Most if not all of the NGOs represented at the Seminar accompany their advocacy and other work with public awareness-raising and campaigning. It is important to build a critical mass of informed public opinion calling corporations to account for their activities. AIBG, Banana Link, Bayerwatch, and WDM were among the NGOs present at the seminar who publish awareness-raising and campaigning materials, including regular newsletters (Banana Trade News Bulletin, Keycode Bayer, Human Rights and Business Matters)to equip members of the public to call companies to account. Weltumspannend Arbeiten of Austria is a specifically education-oriented project working with organised workers and development issues and the effects of globalisation.
7. Discussion: Codes of Conduct
‘Voluntary labels and codes of conduct are no substitute for legislation and binding international agreements. However, they can be helpful in promoting fundamental labour and human rights all over the world.’ (India Committee of the Netherlands).
A major discussion thread running through the seminar concerned the value and usefulness of codes of conduct. Codes of conduct are currently mushrooming, being created by governments, companies, and NGOs; and there was a clear division of opinion between those who considered them at best ineffectual and at worst dangerous, and those who found value in promoting meaningful codes and lobbying for them to be treated by companies as a mechanism of public accountability to society at large, even though they are not legally binding. This division of opinion coincided to some extent with the two constituencies present, lawyers and NGOs/activists. Lawyers’ principal interest is in getting legal redress for victims of abuses, while that of NGOs is in non-legal means, which have a wider appeal to public opinion and can therefore have some public impact even if a legal action fails.
The NGO position, broadly speaking, is that while legal methods are both valuable and necessary, successes are still very small, and attempts by civil society to push MNCs towards more acceptable practice, such as work on codes of conduct, should be seen not as an alternative but as a support or complement to legal actions. Some participants also felt that codes of conduct were valuable in establishing general, agreed principles which could then be developed on the evidence of individual cases, leading subsequently to binding legislation.
The main problem with both internal codes of conduct and international standards and guidelines is implementation. In the case of internal company codes the public relations component is invariably high; internal codes have even been described as a form of advertising, but there is a serious danger of abuse of them by companies if they are not subject to tough, independent, binding supervisory mechanisms. These should consist not of internal accounting mechanisms set in place by the company itself, but of independent mechanisms to which victims of abuses by companies can submit complaints. Without such mechanisms, codes of conduct remain at the level of a PR exercise and can be flouted or perversely interpreted by companies at will.
Another danger of internal codes of conduct is revealed when corporations change, for instance through break-up or merger. Shell, for instance, accepted a minimum code of conduct which allowed it to claim the moral high ground and bask in a good deal of credit. When Shell in Nigeria later sold off parts of the corporation to small companies far less accountable than Shell and without codes of conduct, affected workers and communities were left without even the minimal protection offered by Shell’s minimum code. Similar fears, and a strategic dilemma for those seeking MNC accountability, arise when MNCs leave an area, perhaps even as a result of successful actions against them, and smaller and even less accountable companies move in to replace them. An example is Petronas, a Malaysian-based oil company which is moving into areas abandoned by Northern oil companies. Internal, company-based codes cannot address situations of this kind: independent international mechanisms are the only option.
The weak implementation mechanisms of the relevant international codes and standard-setting instruments have been discussed above. A chief advantage of standard-setting is that it applies across the board and in many cases includes reporting mechanisms. There is still an urgent need for meaningful implementation, putting the right procedures in place and getting them applied.
In the end, codes of conduct, particularly internal ones, make corporations look and feel good without addressing the actual or potential victims, whereas legal methods are based around the victim. However, neither lawyers nor NGOs and campaigners can afford to lose sight of the double objective: to get justice for the victims of past abuses, and to put systems in place to ensure that such abuses don’t recur.
8. Strategies and Methods to Improve Corporate Liability
Sharing and comparing experiences at the seminar generated some key questions of strategy:
Can MNCs contribute positively to development, and how can they be encouraged to do so?
How can lawyers, trade unions, and NGOs work together with and for claimants?
What are the advantages and disadvantages of different strategies?
However murky the corporate smokescreen is, it remains just a smokescreen. All corporations are obliged to have legal existence, so there must be a law-based way of challenging them. The state has the right to revoke a corporation’s licence or charter. A useful strategy is to find out what the criteria are for governments to grant corporate licences and then to challenge companies on their compliance with these criteria, while at the same time lobbying governments to sharpen those criteria if they allow companies to violate human rights or destroy the environment.
In the United States, as Ward Morehouse of the UN Program on Corporations, Law and Democracy reported, such challenges are called charter revocation actions. Revocation of a corporation’s charter, its basic founding and enabling document, is a very serious sanction. There have been some successes with this strategy in individual US states, where the attorney-general or governor can revoke a company’s charter. A petition to revoke UNOCAL’s charter is currently under way,3 as is the attempt to get the government of New York state to start a charter revocation action against Union Carbide, which is incorporated in New York state.
Another basis for claims is that of false advertising. It can be effective and shaming to show that a large and famous corporation is lying. These cases tend to be brought not by victims from the host country but by campaigners in the MNC’s home country. For instance, when Nike advertised the high quality of its factories in South-east Asia, a group of activists sued it on the grounds that this statement was misleading to consumers. On this basis it could be possible to sue Shell, which has bought a good deal of space in National Geographic magazine in order to boast of its care for the environment, by bringing conclusive evidence of environmental damage caused by Shell’s operations. This kind of argument, however, presupposes a common or consensual definition of a good factory or environmental care. Lack of internationally agreed standards in these respects makes it possible for corporations to make such claims even when it is all too obvious that they care neither for their workers nor the environment.
Several participants argued strongly for further research and testing on bringing criminal charges against MNC management. The law varies from country to country, and in most places criminal charges cannot be brought against a company as such, only against its managers. Some NGOs have tried to bring criminal charges against the directors of MNCs, but so far without success. Richard Meeran pointed out that it is hard to establish criminal responsibility where personal liability has to be proven.
However, the case of General Pinochet, involving a number of countries, has excited interest among lawyers as a possible precedent, showing that an individual, even a former head of state, can be sued for abuses committed in another country. This case has had a big impact in international law, e.g. in the case of a former head of state being brought to trial in Senegal. If a key lawsuit could be brought successfully against a company in one country, e.g. on the basis of crimes against humanity, it would raise interest among lawyers outside those limits and countries, and would also serve as a deterrent against companies. A combination of criminal as well as civil action against the same MNC may be worth exploring.
Meanwhile, the campaign for an International Criminal Court, which would make companies as well as persons accountable under criminal law, continues, and the existing tribunals for trying war criminals in Rwanda or former Yugoslavia may point the way towards developing a similar mechanism applying to companies in relation to corporate violations of human rights.
The law continues to evolve, and fresh regulations are always appearing in the attempt to keep up with fresh abuses (e.g. new rules currently being established on jurisdiction in sex tourism). This makes the possibilities for legal action an ever-open book whose pages are constantly being inscribed with new cases and experiences. However, as Sam Zia-Zarifi warned, it is of the utmost importance to focus always on what the claimants want. As well as the dangers attaching to disclosure of information and its sources, there is the question of whether, if an MNC pulls out of a country under legal pressure, its successor may be even worse, or its departure may leave a disastrously gaping hole in the local economy.