Differentiated corporate legal consciousness in international human rights disputes: security and transnational oil companies in Sudan

Over the past decade or so, human rights have emerged as an important paradigm for framing disputes over corporate social responsibility. This paper identifies challenges in addressing human rights issues related to corporations, focusing on the varieties of legal consciousness among transnational corporations.

The premise of the paper is that when transnational corporations have operations outside the national borders of their home base, they bring to those operations particular attitudes toward law and behavioural responses to law - legal consciousness - that are partially a reflection of their national origin.Consequently, the diversity among transnational corporations is substantial, and creates serious challenges in efforts to implement a naming and blaming methodology when institutionalising international human rights in corporate social responsibility.

To illustrate these challenges, the paper looks at the contrasting responses of two transnational corporations - China National Petroleum and Talisman Energy of Canada - to human rights concerns in their joint Greater Nile Project in Sudan.

Emphasis is placed on the conception of legal consciousness - the idea that legal consciousness is how ordinary people, as opposed to legal experts and professionals understand and make sense of law. Instead of assuming a uniform legal consciousness when crises arise in a particular jurisdiction, the paper treats legal consciousness as varied among groups of individuals differently situated in the crisis, in this case differentiating between the legal consciousness of the two transnational corporations involved in the project.

The paper examines two forms of corporate legal consciousness:

• where social responsibility requirements of transnational corporations are viewed in terms of “embedded human rights” - in order for these corporations to profit from their foreign investments, they must embed their business activities within the local social community
• where social responsibility requirements of transnational corporations are viewed in terms of “human rights as boundaries on frontiers” - the point of overseas operations is to secure a particular resource or raw material rather than simply a profit motive

The paper concludes that all multinational corporations cannot be assumed to share a similar legal consciousness.The Talisman example illustrates that for those transnational corporations that embrace a corporate legal consciousness of embedded human rights, the naming and blaming methodology is likely to be an effective one. For China National petroleum this has been less effective.