Corporate Complicity Project

A joint project by First Africa Holdings and the Lauterpacht Centre for International Law

The project, which concluded in Spring 2010, conducted a legal analysis of the concept of corporate complicity in human rights violations.  The research was based at the Lauterpacht Centre and funded by First Africa, a leading investment bank in Africa.

A steering committee consisting of Chester Crocker (Chairman and James R. Schlesinger Professor of Strategic Studies at Georgetown University's Walsh School of Foreign Service), James Crawford (Director of the Lauterpacht Centre), John Barker (Fellow of the Lauterpacht Centre), Guglielmo Verdirame (Fellow of the Lauterpacht Centre), Kofi Adjepong-Boateng (Chief Executive of First Africa) and Andre Pienaar (Good Governance Group) provided oversight of the project research, which was conducted by Ms Vuyelwa Kuuya.  The Project's aim was to assist legal and financial advisory firms by providing clearer parameters for due diligence investigations into the affairs of companies operating in conflict zones.

One of the outcomes of the project was a conference entitled Corporate Complicity in Human Rights Violations, which took place at the Lauterpacht Centre on 15th and 16th December 2009.

Conference Report:

The conference invited comments on the tentative conclusions of the project, which were presented by Prof. James Crawford and enriched the discussion of four main themes: (i) international law and corporations, (ii) the litigation risks faced by corporations, (iii) the role and effectiveness of soft law and (iii) the exercise of human-rights due diligence by corporations.

Experts in international law discussed the indirect relationship between international law and corporations, as well as the lack of a regime of international corporate responsibility. Attention was drawn to developments in international investment law, environmental law and competition law which place direct social duties on corporations. The manner in which the work done by the UN Special Representative to the Secretary General (SRSG) on Business and Human Rights is likely to influence corporations with regards to international human rights also received considerable attention.

Lawyers acting on behalf of plaintiffs in civil actions against corporations in the UK and USA (under the Aliens Tort Claims Act) articulated some of the procedural and tactical issues involved in such litigation. They also examined the implications of the recent judgment in the ATCA based case of Presbyterian Church of Sudan v Talisman Energy Inc 07-0016-cv (October 2009) where the Court decided that a corporation can only be liable for aiding and abetting harm if there is evidence that it acted with both knowledge and intention.

Representatives of civil society and lawyers assessed the role played by soft law instruments in influencing corporate behavior in favour of human rights. The panelists noted that soft law instruments are harder than it may initially appear: attention was drawn to instances where principles of corporate social responsibility had been incorporated into legislation in jurisdictions such the UK, France and other countries. Discussion also centered on the main disadvantages of soft law: it is voluntary in nature, it lacks effective enforcement mechanisms and fails to offer adequate remedies to victims of abuse. It was also noted that although there is a proliferation of codes, guidelines and declarations, these have failed to harden into law that is binding upon corporations. The panelists expected that the 2010 review of both the OECD Guidelines and the IFC performance Standards would improve the effectiveness of such instruments of soft law.

Lawyers and corporate advisors discussed the manner in which corporations could exercise due diligence with regards to human rights. The 2008 framework of the SRSG on Business and Human Rights which states that corporation should exercise due diligence was evaluated. The dialogue that this framework has encouraged was acknowledged but it was taken to be a non-legal standard on which further clarification was needed. It was concluded that despite the pressure placed on corporations and their corresponding will to uphold human rights, zones of weak governance constrain their efforts. Panelists expressed the need for civil society, governments and corporate boards to take collaborative action to ensure that corporations respect human rights.