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Corporate Peacebuilding and the Law: Regulating the Private Sector for Conflict Transformation

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Corporate Peacebuilding and the Law: Regulating the Private Sector for Conflict Transformation CORPORATE PEACEBUILDING AND THE LAW: REGULATING THE PRIVATE SECTOR FOR CONFLICT TRANSFORMATION Jonathan Asher Kolieb (ORCID iD 0000-0002-3590-6756) Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy January 2017 Melbourne Law School The University of Melbourne ii ABSTRACT Corporations have social responsibilities and legal obligations in conflict zones. Moreover, many large transnational corporations (TNCs) have the capabilities and capacities to positively contribute to the prevention and resolution of armed conflicts around the globe. However, the potential of “corporate peacebuilding” has yet to be fully realised in theory or in practice. This thesis argues that unlocking this potential requires legal and regulatory innovation. It examines the relationship between peace, corporations and the law, and suggests that the private sector has a largely untapped peacebuilding potential in large part, due to weak governance at the global and national levels. Focusing on the governance of Australian-based TNCs, the thesis argues to realise this potential requires legal and regulatory innovation. Building upon the theory of responsive regulation, a novel regulatory framework is developed for this purpose, embodied in the regulatory diamond heuristic. It encompasses three key components: minimum standards, compliance regulation and aspirational regulation. The thesis then applies this framework to the problem at hand, and in particular explores the law’s roles in each of the constituent elements of a regulatory diamond framework that may help realise the promise of corporate peacebuilding. The thesis argues that international criminal law norms of behaviour are the most legitimate source of minimum legal standards for TNC conduct in conflict-affected areas. It is argued that these norms are applicable to corporations as borne out by the jurisprudence of the Nuremberg-era and later international trials. It is crucial that effective pathways exist to legally enforce such standards. Despite a dearth of viable international enforcement options, it is argued that there exist several promising, but underexploited, domestic avenues for legal accountability when TNCs breach those standards. Finally, despite traditional conceptions of the law’s role being focused on norm-setting and norm-enforcement, it is suggested that well-designed laws may also facilitate and encourage TNCs to go above and beyond mere compliance with minimum standards, to become partners, alongside governments and civil society, in peacebuilding efforts around the globe. i DECLARATION This is to certify that: (i) the thesis comprises only my original work towards the degree of Doctor of Philosophy, except where indicated in the Preface; (ii) due acknowledgement has been made in the text to all other materials used; and (iii) the thesis is less than 100,000 words in length, exclusive the front matter, figures, tables, maps, bibliographies and appendices. Signed: Jonathan Asher Kolieb 13 January 2017 ii DEDICATION This thesis is dedicated to my grandparents – Sara, Harry, Frieda and Jerry, who provided the inspiration to start this project, and to my sons – Gabriel and Zachary – who provided the inspiration to finish it. iii PREFACE Aspects of this thesis have previously been published in the journal articles and book chapter listed below: 1. Jonathan Kolieb, ‘Australia: The Great Southern Land of Corporate Accountability?’ (2013) 1 Pandora’s Box Law Journal 61 2. Jonathan Kolieb and Ellycia Harrould-Kolieb, ‘Corporate Sustainable Peace- building: Exploring the Potential for Corporate Contributions to Conflict Resolution in Africa’ in Salome Bronkhurst and Urmilla Bob (eds), Conflict- Sensitive Adaptation to Climate Change in Africa (Adelphi and DWV-Berlin, 2014) (Lead author, 80% contribution) 3. Jonathan Kolieb, ‘Case Note: Kiobel v Royal Dutch Shell: A Challenge For Transnational Justice’ (2014) 16 Macquarie Law Journal 169 4. Jonathan Kolieb, ‘When to Punish, When to Persuade, When to Reward: Strengthening Responsive Regulation with the Regulatory Diamond’ (2015) 41 Monash University Law Review 136 5. Jonathan Kolieb, ‘Through the Looking Glass: Nuremberg’s Confusing Legacy on Corporate Accountability under International Law’ (2017, forthcoming) American University International Law Review iv ACKNOWLEDGEMENTS This thesis benefitted from the wisdom and supervision of several academics at the Melbourne Law School. I began this PhD journey with Professor Gerry Simpson and am proud to finish it with him. I value his intellect and wisdom – on international law and other matters too – and thank him for sharing it with me. Professor Christine Parker came on rather late in the process as my principal supervisor. Her supervision and mentorship has been invaluable. She has expertly shepherded this project to its conclusion. Professor Sean Cooney provided wise counsel and support along the way as a co-supervisor, and Associate Professor Paul Ali volunteered to comment on the final draft. I am indebted to you all. I thank the staff of the Melbourne Law School for their support, in particular the fellow PhDers at the Asia-Pacific Center for Military Law, the Office of Research team and the librarians. Over the duration of my PhD candidature I have been fortunate to teach alongside some great university educators, including Associate Professor Tim Lynch and Professor John Howe. Thank you for your example, your mentorship and your friendship. Several publications arose from this PhD research. I thank the reviewers and editors of each. I would also like to thank professional accredited editor Mary-Jo O’Rourke AE who provided copyediting and proofreading services in accord with Parts D and E of the university-endorsed ‘Australian Standards for Editing Practice’. To my family, including my parents and siblings: You have put up with a lot over the past six years. Thank you for your forbearance and encouragement. I could not have completed this project without my wife Ellycia. Her stamina, intellect and innate curiosity continue to astound and inspire me. She has read every single word in this thesis (at least once!) and it is the better for it. Over the past six years, Ellycia has not only supported me in my academic endeavours, she has undertaken her own PhD, raised our two awesome sons and kept our home running smoothly. I love you and v thank you. I look forward to assisting you in completing your PhD thesis in the near future. Finally, to my two sons: Gabriel and Zachary. Of all that I have produced in the course of this PhD candidature – including this thesis – it is the two of you I am most proud. May you grow up to be mensches, like your great-grandparents that you are both named after. I love you. vi BRIEF TABLE OF CONTENTS CHAPTER 1: Introduction 1 CHAPTER 2: Transnational Corporations in Conflict-Affected Areas: 25 Describing the Problem and the Potential CHAPTER 3: An Innovative Regulatory Approach to Achieve 81 Corporate Peacebuilding: Addressing the “How” Question with the Regulatory Diamond CHAPTER 4: Clarifying the Mid-Line: Identifying Minimum 133 Standards of Conduct for TNCs Doing Business in Conflict-Affected Areas CHAPTER 5: Sharpening the Bottom-Tip of the Regulatory Diamond: 195 Corporate Legal Accountability for International Crimes in Conflict-Affected Areas CHAPTER 6: Going Above and Beyond: The Law’s Role in 255 Aspirational Regulation for Corporate Peacebuilding CHAPTER 7: Conclusion: The Public Policy Challenge of Realising 301 the Vision of Corporate Peacebuilding BIBLIOGRAPHY 317 vii TABLE OF CONTENTS ABSTRACT ...................................................................................................................... i DECLARATION .............................................................................................................. ii DEDICATION ............................................................................................................... iii PREFACE ........................................................................................................................ iv ACKNOWLEDGEMENTS ............................................................................................. v BRIEF TABLE OF CONTENTS ................................................................................... vii TABLE OF CONTENTS .............................................................................................. viii LIST OF FIGURES AND TABLES xv CHAPTER 1 INTRODUCTION ..................................................................................... 1 I Introduction: The Problem and Potential of Business and Peace.............................. 3 II Objectives .................................................................................................................. 4 III Significance and Scope .......................................................................................... 5 IV Theoretical Approach and Method ........................................................................ 8 V Terminology ............................................................................................................ 11 A Armed Conflict and Conflict-Affected Area ................................................................... 11 B Peace and Peacebuilding ................................................................................................. 13 C Transnational Corporation ............................................................................................... 18
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