through the duration, frequency, intensity or the nature of that relationship, exists between the perpetrator and the company. 19 It remains to be seen how domestic and international courts and tribunals will utilise the Principles outlined by the ICJ however, in the interim, they provide guidance to NHRIs on the manner in which the law is likely to progress. Non-legal Concepts of Complicity There are also a range of situations where social actors, from non-government organizations to investment funds, have relied on the concept of complicity to address or modify corporate conduct beyond the legal sphere. Such attempts often use standards that are broader than the legal tests referred to above. By way of example, Principle 2 of the United Nations Global Compact simply states that “Businesses should make sure that they are not complicit in human rights violations”.20 Complicity in this broad sense may be considered to encompass situations were a company benefits from, but is not otherwise involved in the commission of human rights abuses committed by someone else; or where a company is aware of human rights violations, but fails to raise concerns with the appropriate authorities. Corporations may seek to avoid broader claims of complicity through various mechanisms such as the development of human rights impact assessments to identify areas of risk; the promulgation of explicit human rights policies that are applicable to the corporation and its subsidiaries, and the conduct of due diligence procedures throughout its supply chain. What jurisdictional barriers exist in enforcing human rights obligations against corporations? A variety of barriers limit the capacity of victims to obtain effective redress for violations of human rights committed by TNCs. Amongst other things, such barriers may relate to the TNC itself (for example, its corporate structure), the limitations imposed by domestic laws relating to the incorporation of business enterprises, (for example, separate legal personality and limited liability), and the failure of the legal jurisdiction in the home or host State to provide a means for seeking redress for certain violations. Substantive barriers include: • Separate Legal Personality. Providing a corporation with legal status in its own right, and distinct from the legal personality of its shareholders, directors and managers, is a legal assumption that is universal across many countries. Developed to accommodate the shared commercial objectives of a group of individuals, separate legal personality protects members and directors from personal liability by viewing the corporation as an independent body or 'legal person'. As a result, a corporation can be found directly or indirectly liable in its own right for civil and criminal acts. However, where a company is involved or complicit in human rights violations, the implications of separate legal personality can shield corporate decision makers from personal accountability for their actions. Similarly, in shielding shareholders, the effective owners have less incentive to monitor the risk associated with corporate activities. • Corporate Structures. Corporations are often organised in a group structure. Such an approach legitimately facilitates the diverse operations of a parent corporation and its subsidiaries. However, such structures, in association with separate legal personality, can also be used to quarantine liability by placing responsibility for potentially high risk or hazardous operations in a separate corporate organisation. Where this is done in such a way as to avoid the consequences of such hazardous activities, for example by ensuring that the separate corporation has no assets to cover foreseeable liabilities, it acts as a 19 Report of the International Commission of Jurists Expert Panel on Corporate Complicity in International Crimes. International Commission of Jurists. 2008. Volume 1 @ 10 - 23 20 UN Global Compact. Text and Commentary available at: www.unglobalcompact.org Last accessed 8 February 2009. - 12 -