For the next two weeks I am based at the University of the Witwatersrand in Johannesburg as a visiting researcher. South Africa and its extraordinary transformation from Apartheid to democracy is of course of great interest to a human rights scholar. I spent the week end immersing myself into the country’s troubled past and visited the highly recommended Apartheid Museum, as well as the famous township of Soweto.
On Wednesday 16 October I will deliver a lecture entitled “Should Multinational Corporations be Held Liable for Having Done Business with the Apartheid Regime?” The question is undoubtedly controversial and has been specifically looked at in two separate and prestigious forums: the South African Truth and Reconciliation Commission (TRC) and US Federal Courts. I wrote about the proceedings before US Courts in a previous blog post.
The issue of liability is of both a moral and legal nature. Establishing liability in law necessarily implies a strict chain of causation, and as demonstrated by the Apartheid litigation in the United States, complex jurisdictional questions arise that can stand in the way and prevent the case from being considered on the merits. By contrast, if one phrases the question as a purely moral one, it is much easier to establish links between global business and rogue regimes, such as the Apartheid regime. The TRC adopted the latter approach and although it is more cautious in other parts of the report it eventually concluded, quite bluntly, that
Business was central to the economy that sustained the South African state during the apartheid years. Certain businesses, especially the mining industry, were involved in helping to design and implement apartheid policies. Other businesses benefited from co-operating with the security structures of the former state. Most businesses benefited from operating in a racially structured context. [TRC Report, Vol IV, Chapter 2, para. 161].
What is particularly interesting in the South African example is that room was made for the question of liability to be approached from both moral and legal angles, arguably allowing for a better and perhaps more balanced understanding of the issues.