar military perpetrated the crimes of forced labour,
murder, rape and torture to support the construction of the Yadana pipeline. They claimed
that Unocal was complicit in these human rights violations.56 Basing their claim on the
ATCA, they instituted proceedings in the Southern District of New York court. They
alleged that Unocal was in possession of knowledge that the military had a history of abusing
human rights before it entered into the joint venture and that it was carrying out these
abusive practices during the subsistence of the Yadana pipeline project. On this basis, they
asked the court to find Unocal guilty as an aider and abettor of these crimes.
37.
The legal issue considered by the court was whether the alleged facts showed
evidence of this knowledge and if so whether Unocal could be held liable for aiding and
abetting and being complicit in the activities of the military.
Relationship between Unocal and the military
38.The court heard that Unocal had confirmed that it entered into a Production Sharing
Agreement stating that it would benefit from security services provided by the Myanmar
military.57 It was also in possession of memorandum which confirmed that the military
would station ‘four battalions of 600 men each’ to secure the corridor of the Yadana pipeline
and that 50 soldiers would guard survey teams.58 In addition, the military built helipads and
facilitated the clearing of roads along the pipeline route. An official of Unocal had also
confirmed this state of affairs to the US embassy in Rangoon.59 He had informed the
embassy that Unocal and Total made use of ‘[aerial] photos, precision surveys, and
topography maps] to show the [Myanmar] military were they need helipads built and facilities
secured…Totals security officers meet with military counterparts to inform them of the next
day’s activities so that soldiers can ensure the area is secure and guard the work perimeter
while the survey team goes about its business.’60 There was also evidence that daily meetings
between the military and army commanders and Unocal officials were taking place.61 A
briefing book prepared for Unocal’s senior executives also corroborated the fact that the
joint venture partners were paying villagers who were hired by the military to assist with the
project, in cash and in food rations.62
Knowledge that the military was abusing human rights during the project
39.
Before investing in the project Unocal was allegedly aware of the abusive tendencies
of the Myanmar military. It hired consultants who informed it that the military might subject
the local population to forced labour and other violations to benefit the project.63 The
Control Risks Group was contracted by Unocal to produce a report on the human rights
situation in the pipeline area. The report stated that ‘[t]hroughout Burma the government
56
57
58
59
60
61
62
63
936.
938.
938.
Ibid.
939.
Id.
Ibid.
940.
12
habitually makes use of forced labour to construct roads..in such circumstances UNOCAL
and its partners will have little freedom to manoeuvre.’64
40.
The Vice president of Unocal made a deposition stating that ‘the option of having
the [Myanmar] [M]ilitary provide protection for the pipeline construction and operation of it
would be that they might proceed in the manner that would be out of control and not be in
a manner that we would like to see them proceed, I mean going to excess.’ 65 The same
official also stated to human rights organisations in Los Angeles that ‘[p]eople are
threatening physical damage to the pipeline..if you threaten the pipeline there’s gonna be
more military.’66 He also stated that ‘[i]f forced labor goes hand in glove with the military yes there will
be more forced labor.’67
41.
Another Unocal executive stated the following in response to reports by human
rights organisations that highlighted the use of forced labour by the military: ‘[o]ur assertion
that [the Myamnmar military] has not expanded and amplified its usual methods around the
pipeline on our behalf may not withstand much scrutiny.’68
42.
The court was shown evidence of an internal email communication between Unocal
and Total executives concerning allegations of the forced movement of villagers by the
military in connection with the pipeline. 69 The official from Total stated that:
‘By stating that I could not guarantee that the army is not using forced labour, I certainly
imply that they might (and they might) but I am saying that we do not have to monitor the
army’s behaviour: we have our responsibilities; they have their responsibilities; and we refuse
to be pushed into assuming more than what we can really guarantee. About forced labour
used by the troops assigned to provide security on our pipeline project, let us admit between
Unocal and Total that we might be in a grey zone.
43.
There was also evidence showing that Total acknowledged that forced labour was in
fact occurring and that some workers and had been compensated.70
44.
Before deciding on the merits of the case, the court considered the question of
whether domestic law or the ATCA should apply in deciding its outcome.
Choice of law– International Law
45.
The court opined that international law and not domestic law was the appropriate
body of law to apply in this case. It was easily ascertainable through consulting ‘the works of
jurists, writing professedly on public law; or by the general usage and practice of nations; or
by judicial decisions recognising and enforcing that law.’71 In this regard, Pregerson J cited the use of
international law in other ATCA cases such as Wiwa v. Royal Dutch Petroleum Company.72 He
64
65
66
67
68
69
70
71
72
Ibid.
940-41.
941.
Ibid.
Ibid.
942.
Ibid.
948 para 7,8 citing Filartiga v. Pena-Irala, 630 F. “d 876, 880 (2d Cir. 1980).
226 F. 3d 88, 105 n.12 (2d Cir. 2000).
13
opined that international law better serves the needs of the international system in such cases
as the present.
46.
In Pregerson J’s opinion, the ATCA provided remedies for torts committed in
violation of international law rather than violations of domestic law. He stated that a court
assessing the liability of a private actor under the ATCA had to ask 2 threshold questions.
The first regarded whether or not the alleged tort constituted an act that was a violation of
the norms of international law. The second was whether or not an act of state was required
before the private actor could be held liable for the tort in question.
47.
Judge Pregerson stated that the ATCA provides a cause of action where the alleged
conduct is in violation of a specific, universal and obligatory norm of the law of nations. The
relevant norms of international law in this case related to forced labour, murder, rape and
torture, Judge Pregerson confirmed that these were violations of international law.73 He
stated that they were considered violations of the jus cogens rule which states that there are
principles of international law which are so fundamental that no nation may ignore them.74
His judgement stressed the point that even if a violation of international law is not a jus
cogens violation, it is actionable under the ATCA – what was required was that the violation
relates to specific, universal and obligatory international norms. Thus a jus cogens violation is
sufficient but not necessary for the success of a claim under ATCA.75
48.
In answering the question of whether or not state action was required for a private
person to be liable under the ACTA, Judge Pregerson relied on the dictum of Judge
Edwards in Tel-Oren v Libyan Arab Republic which stated that:
‘while most crimes require state action for ATCA liability to attach, there are a ‘handful of
crimes,’ including slave trading, ‘to which the law of nations attributes individual liability,
such that state action is not required.76
49.
He also cited with agreement, the view expressed in the Kadic case which held that
genocide and crimes against humanity such as slave trading do not require state action in
order for liability to attach.77 The same case was relied on as authority for the fact that
individuals can be liable for rape, torture and summary execution committed in isolation and
in pursuit of the crimes of genocide, slave trading or war crimes.78
73
944 citing United States v Matta-Ballesteros, 71 F. 3d 754, 764 n.5 (9 th Cir.119);
Farmer v. Brennan 511 US 825, 852, 854, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Kadic
v.Karadzic, 70 F.3d 232, 242 (2d. Cir.1995), In re Extradition of Suarez-Mason, 694 F. Supp. 676, 682
(N.D. Cal. 1988), Eveyn Mary Aswad, Torture by Means of Rape, 84 Geo. L.J. 1913 (1996), Universal
Declaration of Human Rights, G.A. Res. 217 (A) III (1948), Agreement for the Prosecution and
Punishment of the War Criminals of the European Axis, and Charter of the International Military Tribunal,
Aug 8, 1945, art. 6, 82 U.N.T.S. 280. See also 946-947.
75
945 Note 15.
76
Ibid at 794-95.
77
Tadic 70 F.3d at 242-43.
78
Ibid.
74
14
Liability for Aiding and Abetting the Violation of International Law
Actus Reus
50.
In agreement with cases such as Mehinovic v Vuckovic79 the court chose to derive the
actus reus standard for aiding and abetting violations of international law from the
international criminal law jurisprudence of the International Criminal Tribunal’s for
Yugoslavia and Rwanda. This was because these tribunals had actively engaged with the
accomplice liability of private actors. The principles laid down by these tribunals, according
to Judge Pregerson, were instrumental in ascertaining the norms of international law as they
pertain to ATCA. 80
51.
The case of Prosecutor v Furundzija81 was relied on by the majority to define the guilty
act involved in the aiding and abetting of criminal activity. This was defined as knowing and
practical assistance or encouragement that has a substantial effect on the perpetration of the crime. 82 Such
assistance, according to Furundzija, need not constitute the conditio sine qua non or an
indispensable element of the crime. What was required was that the ‘the acts of the
accomplice make a significant difference to the commission of the criminal act by the
principal.’83 The court in Furundzija relied on the reasoning in the Tadic case which held that
the role assumed by the accomplice should have such a substantial effect on the
commission of the crime which most probably would not have occurred in the same way it
did without the support of the accomplice.84
52.
The court aquo also relied on the ICTR case of Prosecutor v Musema in which it was
held that the actus reus of aiding and abetting criminal activity was present in ‘all acts of
assistance in the form of either physical or moral support that substantially contribute to the
commission of the crime.’85
53.
On the evidence, the majority concluded that a reasonable fact finder would
conclude that the conduct of Unocal met this standard.86
The mental element (Mens rea) of aiding and abetting criminal activity.87
54.
Judge Pregerson again relied on the dictum in Furundzija for an explanation of the
nature of the mens rea or mental element of the crime of aiding and abetting human rights
violations. Furundzija established that this consists in the possession of actual, constructive or
reasonable knowledge that the action of the accomplice would provide assistance to the principal
perpetrator in the commission of the crime.88 Judge Pregerson qualified this by stating that
79
198 F. Supp. 2d 1322, (ND Ga. 2002).
198 F. Supp. 2d 1322 (N.D. Ga. 2002).
81
IT-95-17/1T (Dec. 10, 1998) reprinted in 38 I.L.M. 317 (1999).
82
950 Furundzija at 233 Italics added for emphasis.
83
950., Furindzija at ¶129.
84
Prosecutor v. Tadic, ICTY-94-1, 688 (May 7, 1997) at 688.
85
950 Prosecutor v Musema ICTR-96-1-T (Jan 27 2000) 126.
86
947. Italics added for emphasis.
87
Mens rea refers to the guilty mental state of a crime. It comes from the Latin phrase actus non facit
reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also
guilty".
88
950 Furudnzija 245.
80
15
the accomplice was not required to share the intention of the perpetrator, neither was the
accomplice required to have knowledge of the precise crime that the principal perpetrator
would commit. He stated that it was sufficient that the accomplice possessed an awareness
that the perpetrator would probably commit one of a number of crimes. In the event that
these are actually perpetrated, the accomplice would be taken to have possessed the
intention to facilitate the crime in question. Under such circumstances, the accomplice is
guilty as an aider and abetter.89
55.
The Musema case was also relied upon for a definition of the mens rea requirement. It
stated that an accomplice is guilty as an aider and abettor of a crime if the accused possessed
knowledge that the assistance rendered would lead to the commission of the crime in
question. According to Musema, the accomplice did not need to possess the intention to
commit the offence, it was sufficient that the accomplice knew that the principal perpetrator
of the crime posessed the intention required for commission of the offence.90
Factual Analysis
56.
Although it found that Unocal was not guilty of accomplice liability as regards the
crime of torture, the court found that it would be reasonable to conclude that Unocal aided
and abetted the commission of murder, rape and forced labour. This was based largely on
the fact that:
a. Unocal knew that security services would be provided by the military
b. Unocal knew or should have known that there was a probability that the military
would commit human rights violations.91
c. the military was in fact committing such violations.
d. Unocal gave practical assistance to the military in carrying out its abusive activities.
This constituted of ‘hiring the Myanmar military to provide security and build
infrastructure alone the pipeline route in exchange for money or food. The practical
assistance also took the form of using photo’s, surveys, and maps in daily meetings
to show the Myanmar Military where to provide security and build infrastructure.’92
e. This assistance ‘had a ‘substantial effect’ on the perpetration of forced labour, which
‘most probably would not have occurred in the same way’ without someone
showing them where to do it.’93 The court made reference to the statements of
representatives of Unocal stated above.
f. The evidence showed that ‘Unocal knew that forced labour was being utilised and
that Joint Venturer’s benefited from the practice.’94
g. Unocal ‘knew or should reasonably have known that its conduct-including the
payments and instructions where to provide security and build infrastructure-would
assist or encourage the Myanmar Military to subject Plaintiffs to forced labour.’95
89
90
91
92
93
94
95
Ibid..
951 Musema at 180, 182.
956.
952.
952-53.
953.
Ibid.
16
Conclusion
57.
The court was of the opinion that the knowledge that Unocal possessed or should
reasonably have posessed in relation to the activities of the military, was sufficient to form
the mens rea for the aiding and abetting of the crimes of the military. The payments and
instructions issued by Unocal to the military provided the further evidence needed to impute
mens rea to Unocal.
58.
The court found that a reasonable fact finder could conclude that Unocal’s alleged
conduct satisfied the requirements for the actus reus of aiding and abetting the military in its
criminal enterprise. This was because it gave ‘practical assistance or encouragement which
has a substantial effect on the perpetration of the crime of, in this case, forced labor. Forced
labour was used in the construction of the pipeline which was used by Unocal and Total
officials who visited the pipeline during its planning phases and to ferry them and materials
to the construction site. The forced labour of local villagers was used.’96
59.
The court concluded that the hiring of the military for the purposes of providing
security and building the pipeline in exchange for money or food and the use of
photographs, surveys and maps in daily meetings to show the military were to provide
security and build infrastructure, also formed part of the actus reus of Unocal’s accomplice
liability.
60.
Unocal’s actions, according to the majority judgement, had a substantial effect on the
perpetration of forced labour which ‘probably would not have occurred in the same way’
had it not taken part in the activities surrounding the forced labour.97
Concurring judgement
61.
Judge Reinhardt agreed with the majority that there was a high probability that
Unocal aided and abetted the crime of forced labour against the plaintiffs. He disagreed with
the majority judgement in so far as it relied on International Law and the dicta of the
International Criminals Tribunals for Yugoslavia and Rwanda. He opined that international
criminal law is still evolving and the principles from the ad hoc tribunals relied upon by the
majority were nascent having only recently been adopted. Instead, his opinion was that there
was sufficient jurisprudence in federal common law to rely on to found liability in this case.
He expressed the view that the plaintiffs could have founded their claim against Unocal on
the laws of agency, joint venture, liability or the law regarding reckless disregard.
‘The fact that some of the issues here may have taken place aboard does not militate in
favour of applying international law; trans-national matters are litigated in federal court,
using federal legal standards, more and more frequently as the pace of globalisation grows
ever more rapid. In my view courts should not substitute international law principles for
established federal common law or other domestic law.
The Yugoslav tribunals moral support standard is far from a settled rule, it is a novel
standard that has been applied by just 2 ad hoc criminal tribunals. It does not constitute
customary international law and thus we are not free to apply it as part of federal common
law. The rule on aiding and abetting provided by the Furundzija case is far too uncertain and
96
97
Ibid.
Tadic at 688.
17
inchoate a rule for us to adopt without further elaboration as to its scope by international
jurists.’98
Joint venture liability
62.
Reinhardt J was of the opinion that under both federal and international law, Unocal
could have been held responsible for the actions of its joint venture partner, the military.
This was subject to the availability of proof that human rights violations actually occurred.
He held that:
‘a reasonable jury could conclude that Unocal freely elected to participate in a profit-making
venture in conjunction with an oppressive military regime-s regime that had a lengthy record
of instating forced labor, including child labor. Evidence in the records states that Unocal
would share revenues and costs of both the drilling and transportation components of the
Yadana project. In view of the above I believe that plaintiffs ought to proceed to trial on
their claim of joint venture liability.’99
Agency liability
63.
Judge Reinhardt’s opinion was that Unocal had formed an agency relationship with
the military, the terms under which the military. Evidence of such a relationship could be
express of implied and it could be inferred from surrounding circumstances. The judge cited
a memorandum from Unocal stating the following:
‘according to our contract, the government is responsible for protecting the pipeline. There is
military protection for the pipeline and when we have work to do along the pipeline that requires
security, the military people will, as a matter of course be nearby.’100
64.
He also based his opinion on the fact that Unocal officials asked for military
batallions to carry out several tasks such as the construction of helipads for the use of
Unocal’s corporate executives. Unocal also held daily meetings with military personnel so as
to issue instructions to the military regarding infrastructure development projects connected
to the joint venture. According to the judge
‘it is not essential that a formal contract have existed between Unocal and the military to be
held liable for the governments actions under an agency theory. Even if there was such a
contract, a jury might have considerable difficulty in accepting Unocal’s denial of an agency
relationship.’101
Reckless disregard
65.
Judge Reinhardt stated that there were two variants of reckless disregard. First, under
traditional civil law a person who is under a duty to act in circumstances were there is an
unjustifiably high risk of danger which is known or should reasonably be known, fails to act
to prevent such danger. He referred to the second form of reckless disregard as wilfull
98
99
100
101
969.
670
Ibid.
Id.
18
recklessness. He stated that it existed in a case were a person is aware of a substantial risk
but fails to prevent it from occurring.
Conclusion
66.
Judge Reinhardt concluded that:
‘I see no reason why the general principle that liability arises for one party’s conscious
disregard of unreasonable risks to another should not apply when a defendant consciously
disregards the risks that arise from its decision to use the services of an entity that it knows
or ought to know is likely to cause harm to another party. Proof of even wilful recklessness
does not require proof of intent, it requires only that a defendant have acted in conscious
disregard of known dangers’102
Commentary
67.
The opinions expressed by both Judges Reihardt and Pregerson provide valuable
insight into the burden of proof needed in a case involving a corporations complicity in
violations carried out by state actors and their organs.
68.
Although the majority judgement is the more celebrated of the two, the minority
judgement seems to be the more appropriate one when applied to the facts. Unocal seems to
have benefited more from the activities of the military than to have aided and abetted them.
The military acted as recruitment agency for forced and conscripted labour for the benefit of
Unocal and its partners. Unocal acted as a principal that gave the military instructions on
how and where this labour was to be utilised. The minority judgement which focused on
agency liability and reckless disregard on the part of Unocal seems to have been more
appropriate.
69.
On the other hand, the majority’s use of the ATCA and international criminal law
jurisprudence to found Unocal’s is preferable because of its broader focus and compatibility
with cases that have an international character and are based on the violation of international
law. The minority judgement is less favourable because it relies on the use of federal USA
law which may not always be applicable to cases that have an international character.
Presbyterian Church of Sudan v. Talisman Energy Inc.103
70.
In 1993, the government of Sudan entered into an agreement with the Canadian
registered State Petroleum Company (SPC) under which SPC would extract oil from
Sudanese territory referred to as Zones 1, 2 and 4. In 1994 SPC was acquired by Arakis of
which it became a subsidiary. The government of Sudan in 1996 alleged that SPC was not
fully exploring its oil production rights and threatened to revoke them. In the same year,
Arakis invited 3 state owned companies from China, Malaysia and Sudan as partners to assist
it in increasing oil exploration in the Arakis concession area. Together they formed the
Greater Nile Petroleum Operating Company (GNPOC). Arakis, CNPC (China), Petronas
(Malaysia) and Petronas (Sudan) owned 25%, 40%, 30%, 5% of the GNPOC shares
respectively. It was GNPOC which entered into an agreement with the government of
102
103
Doe v Unocal at 975.
453 F.Supp.2d 633 (S.D.N.Y. 2006)
19
Sudan under which the government, through its military troops would secure the operations
at zones 1, 2 and 4.
71.
In 1998 Arakis’ shares in GNPOC were acquired by Talisman Energy Inc, a
Canadian company registered in Calgary. Talisman then transferred these shares to one of
its subsidiaries, a company called SPC BV. With this transfer, it formed the Talisman Greater
Nile BV (TGNBV) corporation which was in a relationship with GNPOC. TGNVB did not
carry out any oil operations in Sudan, oil exploration and production work was carried out
by GNPOC.
72.
The plaintiffs in this case were non-Muslim Sudanese men and women from the
Southern Sudanese region in which GNPOC carried out operations. They alleged that:
‘Talisman violated the customary international law relating to genocide, torture, war crimes,
crimes against humanity and the treatment of ethnic and religious minorities and their
property, and that Talisman conspired with, aided and abetted its sole co-defendant, the
Republic of Sudan, to commit those same violations of customary international law.’
73.
The court had to consider whether Talisman was guilty first, of the act of conspiracy
to commit genocide and second the crime of aiding and abetting human rights violations
listed above.
Security provision by the military of Sudan
74.
As mentioned earlier, before Talisman joined the GNPOC consortium there was an
agreement between GNPOC and the government of Sudan that the Sudanese military would
provide security personnel to protect the GNPOC concession areas. Thus between 1998 and
2003, the government provided about 1000 military and police officers, 1300 intelligence
officers that were working in the local communities with the purposes of gathering
intelligence and 5000 military personnel who were stationed within the concession area.
These troops were under the control of the Sudanese minister of Mines and Energy and
were the alleged direct perpetrators of human rights violations.104
75.
Talisman was aware of the role of the military prior to its investment in the
consortium. It sent officials to carry out due diligence on the security situation in the area,
commissioned 2 reports from independent risk consultants, including the Control Risks
Group. Talisman learned that the government provided not only military personnel but also
government-sponsored militia to protect the GNPOC concession area. It was made aware
that Talismans introduction to the concession would probably increase government military
expenditure.105
76.
Talisman officials were informed by an official from Freedom Quest, an NGO
which was assessing the role of the military in abusing human rights, that the Sudanese
military was forcibly evicting people from areas surrounding oil fields in order to facilitate oil
104
105
649.
647.
20
extraction and was engaged in the implementation of genocidal policies against the
communities in those areas.106
77.
The Control Risks Group also prepared reports on the role of the military in abusing
human rights on behalf of Talisman. The military was described as being involved in area
domination carried out by military protection teams concentrated around key GNPOC
assets. These teams consisted of armed escorts which accompanied GNPOC personnel
during hours of darkness. The effect of this military presence created a substantial deterrent
to rebels, criminals and bandits in the area.107
78.
The Canadian government in 1999 appointed John Harker to investigate the human
rights situation in the GNPOC concession area. The ‘Harker’ report pointed to forced
displacement of villagers in the area. It noted that the displacement was ‘more or less
complete by the time Talisman arrived on the scene’ and it had continued during Talismans
involvement in oil exploration in the area.
79.
Between 1999 and 2003 the military implemented a ‘buffer zone’ strategy under
which it cleared villagers from key areas surrounding the concession areas. Groups of
soldiers expelled local police forces and destroyed villages to facilitate oil exploration for the
benefit of GNPOC. Zones 2 and 4 of the GNPOC concession area contained 2 airstrips
referred to as the ‘Heglig’ and ‘Unity’ airstrips. These were used to support GNPOC
activities. They were also used as a base for attacks by the military against rebels and
civilians. In 2000 a dozen military flights landed at Heglig every week with military supplies.
It was also used as a staging area for military operations. TNGBV issued a report detailing
the use of heglig as a loading bay for Antonov planes which were laden with bombs
weighing as much as 500 pounds because it was ‘much loser to the area that they were
bombing’ than any other airstrip. A TNGBV security report stated that ‘[T]hese are weapons
of choice for this type of warfare. They are idea for the area and terrain in which they have
to operate. Form a purely pragmatic point of view they have to operate. From a purely
pragmatic point of view they offer great depth and defence of the oil operation in Block 4
and in the future south of the river. They provide legitimate defence of the oil assets and high threats
assessment.’108 This was also mentioned in the Harker report which added that civilians were
attacked from Heglig.109 The CEO of Talisman wrote to the government protesting the use
of the Heglig strip for the launching of attacks on civilians. He stated that ‘the bombings are
universally construed as violations of international humanitarian law’ and that the
government should ‘stop any bombing that has a chance of inflicting damage on civilians.’ 110
This was ignored and by 2001 there were Antonov bombers ‘flying around the clock.’111
80.
There were also allegations that Talisman officials were considering expanding oil
exploration into an area ‘south of the river’ which cut through the Zone 4 part of the
GNPOC concession area. Talisman officials allegedly stated that they could not expand
106
107
108
109
110
111
647.
Ibid.
654.
652.
654.
652.
21
operations without the assistance of the military – it ‘would be ‘impossible’ without the aerial
support provided by the Government’s helicopters…’112 Shortly after this statement was
made, two plaintiffs claimed that they were displaced from their homes in this area ‘south of
the river.
THE LAW
Conspiracy
81.
The plaintiffs alleged that Talisman
‘joined the conspiracy to displace displaced residents with knowledge of its goal, and
furthered its purpose principally by a) designating new areas for oil exploration
understanding that that would require the Government to ‘clear’ those areas, b) paving and
upgrading the Heglig and Unity airstrips with the knowledge that Government helicopters
and bombers would use them in launching attacks on civilians, and c) paying royalties to the
government with the knowledge that the funds would be used to purchase weaponry’.
A. Forced displacement
82.
The court confirmed that forced displacement and the forcible transfer of a
population which is part of an extensive or organised attack which is aimed at a civilian
population is a crime against humanity. Such crimes also involve murder, enslavement,
deportation or forcible transfer, torture, rape or other inhumane acts, committed as part of a
widespread and systematic attack directed against a civilian population.113
83.
The plaintiffs contended that Talisman was liable as a conspirator in these activities.
They cited the case of Pinkerton v. United States for the following definition of conspiracy
liability which states that a
‘defendant who does not directly commit a substantive offense may nevertheless be liable if
the commission of the offense by a co-conspirator was reasonably foreseeable to the
defendant as a consequence of their criminal arrangement.’114
84.
Judge Cote rejected the use of this doctrine as a standard to found the claim of
conspiracy liability because. Her reasoning was that international law did not extend to the
circumstances it laid down. She stressed that the charge of conspiracy can only be levelled in
relation to conspiracy to commit genocide and conspiracy to wage aggressive war. 115
Instead, she relied on the case of Sosa v Alvarez which laid down the principle that courts
faced with claims based on the ATCA should apply modern international law only if it rests
‘on a norm of international character accepted by the civilized world and defined with a
specificity comparable to the features of the 18th century paradigms that congress had in
mind when it enacted the ATS.’116
85.
According to Cote J Hamdan v. Rumsfeld which stated that international law excludes
liability for conspiracy for war crimes and crimes against humanity.117 She also stated the only
112
113
114
115
116
656.
Talisman 226 F.R.D at 480-1.
Pinkerton v United States, 328 U.S 640, 646-47, 66 S.Ct. 1180, 90 L.Ed 1498 (1946).
664 and Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2784, 165 L. Ed. 2d 723 (2006).
663.
22
circumstance under which a successful claim of conspiracy could be made is when it is
related to the crime of genocide. This view was consistent with the jurisprudence of the
International Tribunals for Rwanda and Yugoslavia.118 She found that the plaintiffs case
failed because they had not alleged that Talisman was a conspirator in the crime of genocide
or was involved in a conspiracy to commit aggressive war.
Aiding and abetting human rights violations
86.
Judge Cote looked to the ICTR, the ICTY and the Rome Statute of the International
Criminal Court to lay down the elements of the crime of aiding and abetting criminal
activity. She relied on the following provisions:
Statute of the ICTR
Article 6 (1)
87.
A person who planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of
the present Statute, shall be individually responsible for the crime.
Rome Statute of the International Criminal Court
Article 25 (3)
88.
In accordance with this Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person for the purpose of
facilitating the commission of such a crime, aids, abets or otherwise assists in its commission
or its attempted commission, including providing the means for its commission
Article 30
(1) Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge.
(2) For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware
that it will occur in the ordinary course of events.
(3)For the purposes of this article, "knowledge" means awareness that a circumstance exists
or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall
be construed accordingly.
Statute of the ICTY
Article 7 (1)
89.
A person who planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of
the present Statute, shall be individually responsible for the crime.
117
Hamdan, 126 S. Ct. at 2784 & n.39; see also Danner, Guilty Associations, at 116; International
Military Tribunal (Nuremberg), Judgement and Sentences, Oct 1, 1946, reprinted in 41 Am.J.Int’l.L 172,
22124 (1947).
118
665.
23
90.
Judge Cote also cited the case of Prosecutor v Vasiljevic which stated that an accused
aider and abettor of a crime must carry out acts which are specifically directed at
encouraging or supporting the criminal enterprise in such a way that has a substantial effect
on the perpetration of the crime.119 Evidence of a substantial effect is present when the
criminal act probably would not have occurred in the way it did without the assistance of the
accused.120
91.
The mens rea test requires the accused to have possessed both intent and knowledge
that their acts would assist the perpetration of the specific crime in question and intent. The
accused is expected to have known the nature of the crime and intended to contribute to its
success. 121
92.
Judge Cote also laid down the following requirements for aiding and abetting
liability, a successful plaintiff asking a court to hold a defendant guilty of aiding and abetting
human rights abuse would have to prove:
1) that the principal violated international law;
2) that the defendant knew of the specific violation;
3) that the defendant acted with the intent to assist that violation, that is, the defendant
specifically directed his acts to assist in the specific violation;
4) that the defendant's acts had a substantial effect upon the success of the criminal
venture; and
5) that the defendant was aware that the acts assisted the specific violation.122
93.
Judge Cote stated that the plaintiffs had failed in proving any of these elements. The
following table reflects her analysis of why the plaintiffs claims failed to satisfy these
requirements.
Factual allegation
1. Talisman helped the government to upgrade and
improve the Unity and Heglig airstrips knowing
that the government would use them to launch
attacks on civilians.
2.
119
Talisman furthered the conspiracy by designating
areas for oil exploration ‘south of the river’ .
Analysis
There was no criminal component in these acts. The
upgrading of airstrips in the extractive industry world wide
is necessary to facilitate transportation of personnel and
supplies. The air strips were operated by GNPOC and not
Talisman. Plaintiffs failed to provide evidence that Talisman
had any role in the upgrading and operation of the air strips.
Evidence of knowledge and intention on the part of
Talisman in relations to the attacks was not adduced. The
Plaintiff’s did not show that Talisman either knew of any
specific government attack on civilians before it occurred or
did anything to support or encourage a specific attack.123
The plaintiffs failed to point to any evidence that GNPOC
ever adopted a plan to carry out this explorations or that the
military engaged in any clearing activity. There was also no
evidence that Talisman had any involvement in a plan or
666-67 Prosecutor v Vasiljevic case No. IT-98-32-A, Judgement ¶ 102(i) (App. Chamber, Feb. 25,
2004).
120
667 Prosecutor v Tadic ¶ 668 (Trial Chamber, May 7. 1997) case No. 94-1-T.
Ibid at¶ 102(ii)., 668 United States v reifler, 446 F. 3d 65, 96 (2d Cir. 2006)., In re South
Apartheid Litigation., 346 F. Supp.2d. 538, 551 n.14 (S.D.N.Y 2004).
122
668.
123
672.
121
24
3.
Talisman provided financial assistance to the
government for the purchase of weaponry used
against civilians.
4.
Talisman assisted the government by providing
fuel and accommodation to the military.
proposal to explore oil production areas neither was there
evidence of Talisman’s illicit intent in this regard.124
There was no admissible evidence linking the payment of
the royalties to the government and expenditure on
weapons. The plaintiffs would have to show that Talisman
paid the royalties with a specific intent that they were used
to purchase weapons to harm civilians. There was no
evidence that Talisman, TGNBV or GNPOC participated
in the attacks. Knowledge of the attacks is insufficient, it
should be accompanied by intent.125.
Talisman did not have a sufficient enough presence on the
ground to be able to provide any substantial assistance.
B. Genocide
94.
According to Judge Cote there was no evidence that an international body or the
United States State department had confirmed that genocide had in fact occurred in Sudan.
Since the plaintiffs also did not show that Talisman knew that acts of genocide were
occurring in Sudan, their claim failed. Their claim would only succeed if they proved the
Talisman acted in a way that substantially assisted the commission of genocide and they
failed to do so.126
C. Crimes against humanity
95.
Murder, enslavement, deportation or forced displacement were cited as examples of
such crimes. The plaintiffs were criticized for claiming that Talisman committed these crimes
without stating which crimes against humanity it was involved in, therefore their claim failed.
D. War crimes
The plaintiffs claimed that Talisman was involved in the commission of war crimes.
Article 3 of Geneva Conventions explains these to be ‘armed conflicts not of an
international character’. Such crimes are committed during hostilities and civilians are
treated in an inhumane manner and discriminated against. They involve violence to life
evidenced through murder, mutilation, cruel treatment and torture, hostage taking,
humiliating and degrading treatment and executions.127 There was no proof that Talisman
participated in such activity and the claim was rejected.
96.
E. Joint venture liability
97.
The plaintiffs also requested that the court consider the allegation that Talisman was
liable for the acts of GNPOC on the basis that it had entered into a joint venture with the
consortium. This would involve the piercing of the GNPOC corporate veil to find Talisman
and attribute the acts of GNPOC to Talisman. The corporate veil cannot be pierced unless
there is proof that the entities involved are not only in a joint venture but that it was formed
as a mere façade in order to commit fraud. The court considered the agreements between
Talisman and GNPOC and found that they did not purport to create a joint venture. Instead
the agreements stated that the parties had no intention to create a joint venture, they created
a private limited company instead.128
124
125
126
127
128
675.
675-76.
670.
671.
683-85.
25
Conclusion
98.
After rigorous scrutiny of the claims made by the plaintiffs, Judge Cote concluded
that:
‘The decision to grant summary judgement for Talisman becomes inescapable once the
Federal Rules of evidence and Civil Procedure are applied to the parties’ submissions on this
motion. It does not reflect a finding that the plaintiffs and their neighbours did not suffer
great harms, or that the Republic of Sudan did not engage in gross violations of international
law and the norms of civilized behaviour. It does not even pass on the wisdom or propriety
of Talisman’s conduct. Instead, this opinion addresses an issue that applies to every civil
lawsuit filed in this country as it nears trial whether the issue being litigated are relatively
mundane or of profound human consequences, as is true here. The issue is whether the
plaintiffs have supplied sufficient admissible evidence to proceed to trial on their claims.
They have not.’129
Unocal and Talisman – Comparative analysis
99.A comparative analysis of the Unocal and Talisman cases reveals among other things,
differences that raise questions about the manner in which courts in the USA are
interpreting and applying the international law component of ATCA.
100. Both the courts relied on international criminal law for the definition of aiding and
abetting human rights violations. The jurisprudence of the ICTR and ICTY was heavily
relied upon in this regard. Both courts however focused on different aiding and abetting
standards.
Knowledge
101. The requirements for satisfying the test for aiding and abetting in Unocal were less
onerous than those set out in the Talisman case. The Unocal judges adopted the definition in
the Furundzija and Musema cases while Judge Cote in Talisman relied on both statute and case
law for the requirements of aiding and abetting liability. Knowledge also played a prominent
role in both cases but a lower base was required in Unocal than in Talisman. Intention also
played a less significant role in the former while the Talisman case rested on the proof of
intent on the part of the corporation. Similarly what was considered as evidence of practical
assistance in Unocal was rejected in Talisman. Unocal focused more on the spirit and morality
of the law and its role in providing exclusionary reasons for action. The reasoning applied in
this is arguably more liberal than that in the Talisman case. Judge Cote in Talisman focused
more on the letter of the law and adopted a more conservative approach than Judge
Pregerson in Unocal.
The mental element
102. Under Talisman a successful plaintiff would have to prove that a corporation
possessed knowledge of the specific violation that the principal perpetrator would commit.
The corporation would also have to know the nature of the specific violation of the crime
and that the accomplice knew of the nature of the specific crime involved.130 On the facts
129
130
639-40.
668 para 7 and 8.
26
the plaintiffs would have to prove that Talisman knew of a specific government attack on
civilians before it occurred.131
103. According to Unocal, actual, constructive or reasonable knowledge of the impending
crime was sufficient. It was not necessary to prove knowledge of the specific violation
involved. Under Unocal it was enough that the plaintiff an awareness of the probability that
one or a number of crimes would be committed by the perpetrator.
104. The plaintiffs in both cases adduced evidence that officials from both companies had
made various statements in internal meetings, reports and emails regarding the abuse of
human rights by the military. This evidence was largely ignored in the Talisman and heavily
relied on in Unocal as proof of knowledge of the military’s commission of human rights
violations.
105. Talisman required the defendant to possess the intention to act as an accomplice in a
crime. Evidence that the corporation directed its actions at achieving this intention was
necessary. To Cote, there was no evidence that Talisman acted in a way that showed that it
intended the military to forcibly remove people to make way for oil explorations. 132 Judge
Pregerson in Unocal stated that the defendant did not need to form any intention that the
principal perpetrator commit a crime. As long as the defendant should reasonably have
known that crime would be committed, if it is committed, the defendant is deemed to
possess the intention for the crime to be committed. This was confirmed by reliance on
Musema which stated that the accomplice did not individually need to possess intention, if a
crime was committed, the perpetrators intention would be attributed to the accomplice.
Substantial assistance
106. The Talisman judgement lacked focused on the actus reus or guilty act of aiding and
abetting liability and more on the mental element or mens rea of the crime in that it stated that
this consists in the two elements of intention and knowledge. The Unocal judgement on the
other hand included an explanation of the actus reus of the offence and focused more on
evidence of this. Under Talisman, the paying of royalties to the military was not taken to be
practical assistance, instead it was seen as a normal consequence to be bourn by a
corporation carrying out activities in another country.133 In Unocal, the payment of money to
the military was considered to be a form of practical assistance from the company which was
also in the extractive industry.134
107. Although these cases were based on similar facts, different legal standards were
applied both within the Unocal case and between Unocal and Talisman. Until judgement is
delivered in the Talisman case the manner in which the international law component of
ATCA is meant to apply remains unclear and a mild state of confusion remains.
131
132
133
134
673.
674.
672.
953.
27
Section III
‘Soft law’ – Non-legal means of dealing with corporate complicity in
human rights violations.
108. Reputational risk, the personal convictions and ethics of employees, professional
peer pressure and other practical considerations can influence conduct as much as formal
legal obligations, and so various attempts have been made to use non-legal methods to
articulate standards to encourage corporations to take greater responsibility for human
rights. The OECD Guidelines and the UN Norms provide examples.
109.
The OECD Guidelines for Multinational Enterprises (the Guidelines)
In 1961 the United Kingdom, the United States of America, Canada, Germany, China and
Japan were amongst the states that established the Organisation for Economic Co-operation
and Development (OECD).135 Its aim is to support sustainable economic growth through
employment creation, the raising of living standards, the maintenance of financial stability,
the provision of financial assistance to countries in need of it and increase and growth of
world trade. The Guidelines are annexed to the OECD Declaration on International
Investment and Multinational Enterprises.136 The process of drafting the Guidelines began in
1976 and after amendments were made in 1979, 1982, 1984 and 1991 the current draft was
adopted in 2000. The Guidelines were drafted to apply to multinational corporations –
‘companies or other entities established in more than one country and so linked that they
may co-ordinate their operations in various ways.’137
110. The Guidelines do not constitute binding obligations and suggest that companies
should contribute to economic, social and environmental progress with a view to achieving
sustainable development. Corporations are advised to respect the human rights of those
affected by their activities in a manner consistent with the host government’s international
obligations and commitments. The Guidelines urge corporations to encourage human capital
formation through employment creation and the facilitation of training programmes for the
development of employees.
111. Corporate involvement in corruption, bribery and improper involvement in political
activities is discouraged in the Guidelines which suggest that they should encourage their
partners to implement the Guidelines.138 Advice on employment and industrial relations is
also given – companies are asked to refrain from the use of child and or forced labour and
from discrimination against employees on any basis. Corporations are also urged to adopt
principles based on sustainable development and environmental protection.
135
The member states are Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands,
New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the
United Kingdom and the United States. Non-member states are Argentina, Brazil, Chile and the Slovak
Republic.
136
Guidelines p6.
137
http://www.oecd.org/dataoecd/56/36/1922428.pdf 17.
138
General Policies No’s 1, 2, 4, 5, 6, 10, 1.
28
112. Since 1961, corporations from the OECD member countries have increased the
levels of international trade with and investment in countries in the developing world. In
2006, 72 of the world’s top 100 firms in the extractive industry originated from the United
States, the United Kingdom, France, Germany and Japan. In the same year foreign direct
investment into the extractive industry in Africa for example, as a result of the recent thirst
for natural resources amounted to U$36 billion.139 This raises questions about the universal
application of the Guidelines which are a blue-print for western corporations carrying out
activities in the developing world. A short case study of the role of corporations from the
OECD region that had adopted the Guidelines and were trading in the Democratic Republic
of Congo between 1998 and 2003 will now be presented as evidence that the Guidelines are
not universally applicable.
The application of the OECD Guidelines to the conduct of corporations during the
conflict in the Democratic Republic of Congo.
113. The chaos and instability caused by the Second Congo War resulted in the
widespread illegal exploitation of minerals and resources in that nation. The war took place
between August 1998 and July 2003. It was the largest war in modern African history and
directly involved 8 African nations, as well as about 25 armed groups.
114. In April 2001, the UN appointed a Panel of Experts to investigate the illegal
exploitation of non-metallic minerals such as diamonds, ferrous and base metals (iron ore,
niobium, tantalum, titanium and cobalt) which are used in the aerospace, construction,
electronic, engineering, manufacturing and steel making industries and other resources in the
Democratic Republic of Congo (DRC). The reports of the Panel accused Rwanda, Uganda
and Zimbabwe and a number of individuals as well as corporations of systematically
exploiting and trading the resources of the DRC. The UN Expert Panel accused some
corporations of being linked to the activities of rebel groups within the DRC. These groups
were said to be directly involved in the illegal exploitation and plundering of the natural
resources of the DRC.
115.
The Panel reached the conclusion that
“The role of the private sector in the exploitation of natural resources and the
continuation of the war has been vital. A number of companies have been involved
and have fuelled the war directly, trading arms for natural resources, which are used
to purchase weapons. Others have facilitated access to financial resources, which are
used to purchase weapons. Companies trading minerals, which the Panel considered
to be ‘the engine of the conflict in the DRC’, have prepared the field for illegal
mining activities in the country.”140
116. The Panel found that there were several “elite networks” that operated in the DRC.
These were defined as “politically and economically powerful groups involved in exploitation
activities which are highly criminalised”.141 The Panel advanced the view that businesses and
139
UNCTAD World Investment Report 2007: Transnational Corporations, Extractive Industries and
Development, 24; 34.
140
UN Expert DRC Panel Report S/2001/357 dated 12 April 2001 (para 215).
141
S/2002/1146 (para 6).
29
corporations played a part in sustaining the DRC conflict and provided specific names of
such companies. It alleged that corporations that had formed relationships with rebel or
armed forces as well as with individuals were involved in fuelling the conflict.
“By contributing to the revenues of the elite networks, directly or indirectly,
companies and individuals contribute to the ongoing conflict and to human rights
abuses.”142
“The consequence of illegal exploitation has been…the emergence of illegal
networks headed by either top military officers or businessmen. These …elements
form the basis of the link between the exploitation of natural resources and the
continuation of the conflict.”
117. According to the Panel, there were four instances of illegality that could be identified
in the context of the illegal exploitation of natural resources and other forms of wealth in the
DRC.
i. Firstly, activities were defined as illegal if they occurred without the consent of the
Government of the DRC.
ii. The second instance of illegality related to action which went against the existing
regulatory framework of the DRC. In this context “the carrying out of an activity in
violation of an existing body of regulations”143 was deemed to be an “infringement
of the law and considered illegal or unlawful”144
iii. Thirdly, activities that were carried out without regard to “widely accepted practices
of trade and business” were also considered illegal.
iv. Lastly, the violation of international law, including soft law was also taken to be
illegal.
118. The OECD Guidelines were taken to fall within the latter category of standards used
by the Panel to evaluate the role of corporations in the conflict in the DRC. The Panel
considered the Guidelines to be the model code of conduct for corporations operating in
this environment. It considered conduct that did not conform to the Guidelines to be
‘illegal’. In report S/2002/1146 the Panel published the names of 58 corporations whose
conduct ran contrary to the Guidelines. These companies were said to be complicit in acts
carried out by individuals and rebel groups which fuelled the conflict.
119.
The Panel stated that the
“richest and most readily exploitable of the publicly owned mineral assets of the DRC are
being moved into joint ventures that are controlled by…private companies. These
transactions, which are controlled through secret contracts and off-shore private companies
amount to a million dollar corporate theft of the country’s mineral assets.”145
The Panel claimed that there was a link between the American company Citibank
and the Rassemblement Congolaise pour la Democratice (Rally for Congolese Democracy),
120.
142
143
144
145
UN Expert DRC Panel Report S/2002/1146 dated 16 October 2002 (para 175).
UN Expert DRC Panel Report S/2001/357, 12 April 2001, para 15.
Ibid.
S/2002/1146 (para 36).
30
(“RCD”), a Rwandan rebel group which was accused by the Panel of being one of the
principal perpetrators of many human rights abuses. Citibank was accused of facilitating loan
payments to this group.146 The RCD not only forcibly seized products and resources, it also
stole money from banks.147 Locals from the Kisangani region were also murdered and
injured by the RCD.148 It seized between 2000 and 3000 tonnes of cassiterite and between
1000 and 1500 tonnes of Coltan from the region.149 The group killed 348 elephants in the
Kahuzi-Biazi Park and was found with 5 tonnes of elephant tasks from the Bakavu and Isiro
regions of the DRC.150 It also utilized child labour in the Kilo Moto and Equateur
provinces.151
The Panel also alleged that the Belgian registered Bank Bruxelles Lambert and
mining company Sogem formed relationships with Aziza Kulsum Gulamali, an individual
whose activities fuelled the conflict. She trafficked arms, ivory and gold from the DRC to
world markets and paid approximately U$1 million to the RCD on a monthly basis. Bank
Bruxelles Lambert allegedly administered her financial affairs and Sogem was her client.152
121.
122. These and similar allegations against other companies were published without any
notice to the companies involved. Affected companies criticized the Panel for breaching the
audi alteram partem rule which if applied would have allowed them to defend themselves
before adverse action was taken against them. Some companies also accused the Panel of
abusing their ‘human rights’ to natural justice and fair procedure, dignity and reputation
which are enumerated in the UDHR. They lamented the lack of transparency in the Panels
conduct because it neither gave any details of the evidence used against the companies nor
the witnesses on whose testimony it relied.
123. At the end of its mandate, the Panel referred unresolved cases to the National
Contact Points of the OECD. These are bodies within each OECD state that monitor
corporate adherence to the Guidelines. Despite the flaws in the Panel’s modus operandi,
some of the allegations it made were confirmed by various NCP bodies.
The UK NCP
124. The UK NCP was in order to encourage the observance and implementation of the
Guidelines. It handles enquiries about corporate adherence to the Guidelines, discusses
related matters and assists in solving issues that may arise where adherence or lack of
adherence to the Guidelines is concerned.153 It does not initiate investigations and rely on
information provided by complainants. When the NCP has completed its process, it issues a
statement of its findings.154
146
S/2001/357.,
Ibid., (para 32).,
148
Ibid.; (para 42)
149
S/2001/357 (para 33).
150
Ibid.
151
S/2002/1146.
152
S/20020/1146 (para’s 12 and 120).
153
< http://www.oecd.org/document/60/0,3343,en_2649_34889_1933116_1_1_1_1,00.html>
[accessed 27 June 2008].
154
See statements issued by the UK NCP on Oryx Natural Resources and Avient at <
http://www.oecd.org/dataoecd/5/17/38033885.pdf> [accessed 28 June 2008]. The UK NCP investigation of
147
31
125. Afrimex was one of the corporations accused by the Panel of breaching the
Guidelines by trading in conflict coltan resources from the DRC from 1996 and throughout
the conflict. It also allegedly paid taxes to the RCD. After the Panels referred the case to the
UK NCP for further investigation the Non-governmental organization, Global Witness filed
a case against Afrimex with the UK NCP. On the 28th of August 2008, the UK NCP
confirmed the Panels allegations against Afrimex.155
126. The Guidelines were enacted by capital investing countries which adhere to strict
rules of conduct and procedure supported by a politically and economically stable
environment in which corporate complicity is intolerable. A strong institutional framework
also upholds the rule of law in such states. At the time the Panel sought to apply the
Guidelines in the, it was weakly governed and fraught with corruption, civil war and conflict,
lawlessness and the rampant abuse of human rights. Neither the Panel nor the drafters of the
Guidelines provided any guidance on exactly how the Guidelines were meant to apply under
such conditions. The failed application of the Guidelines in this case highlighted the need for
the setting out of special standards of behavior for corporations operating in zones of weak
governance. The Panel’s work provides a useful background to the use of the OECD Risk
Awareness Tool for Multinational Enterprises in Weak Governance Zones adopted by the
OECD Council in 2006. Whether or not this tool will be able to address the challenges faced
by corporations in difficult operating environments such as the DRC and places like the
Niger Delta remains to be seen.
The Norms on the responsibilities of Trans-national Corporations and Other
Business Enterprises with Regard to Human Rights (the Norms).
127. The Norms were adopted by the UN Sub-Commission for the Promotion and
Protection of Human Rights in 2003. They recollect the Charter of the United Nations and
draw attention to the Universal Declaration of Human Rights. They contain an
acknowledgement that states are the principal bearers of the responsibility to ‘promote,
secure the fulfilment of, respect, ensure respect of and protect human rights.’156 The Norms
place a responsibility upon corporations to promote and secure the rights which are
enumerated in the Universal Declaration of Human Rights as well as 31 other international
human rights instruments.157 They recommend that trans-national corporations refrain from
discriminatory practices, promote equality of opportunity as well as respect labour rights and
national sovereignty. They also place a responsibility on corporations to protect consumers,
the environment as well as the security of persons. Under the Norms, corporations are
advised to avoid bribery and other corrupt practices.
Enhanced protection of human rights
128. The Norms are not only applicable to trans-national corporations, they are also
relevant to ‘other forms if business enterprise’. According to the definitional section of the
these and other companies was heavily criticised by Rights and Accountability in Development at
http://www.raid-uk.org/docs/UN_Panel_DRC/Unanswered_Questions_Full.pdf.
155
http://www.globalpolicy.org/security/issues/congo/2008/0828afrimex.htm.
156
Preamble.
157
Ibid.
32
norms, these are described as including ‘any business entity regardless of the international or
domestic nature of its activities’.158 Local, small and medium business enterprises are not
immune to the application of the norms. The same is applicable to the ‘contractor,
subcontractor, supplier, licensee or distributor’.159 Although these actors usually fall within
the supply chain, their actions as a result of relationships they may form with third parties,
are often not within the control of a multinational enterprise and so it is appropriate for the
Norms to apply more directly to such entities. Their inclusion within the Norms promotes
uniform standards of behaviour apply to all actors within a corporate transaction or joint
venture.
129. The fact that the Norms are applicable universally means that they are able to export
human rights principles into places were these may be lacking. In cases whereby human
rights abuses are endemic, corporations that adhere to the Norms can introduce them as
minimum standards of behaviour as far as joint ventures between both state and non-state
actors are concerned. The Norms also recommend that their principles be included in
contracts between business people and that they provide the ‘rules of the game’ to which all
players should adhere. This is a welcome step in that the norms can become binding
between the parties to a contract.
130. The Norms encourage corporate philanthropy. Corporations can contribute to the
enjoyment and fulfilment of socio-economic rights human rights is through investing in
community development projects. Examples of this are the building of schools and
hospitals, the paving of roads and investment in water purification plants.
Provisions that may have a negative impact on the protection of human rights
131.
In accordance with the Norms:
‘Transnational corporations and other business enterprises shall respect economic, social and
cultural rights as well as civil and political rights and contribute to their realization, in particular
the rights to development, adequate food and drinking water, the highest attainable standard
of physical and mental health, adequate housing, privacy, education, freedom of thought,
conscience, and religion and freedom of opinion and expression, and shall refrain from
actions which obstruct or impede the realization of those rights.’160
132. This provision implies that the Norms create the expectation that corporations will
adopt state responsibilities to provide for the realisation of human rights. The Norms state at
the outset that the primary responsibility for the fulfilment of human rights lies with states
and yet in the above quotation, they require that corporations should share this
responsibility. It ignores the fact that corporations exist to make profits for shareholders and
not to carry out state functions.161 This could have a chilling effect on corporate will to
protect human rights.
133. Socio-economic rights and the right to development are examples of rights that
states have faced difficulty in fulfilling. Yet, the Norms require corporations to become
158
Article 21.
Ibid.
160
Article 11.
161
Friedman Capitalism and Freedom (Chicago: University of Chicago Press 1962) 133. See also
Dodge v Ford Motors 204 Mich. 459, 170 N.W. 668 (1919).
159
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involved in the realisation of these rights. The former right was enacted in the Declaration
on the Right to Development in 1986 to provide for the material prosperity which is
required for the enjoyment of human rights. It is based on the premise that one cannot fully
enjoy socio-economic or civil and political rights in a context of want, poverty and
underdevelopment. ‘Development’ is a process that depends on huge budgets and policy
implications. Similarly, the delivery of socio-economic rights requires states to make
polycentric decisions that depend on many centres of authority, control and importance.
Their realisation requires a complex interaction of policies in numerous sectors, institutions
and entitlements. These factors could discourage corporations from becoming involved in
human rights protection making the Norms more aspirational rather than practical.
134. The Norms reiterate the fact that states bear the primary duty of protecting and
fulfilling human rights and that corporations contribute to this process. They assume that
states possess the political will and resources to be able to partner with corporations in this
sense. Some states are weakly governed and are themselves involved in the abuse of human
rights. Corruption, cronyism and mismanagement in such states create impediments to the
enjoyment of human rights. In such contexts it is difficult to conceive of exactly how
corporation are expected to contribute to the enhancement of human rights. This lack of
guidance could lead to corporations becoming apathetic towards human rights.
135. The Norms also direct corporations to respect 31 other international human rights
treaties as well as the Universal Declaration of Human Rights, the OECD Guidelines for
Multinational Enterprises, the UN Global Compact as well a number of treaties enacted by
the International Labour Organisation. This compliance focused approach could potentially
overwhelm corporations into a state of fatigue as far as human rights are concerned.
136.
A provision in the commentary to the Norms states the following:
“Transnational corporations and other business enterprises shall ensure that they only do
business with (including purchasing from and selling to) contractors, subcontractors,
suppliers, licensees, distributors, and natural or other legal persons that follow these or
substantially similar Norms. Transnational corporations and other business enterprises using
or considering entering into business relationships with contractors, subcontractors,
suppliers, licensees, distributors, or natural or other legal persons that do not comply with
the Norms shall initially work with them to reform or decrease violations, but if they will not
change, the enterprise shall cease doing business with them.”
137. This commentary assumes that corporations are aware of all the parties that are
involved in the supply chain of their business. In order to fulfil the requirements of this
comment, corporations have to spend time and resources monitoring their partners. There
may be instances whereby potential partners do not adhere to these or other norms of
ethical business practice and yet possess the same level of integrity as those who do.
According to the Commentary, corporations should not deal with the latter. Isolation of
such entities could lead them to form partnerships with unethical businesses thereby
exacerbating the problems the Norms were enacted to rectify.
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138. The commentary also encourages corporations to form relationships with non-Norm
abiding corporations. Such ties are to be severed when the latter fail to desist from
violations. The commentary does not state how long these partners should be tolerated until
it is clear that they have reformed and decreased violations. This approach is counter
productive because ‘good’ corporations risk becoming complicit in human rights violations
perpetrated by such partners.
139. The Norms make it clear that corporations should participate in the protection of
human rights. They make commendable efforts to substantiate how this can be achieved and
act as a reference point for responsible corporations. Notwithstanding this, the drafters of
the Norms missed an opportunity to provide clarity on the realistic and practical scope of
corporate responsibilities for human rights.
Conclusion
140. International law places the responsibility of the management of the relationship
between corporations and human rights on states. Corporations are mentioned in many
treaties and by their monitoring bodies and regional human rights courts are hearing cases
based on human rights infringements which are linked to corporations. But, under
international law, the main protagonist in cases were corporations have breached human
rights, are states. States are responsible for failing to exercise due diligence in preventing and
punishing corporate abuse of human rights. International law in its present form, is
incapable of holding a corporation liable for the infringement of human rights. It also does
not contemplate that corporations can be complicit in the carrying out of violations by states
and vice versa.
141. The Aliens Torts Claims Act possesses potential to impose liability for human rights
abuse on corporations. Case law provides some guidance on the elements of unlawful
corporate conduct as regards human rights. Although the concept of corporate complicity
has been popularised by the US courts applying this standard, they have not yet defined it in
uniform, clear and certain terms. Before the ATCA can be trusted as a statute that is likely to
be used to successfully hold corporations to account, the courts applying it need to define
what constitutes corporate complicity in and the aiding and abetting of human rights.
142. Instruments of ‘soft’ law have done something to raise consciousness about human
rights in the corporate sector. They represent a co-operative effort to prevent the negative
impacts of corporate activity on human rights by involving corporations in the business of
human rights. But in spite of these codes, it is still not clear where the human rights
responsibilities of the state end and were those of the corporation begin.
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