INTRODUCTION

Traditionally it was thought that imposing liability on corporations, including for violating human rights is not legally justified, as unlike natural persons, they lack the requisite mens rea (mental state) to intentionally cause harm. With the exception of the Nuremberg Trials post-World War II prosecutions involving German companies, the common perception was that while corporations could be subject to litigation in the business context for breach of contract or torts, they cannot be criminally liable for violation of rights, whether directly, or in the more common situation, by aiding and abetting governments. However – and this is equally true in the legal-political sphere – traditions change.

The main facilitator of the change in past decades is the emergence of global governance focused on human security. In our discussion, four main effects are very relevant. The rise of global corporations and their involvement in the development of international law, as well as their exposure to it; the creation of intergovernmental global institutions and norms responsible for monitoring human rights; the increase in non-governmental organisations (NGOs) involved in the protection of global human rights and the creation of universal human rights norms. All these developments combined serve as the basis for modern attempts to promote corporate responsibility, or, to use the legal term, corporate liability for preserving human rights, alongside development of enforcement mechanisms.

Efforts to impose corporate liability for human rights abuse, including universal litigation and international guidelines, are constantly increasing. The question is whether these are remedies or ineffective placebos, and whether states should instead be encouraged to act domestically or through international agreements.

The latter has merit, acknowledging that regimes involved in alleged corporate abuse include what are considered transformative regimes like Vietnam, Burma, China and Papua New Guinea. Recognising the need for overall solutions and to prevent obstacles to development, engagement of local regimes in ensuring foreign corporate compliance coupled with steps by the corporations’ home states can be preferable and effective. This idea is embodied in the understanding that no matter how hard those who support the imposition of corporate liability try to frame the issue in legal terms ultimately the discussion is very political, requiring policy judgments.