A/HRC/8/5
page 20
this would include cases in which they were not a causal agent, direct or indirect, of the harm in
question. Nor is it desirable to have companies act whenever they have influence, particularly
over governments. Asking companies to support human rights voluntarily where they have
influence is one thing; but attributing responsibility to them on that basis alone is quite another.
70. Moreover, influence can only be defined in relation to someone or something.
Consequently, it is itself subject to influence: a government can deliberately fail to perform its
duties in the hope or expectation that a company will yield to social pressures to promote or fulfil
certain rights - again demonstrating why State duties and corporate responsibilities must be
defined independently of one another.
71. Finally, the emphasis on proximity in the sphere of influence model can be misleading.
Clearly, companies need to be concerned with their impact on workers and surrounding
communities. But their activities can equally affect the rights of people far away from the
source - as, for example, violations of privacy rights by Internet service providers can endanger
dispersed end-users. Hence, it is not proximity that determines whether or not a human rights
impact falls within the responsibility to respect, but rather the company’s web of activities and
relationships.
72. In short, the scope of due diligence to meet the corporate responsibility to respect human
rights is not a fixed sphere, nor is it based on influence. Rather, it depends on the potential and
actual human rights impacts resulting from a company’s business activities and the relationships
connected to those activities.
D. Complicity
73. The corporate responsibility to respect human rights includes avoiding complicity.
The concept has legal and non-legal pedigrees, and the implications of both are
important for companies. Complicity refers to indirect involvement by companies in human
rights abuses - where the actual harm is committed by another party, including governments and
non-State actors. Due diligence can help a company avoid complicity.
74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and
abetting international crimes, i.e. knowingly providing practical assistance or encouragement that
has a substantial effect on the commission of a crime, as discussed in the 2007 report of the
Special Representative.46 The number of domestic jurisdictions in which charges for
international crimes can be brought against corporations is increasing, and companies may also
incur non-criminal liability for complicity in human rights abuses.
75. In non-legal contexts, corporate complicity has become an important benchmark for social
actors, including public and private investors, the Global Compact, campaigning organizations,
and companies themselves. Claims of complicity can impose reputational costs and even lead to
46
A/HRC/4/35, paras. 22-32.
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