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University of Cape Town Town 2011 The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University PROFITS VERSUS HUMAN RIGHTS: ACCOUNTABILITY FOR CORPORATE COMPLICITY IN HUMAN RIGHTS VIOLATIONS Rethabile Mathabathe (MTHRET001) A minor dissertation submitted in partial fulfillment of the requirements for the award of the degree of Master of Philosophy Faculty of the Humanities University of Cape Town Town 2011 Cape COMPULSORY DECLARATION of This work has not been previously submitted in whole, or in part, for the award of any degree. It is my own work. Each significant contribution to, and quotation in, this dissertation from the work, or works, of other people has been attributed, and has been cited and referenced. Signature: University Date: 1 Abstract This thesis seeks to examine the interplay between business and human rights within the context of political transitions from authoritarian to democratic rule. In the wake of the globalisation process and the subsequent breakdown of the Westphalian state system, transnational corporations (TNCs) have acquired augmented powers at a global level where previously states had been the only players; and yet TNCs have none of the human rights obligations of states, particularly under international law. This dissertation aims to examine why this accountability lacuna exists in relation to corporations, specifically in relation to state-sponsored human rights violations in which TNCs are complicit. The thesis addresses issues relating to (i) to what extent corporate actors are and should be held accountable under international human rights law; and (ii) how they could be held accountable. The thesis accordingly makes an examination of the current accountability trends and mechanisms available, as well as the history informing corporate accountability for complicity in human rights violations. It is argued that issues of corporate accountability for complicity in human rights violations are made more complex in the context of political transitions from authoritarian to democratic rule. In this vein, the dissertation examines the South African example of such a politicalTown transition; namely: (i) what accountability mechanisms were employed in order to address issues of corporate complicity in state- sponsored human rights violations in the South African milieu; (ii) the success thereof; and (iii) the lessons that may be learnt from the South African experience. Cape of University 2 TABLE OF CONTENTS Chapter One: Introduction 1.1 Introduction 1.2 Corporate Complicity in Human Rights Violations 1.3 Accountability in the Context of Transitions (from Authoritarian Rule) 1.4 Problem Statement and Research Question 1.5 International human rights law and its Instruments 1.6 Transnational Corporations and Globalisation 1.7 International Monitoring of Corporate Governance: the South African Case 1.8 Democratic Transition and Corporate Accountability: The SouthTown African Truth and Reconciliation Commission 1.9 Research design and thesis structure Cape 1.10 Conclusion of Chapter Two: Conceptualizing the Business-Human Rights Paradigm 2.1 Human Rights 2.2 Corporate Identity and Accountability – The Transnational Corporation (TNC) in International Criminal and Civil Law Jurisdictions 2.3 Globalisation and Universitythe State-Corporate Power Paradigm 2.4 Corporations and Accountability for Human Rights Violations under International Law 2.4.1 Critiques of Corporate Accountability 2.4.2 Clapham‟s Approach to Human Rights Violations by Non-state Actors 2.5 Concluding Remarks Chapter 3: Corporate Accountability Mechanisms 3.1 History of corporate accountability – the Nuremberg Trials 3 3.2 Current trends in corporate accountability: State responsibility 3.3 International Conventions: “Soft Law” Corporate Accountability Mechanisms 3.4 Corporate Governance Mechanisms 3.5 Corporate Accountability Mechanisms in Domestic Law 3.6 Concluding Remarks Chapter Four: Corporate Complicity in the Transitional Context 4.1 Transitions from authoritarian rule 4.2 South Africa: A Case Study 4.2.1 Apartheid South Africa 4.2.2 The Truth and Reconciliation Commission (TRC) Town 4.2.3 Corporations & the TRC: The TRC Business Hearings 4.2.4 Critiques of the TRC‟s Business Hearings Capeon Corporate Accountability 4.3 Launch of the Khulumani case of 4.4 Prospects of Success 4.5 Concluding Remarks Chapter 5: Conclusion 5.1 Issues of AccountabilityUniversity 5.2 The Context of Political Transition 5.3 Post-Transition South Africa and transitional context outcomes 5.4 Concluding Remarks 4 Chapter One: Corporate Accountability as a Problem of Transitional Justice 1.1 Introduction The late twentieth century has heralded the advancement of human rights and the growing reach of international human rights law; in the midst of this development, however, new interrelated issues have gradually emerged. The fundamental changes of a globalized world have presented new challenges to human rights and their enforcement; new players, aside from states and individuals, are directly and indirectly involved in human rights violations. Accordingly, new accountability mechanisms able to address these new actors and novel concerns need to be developed. In this regard, a key question is whether, or in what sense, corporations can be held accountable for human rights violations with which they are directly or indirectly involved. Corporations, in particular transnational corporations (TNCs), now represent a formidable force in the international arena, not only in terms of their economic activities but also in terms of their influence and involvement in the internal political affairs of many different societies, including authoritarian regimes and military dictatorships. There are numerous ways in which corporations,Town and in particular transnational corporations, may commit or be involved in human rights violations. Corporations may violate human rights either by being directly involved in their perpetration, or they may be indirectly involved or “complicit” in such violations. However, few accountability mechanisms are available in relation to TNC complicity in human rights violations. As corporations expand their operationsCape from local to global contexts the degree of accountability for their behaviour, particularly in ofrelation to human rights violations, increasingly begs examination. In the course of this thesis the various accountability mechanisms for corporate complicity in human rights violations, particularly those available in terms of public international law, will be examined in order to determine whether the current mechanisms are stringent enough, and whether international human rights law offers adequate methods for curtailing the augmented power of corporations. Beginning with an examination of the history of corporate accountability, particularly within public international law, the thesis aims to establish (i) why there is in fact this lacuna in international law in terms of corporate accountability for human rights violations; (ii)University what mechanisms may be used to hold corporations accountable; and (iii) the prospects of success of such accountability mechanisms. As international human rights law is a relatively new and still evolving field this thesis may perhaps offer more questions than answers. Nevertheless the topic warrants exploration: as territorial borders become less defined and corporations entrench themselves as powerful global players, questions regarding their accountability for human rights violations multiply. There is a growing need to assess TNC accountability for human rights violations in comparison to that of traditional international human rights actors, namely individuals and states. 5 It is clear, even upon a superficial viewing of the landscape, that human rights discourse has achieved increasing prominence globally and has coalesced in broad political and legal changes.1 Within this milieu, international human rights law has come to prominence as a mechanism for enforcing human rights. Human rights discourse has achieved a global reach far beyond the initial theories that shaped general rights discourse, such as those of Hobbes, Locke, Kant and Hohfeld2 and international human rights law has spearheaded the legal codification of human rights norms. Accordingly, the focus of this work will be primarily on the significance of international human rights law in relation to the accountability of corporations for their complicity in state-sponsored human rights violations. In particular, this thesis will place a specific focus on the business-human rights interplay within the context of political transitions from authoritarian rule, and will examine the accountability of TNCs for complicity in human rights violations committed by the states in which they are operating. The aim of this work is thus, by way of descriptive and illustrative analysis, to examine and analyse the manner in which corporations, particularly TNCs, have been held legally accountable for human rights violations in which they were directly or indirectly involved. The examination will be limited to contexts of political transition from authoritarian to democratic regimes; in this senseTown it involves an investigation of transitional
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