Traditionally, complicity arose out of criminal law and required both a material and a mental element. See Anna Triponel, "Comparative Corporate Responsibility in the United States and France for Human Rights Violations Abroad," Global Labor and Employment Law for the Practicing Lawyer, Proceedings of the New York University 61st Annual Conference on Labor 59-158 (Andrew P. Morriss and Samuel Estreicher, eds., Austin: Wolters Kluwer, 2010). In another study, it was noted that "a corporation will be directly complicit in human rights abuses where it decides to participate through assistance in the commission of human rights abuses and that assistance contributes to the commission of the human rights abuses by another. The primary perpetrator does not necessarily have to have been found responsible in order for the corporate accomplice to be found liable for having contributed to those same human rights abuses. Nor need the corporation actually wish the results, it is enough if the corporation or its agents knew of the likely effects of their assistance." Andrew Clapham and Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, Based on a background paper for the Global Compact dialogue on The role of the private sector in zones of conflict (New York, 21-22 March 2001). Still, as a matter of hard law, the precise standard varies depending on the domestic legal order within which complicity is charged under either the civil or criminal law. Triponell, supra., at 126-139 (focusing on France and the United States). Another excellent study of complicity by economic enterprises in human rights violations and judicial recourse was prepared in three volumes by the International Commission of jurists (Commission Internationale de Jurists), an organization dedicated to the primacy, coherence and implementation of international law and principles that advance human rights. See, International Commission of Jurists, Report of the ICJ Expert Legal Panel on Corporate Complicity in International Crimes (2008). (3 volumes in English, French or Spanish).
One of the Report's more important insights concerned the broadening of the meaning of complicity. Complicity has acquired a double set of meanings. One is grounded in the governance framework of the law-state. The other is tied to the social-norm systems of non-state governance regimes--the market, the consumer society, multinational corporations and other governance communities beyond the state. "Just as the concept of impunity in the sphere of human rights has taken on a meaning so much more multi-faceted, sophisticated and colorful than the strict historical legal meaning of impunity, in the context of business and human rights, the concept of complicity is now used in a much richer, deeper and broader fashion than before." (Report of the ICJ Expert Legal Panel on Corporate Complicity in International Crimes, supra, Vol. 1:3).
This development parallels changes in the understanding of transnational governance regimes--and their essential polycentric character--reflected in current efforts to structure and harmonize the governance framework for business and human rights among public and private actors. These seek to connect the public, law based, duties of states, with the social norm based responsibilities of private actors. See, Business and human rights: Towards operationalizing the “protect, respect and remedy” framework Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/11/13 (22 April 2009).
Civil society has been especially important in developing the notion that business has a responsibility to avoid becoming complicit in the human rights violations of other companies in which they invest or in the violations of states in which they do business, and that states have a similar obligation in whatever form they act. Larry Catá Backer, Avoiding Corporate Complicity in the Human Rights Violations of States--Microsoft and Software Licensing, Law at the End of the Day, Nov. 14, 2010; Larry Catá Backer, Michael Komesaroff on China in Africa--State Duty, Corporate Responsibility and the Changing Face of Economic Globalization, Law at the End of the Day, Dec. 13, 2010. See also Larry Catá Backer,States, Labor as a Market Commodity, and Human Rights Frameworks--Cuba's Grannacional Programs at the Intersection of Business and Human Rights, Law at the End of the Day, July 17, 2010. Indeed, civil society tends to make no distinction among market participants, irrespective of the ultimate ownership of these economic actors.
As shareholders, of course, states have sought to rely on the traditional legal distinction between shareholders and the entities in which they invest. What they may be discovering is that the simultaneously application set of social-norm governance standards may affect even the ability of states to avoid determinations of violation of human rights norms. These determinations may not be founded on the law systems of states, but they may produce reaction strong enough to affect behavior, ven if not compelled through traditional processes and structures of law.
In a recently released report, Broken Ethics: The Norwegian Government's Investment in Oil and Gas Companies Operating in Burma (Myanmar) (December 2010), the civil society organization EarthRights International has now taken another step in that direction, arguing that sovereign wealth funds also have the obligation of avoiding becoming complicit in the human rights violations of the corporations in which they invest or the states in which these corporations operate.
This report finds the Norwegian government complicit in human rights abuses in Burma through investments held by the Norwegian Pension Fund-Global (Fund), including USD $4.7 billion invested in 15 oil and gas companies from eight countries operating in Burma. The report documents human rights conditions associated with these 15 company's projects, finding on-going abuses including forced labor, killings, and land confiscation, and the high likelihood that other projects will result in additional abuses in the coming years. These continued investments put Norway in violation of its own Ethical Guidelines for responsible investment. (EarthRights International, Broken Ethics.)
"Engineers work on the Yadana pipeline in the 1990’s. EarthRights International (ERI) has documented that many of the access roads and helicopter landing pads for the pipeline were built with forced labour on land confiscated without compensation. An ERI report released on Wednesday accuses the Norwegian government of complicity in such abuses by the Burmese regime by way of a Norway sovereign wealth fund stake in 15 firms in Burma’s energy sector, including Chevron and Total, who operate the pipeline. Photo: ERI" Thomas Maung Shwe, Report condemns Norway fund’s Burma investments, Mizzima (Dec. 17, 2010).
This report analyzes whether the Fund’s investments in 15 companies involved in Burma’s oil and gas sector are in line with the Ethical Guidelines and the Council’s standards for investment, and whether the companies should be subjected to the Council’s recommendation for observation or exclusion from the Fund.
This report provides evidence linking the oil companies Total S.A. (France), Chevron Corporation (U.S.), PTT Exploration and Production Company (PTTEP) (Thailand), the Petroleum Authority of Thailand (PTT), and JX Holdings, Inc. (formerly Nippon Oil Corp.) (Japan) with serious, ongoing human rights abuses in connection with the operation and maintenance of the Yadana and Yetagun natural gas pipelines in Burma. The Fund has a cumulative USD $3.7 billion invested in these companies.
This report also reveals that the Norwegian Fund has a cumulative USD $457 million invested in companies participating in the controversial Shwe gas and oil transport pipeline projects that extend from Burma to the China border, including Daewoo International (South Korea), POSCO (South Korea), Korea Gas Corp. (South Korea), GAIL of India, Ltd. (GAIL) (India), Hyundai Heavy Industries (South Korea), PetroChina (China), and Kunlun Energy Co. Ltd. (formerly CNPC Hong Kong Ltd.)(China). This report links these companies to current human rights abuses and an unreasonably high likelihood of future abuses associated with the projects. Documented abuses to date include violations of property rights through uncompensated land confiscation, and violations of civil and political rights through the military regime’s persecution of local people suspected of opposing the projects. As this report shows, the Burmese Army (Tatmadaw) has committed these abuses on behalf of the companies’ interests and investments. (Id., at 5-6).
There are several important aspects of this report, beyond the substantive charges, that are worth highlighting.