Corporate Complicity in Human Rights Violations – A ...



CORPORATE COMPLICITY IN HUMAN RIGHTS ABUSES

A Discussion Paper(

Vuyelwa Kuuya

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, non-governmental 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.

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]

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.

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 Unocal[2] and Presbyterian Church of Sudan v Talisman Inc.[3] which were based on the Aliens Tort Claims Act.

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 Sub-Commission on the Promotion and Protection of Human Rights, and (b) more briefly, the OECD Guidelines for Multinational Corporations.

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

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.

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

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

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]

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 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

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

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

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

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.

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 |Right affected |Reference to corporations in relevant |

| | |General Recommendations (GR) and/or General|

| | |Comments (GC) of treaty monitoring bodies. |

|International Covenant on the Elimination |Article 2 (1) (d) – States are to condemn |GR 23[11] The Committee is conscious that |

|of all forms of Racial Discrimination |all forms of racial discrimination against |some commercial companies and state |

| |all persons including groups of persons or |enterprises infringe the rights of |

| |organizations through legislation. |indigenous people to their land and |

| | |resources, culture and historical identity.|

| |Article 5 (f) – States should guarantee |States should ensure that these communities|

| |that all races are able to gain access to |enjoy sustainable and economic development,|

| |all forms of transport, hotels, |protect their rights to own, develop, |

| |restaurants, cafes and theatres. |control and use their communal lands, |

| | |territories and resources. |

|International Convention on the Rights of |Article 3 (1) – States should ensure that |GC1[12] – Governments are obligated by the |

|the Child and its |child health care services provided by |Convention, pursuant to article 17 (a), to |

|Optional Protocol |institutions conform to authorized health |take all appropriate steps to "encourage |

| |care standards. |the mass media to disseminate information |

| |Article 17 (a) States should ensure that |and material of social and cultural benefit|

| |the mass media exposes children to |to the child." |

| |information that promotes their social, | |

| |spiritual, physical and moral well-being. |GC4 – States should prohibit marketing |

| |Article 29 – States should ensure that |companies from promoting unhealthy products|

| |educational institutions develop every |and lifestyles (e.g. alcohol, tobacco) |

| |child’s personality, talents and mental and|which harm the health and development of |

| |physical abilities in a manner that |children.[13] |

| |maximizes their fullest potential. | |

| |Education in such institutions should be |GC7 – States should ensure that companies |

| |based on the personality, culture and |in the agricultural and entertainment |

| |nationality of all children. Children |industries (television, film, media and |

| |should be taught to respect sexual |advertising) do not involve children in |

| |equality, religious and national tolerance |harmful work.[14] |

| |while respecting the rights and fundamental| |

| |freedoms in the UN Charter. |GC25 – States should ensure that non-State |

| | |providers of children’s rights operate in |

| |Optional Protocol Article 3, 4 – Each state|accordance with the Convention on the |

| |party shall hold legal persons who violate |Rights of the Child. The private sector |

| |the right to (Article 3 (1)) … such |should always act in the best interests of |

| |liability of legal persons may be criminal,|the child and should be subject to rigorous|

| |civil or administrative. These requirements|monitoring by States.[15] |

| |apply even if the offences have been | |

| |committed transnationally on an individual | |

| |or organized basis. | |

|International Convention on the Protection |Article 9 (1) – States should ensure that |CESCR GC23 – States must ensure that |

|of People with Disabilities |corporations in the transporation and |members of the private sector private |

| |information technology industries implement|employers, private suppliers of goods and |

| |measures to ensure the independence and |services, and other non-public entities |

| |equality of disabled persons. Buildings, |involved in the provision of public |

| |roads, transportation and other indoor and |services do not infringe the rights the |

| |outdoor facilities, including schools, |disabled. Both legislative and |

| |housing, medical facilities and workplaces |non-legislative means should be implemented|

| |should be accessible to disabled persons. |in this regard. |

|International Convention on Civil and |Article 17 (1) – Every person has the right|Human Rights Committee GC31 – Article 2 (1)|

|Political Rights |to be protected against arbitrary or |of the ICCPR places states under a |

| |unlawful interference with his privacy, |positive obligation to ensure |

| |family, home or correspondence as well as |non-discrimination on the basis of race, |

| |against unlawful attacks on his honor and |color, sex, language, religion, political |

| |reputation. |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)

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

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.

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 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

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

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. Honduras[22] 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.’[23] 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.’[24] 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

X and Y v. The Netherlands[25]

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.[26]

Inter-American Court of Human Rights

Awas Tingni Mayagna (Sumo) Indigenous Community v. The Republic of Nicaragua[27]

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.’[28]

The African Commission

Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria[29]

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 diligence in discharging its positive duties to protect these rights because it failed to ensure that the private companies did not infringe human rights.[30]

The UN Human Rights Committee

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. France[31]

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.’

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 |Case |

|Inter-American Court of Human |Guatemala v Coca-Cola |

|Rights |Yanomami v Brazil[32] |

|European Court of Human Rights |Ireland v UK (1976)[33] |

| |Van der Mussele v Belgium[34] |

| |Costello-Roberts v United Kingdom[35] |

| |Lopez Ostra v Spain[36] |

| |Hatton & Others v the United Kingdom[37] |

| |Guerra and Others v Italy[38] |

|African Commission on Human and |Commission Nationale des Droits de l'Homme et des Libertes v|

|Peoples Rights |Chad[39] |

|Human Rights Commission |Ilmari Länsman et al v Finland[40] |

| |Chief Bernard Ominayak and the Lubicon Lake Band v |

| |Canada[41] |

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

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.

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.

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.’[42] 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.’[43]

Prior to 1980, the ATCA was used infrequently. It is claimed that between 1789 and 1980 it was envoked only 21 times.[44] However, since the case of Filàrtiga v. Peńa-Irala[45] the 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-McMoran[46] , Beanal v. Freeport-McMoran[47], Bigio v. Coca-Cola[48], Bowoto v. Chevron Texaco[49], In re Union Carbide Corp Gas Plant Disaster at Bhopal[50], Khulumani et al v. Barclays National Bank et al[51], Doe v. the Gap et al[52], Wiwa v. Royal Dutch Shell[53] and Sarei v. Rio Tinto[54].

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 non-state 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.

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. Unocal[55]

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.[56]

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.[57] 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.

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

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.[58] 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.[59] 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.[60] 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.’[61] There was also evidence that daily meetings between the military and army commanders and Unocal officials were taking place.[62] 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.[63]

Knowledge that the military was abusing human rights during the project

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.[64] 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 habitually makes use of forced labour to construct roads..in such circumstances UNOCAL and its partners will have little freedom to manoeuvre.’[65]

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.’[66] 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.’[67] He also stated that ‘[i]f forced labor goes hand in glove with the military yes there will be more forced labor.’[68]

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.’[69]

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. [70] 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.

There was also evidence showing that Total acknowledged that forced labour was in fact occurring and that some workers and had been compensated.[71]

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

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.’[72] In this regard, Pregerson J cited the use of international law in other ATCA cases such as Wiwa v. Royal Dutch Petroleum Company.[73] He opined that international law better serves the needs of the international system in such cases as the present.

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.

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.[74] 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.[75] 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.[76]

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.[77]

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.[78] 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.[79]

Liability for Aiding and Abetting the Violation of International Law

Actus Reus

In agreement with cases such as Mehinovic v Vuckovic[80] 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. [81]

The case of Prosecutor v Furundzija[82] 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. [83] 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.’[84] 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.[85]

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.’[86]

On the evidence, the majority concluded that a reasonable fact finder would conclude that the conduct of Unocal met this standard.[87]

The mental element (Mens rea) of aiding and abetting criminal activity.[88]

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.[89] Judge Pregerson qualified this by stating that 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.[90]

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.[91]

Factual Analysis

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.[92]

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.’[93]

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.’[94] 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.’[95]

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.’[96]

Conclusion

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.

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.’[97]

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.

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.[98]

Concurring judgement

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 inchoate a rule for us to adopt without further elaboration as to its scope by international jurists.’[99]

Joint venture liability

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.’[100]

Agency liability

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.’[101]

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.’[102]

Reckless disregard

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 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

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’[103]

Commentary

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.

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.

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.[104]

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 Sudan under which the government, through its military troops would secure the operations at zones 1, 2 and 4.

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.

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.’

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

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.[105]

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.[106]

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 extraction and was engaged in the implementation of genocidal policies against the communities in those areas.[107]

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.[108]

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.

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.’[109] This was also mentioned in the Harker report which added that civilians were attacked from Heglig.[110] 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.’[111] This was ignored and by 2001 there were Antonov bombers ‘flying around the clock.’[112]

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 operations without the assistance of the military – it ‘would be ‘impossible’ without the aerial support provided by the Government’s helicopters…’[113] 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

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

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.[114]

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.’[115]

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.[116] 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.’[117]

According to Cote J Hamdan v. Rumsfeld which stated that international law excludes liability for conspiracy for war crimes and crimes against humanity.[118] She also stated the only 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.[119] 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

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)

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)

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)

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.

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.[120] 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.[121]

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. [122]

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.[123]

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 |Analysis |

|Talisman helped the government to upgrade and improve the Unity |There was no criminal component in these acts. The upgrading of |

|and Heglig airstrips knowing that the government would use them |airstrips in the extractive industry world wide is necessary to |

|to launch attacks on civilians. |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.[124] |

|Talisman furthered the conspiracy by designating areas for oil |The plaintiffs failed to point to any evidence that GNPOC ever |

|exploration ‘south of the river’ . |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 proposal |

| |to explore oil production areas neither was there evidence of |

| |Talisman’s illicit intent in this regard.[125] |

|Talisman provided financial assistance to the government for the |There was no admissible evidence linking the payment of the |

|purchase of weaponry used against civilians. |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.[126]. |

|Talisman assisted the government by providing fuel and |Talisman did not have a sufficient enough presence on the ground |

|accommodation to the military. |to be able to provide any substantial assistance. |

B. Genocide

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.[127]

C. Crimes against humanity

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.[128] There was no proof that Talisman participated in such activity and the claim was rejected.

E. Joint venture liability

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.[129]

Conclusion

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.’[130]

Unocal and Talisman – Comparative analysis

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.

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

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

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.[131] On the facts the plaintiffs would have to prove that Talisman knew of a specific government attack on civilians before it occurred.[132]

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.

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.

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.[133] 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

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.[134] 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.[135]

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.

Section III

‘Soft law’ – Non-legal means of dealing with corporate complicity in human rights violations.

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.

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).[136] 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.[137] 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.’[138]

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.

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.[139] 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.

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.[140] 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.

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.

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.

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.”[141]

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”.[142] The Panel advanced the view that businesses and 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.”[143]

“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.”

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”[144] was deemed to be an “infringement of the law and considered illegal or unlawful”[145]

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.

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.

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.”[146]

The Panel claimed that there was a link between the American company Citibank and the Rassemblement Congolaise pour la Democratice (Rally for Congolese Democracy), (“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.[147] The RCD not only forcibly seized products and resources, it also stole money from banks.[148] Locals from the Kisangani region were also murdered and injured by the RCD.[149] It seized between 2000 and 3000 tonnes of cassiterite and between 1000 and 1500 tonnes of Coltan from the region.[150] 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.[151] It also utilized child labour in the Kilo Moto and Equateur provinces.[152]

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.[153]

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.

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

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.[154] 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.[155]

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.[156]

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).

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.’[157] 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.[158] 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

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 norms, these are described as including ‘any business entity regardless of the international or domestic nature of its activities’.[159] 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’.[160] 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.

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.

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

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.’[161]

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.[162] This could have a chilling effect on corporate will to protect human rights.

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 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.

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.

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.

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.”

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.

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.

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

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.

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.

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.

-----------------------

( 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)

[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.

[5] General recommendation 24 para’s 14, 15,17 and 30 (d).

[6] Para 35.

[7] Para 19.

[8] Para 31.

[9] General Comment 25 2004 Para 7.

[10] Paragraph 24 (d).

[11] Para 3 and 5.

[12] Para 21.

[13] Para 25.

[14] Para 36.

[15] Para 42 (d).

[16] 2004 para 8.

[17] 2000 para 31.

[18] Article 8 (4).

[19] Article 2.

[20] Article 6.

[21] 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.

[24] .

[25] 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] < >.

[27] Para 153.

[28] African Commission, Communication No 155/96 (2001).

[29] Ibid, para 59.

[30] .

[31] .

[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.

[38] .

[39] .

[40] .

[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.

[44] 630 F. 2d 876 (2d Cir 1980).

[45] 811 So 2d 98 (LA App 2002).

[46] 969 F Supp 362 (ED LA 1997.

[47] 239 F 3d 440 (2d Cir 2000).

[48] 2004 US Dist LEXIS 44603 (ND, Cal 2004).

[49] 634 Supp 842.

[50] Case CV 25952 (EDNY 2002).

[51] No. CV-01-0031, 2001 WL 1842389 (CD Cal 2001).

[52] 22 F 3d 88 (2d Cir 2000).

[53] 221 F Supp 2d 1116 (CD Cal 2002).

[54] 395 F,3d 932 (9th Cir. 2002)

[55] 937.

[56] 936.

[57] 938.

[58] 938.

[59] Ibid.

[60] 939.

[61] Id.

[62] Ibid.

[63] 940.

[64] Ibid.

[65] 940-41.

[66] 941.

[67] Ibid.

[68] Ibid.

[69] 942.

[70] Ibid.

[71] 948 para 7,8 citing Filartiga v. Pena-Irala, 630 F. “d 876, 880 (2d Cir. 1980).

[72] 226 F. 3d 88, 105 n.12 (2d Cir. 2000).

[73] 944 citing United States v Matta-Ballesteros, 71 F. 3d 754, 764 n.5 (9th Cir.119);

[74] 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.

[79] 198 F. Supp. 2d 1322, (ND Ga. 2002).

[80] 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.

[89] Ibid..

[90] 951 Musema at 180, 182.

[91] 956.

[92] 952.

[93] 952-53.

[94] 953.

[95] Ibid.

[96] Ibid.

[97] Tadic at 688.

[98] 969.

[99] 670

[100] Ibid.

[101] Id.

[102] Doe v Unocal at 975.

[103] 453 F.Supp.2d 633 (S.D.N.Y. 2006)

[104] 649.

[105] 647.

[106] 647.

[107] Ibid.

[108] 654.

[109] 652.

[110] 654.

[111] 652.

[112] 656.

[113] Talisman 226 F.R.D at 480-1.

[114] Pinkerton v United States, 328 U.S 640, 646-47, 66 S.Ct. 1180, 90 L.Ed 1498 (1946).

[115] 664 and Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2784, 165 L. Ed. 2d 723 (2006).

[116] 663.

[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.

[119] 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.

[121] 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.

[124] 675.

[125] 675-76.

[126] 670.

[127] 671.

[128] 683-85.

[129] 639-40.

[130] 668 para 7 and 8.

[131] 673.

[132] 674.

[133] 672.

[134] 953.

[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] 17.

[138] General Policies No’s 1, 2, 4, 5, 6, 10, 1.

[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).

[142] UN Expert DRC Panel Report S/2002/1146 dated 16 October 2002 (para 175).

[143] UN Expert DRC Panel Report S/2001/357, 12 April 2001, para 15.

[144] Ibid.

[145] S/2002/1146 (para 36).

[146] S/2001/357.,

[147] Ibid., (para 32).,

[148] Ibid.; (para 42)

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[150] Ibid.

[151] S/2002/1146.

[152] S/20020/1146 (para’s 12 and 120).

[153] < > [accessed 27 June 2008].

[154] See statements issued by the UK NCP on Oryx Natural Resources and Avient at < > [accessed 28 June 2008]. The UK NCP investigation of these and other companies was heavily criticised by Rights and Accountability in Development at .

[155] .

[156] Preamble.

[157] Ibid.

[158] Article 21.

[159] 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).

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