The UNEP reports were prepared to help inform governments ahead of the WSSD. Before the opening of that summit, some participants in the preparatory meetings were already disillusioned with what it would achieve. Efforts were effectively beached in Bali, at the Fourth Preparatory Committee Meeting, according to the NGOs Consumers International, Danish 92 Group, Friends of the Earth, Greenpeace, Oxfam, The World Wide Fund for Nature, and ANPED, who released a joint statement that said: 'Hardly any country can leave Bali without embarrassment. The list of guilty parties is a long one, but it starts with the three who shamelessly hijacked the process in Bali: the United States, Australia and Canada. They are abandoning their responsibilities to their citizens and to poor people across the world.' 27

Some saw the WSSD as an irrelevance from the start, as it was likely to have no mechanisms for implementation and leave those international institutions with a major impact on development, such as the World Trade Organisation (WTO), World Bank and International Monetary Fund (IMF), beyond the scope of any agreement reached. Nevertheless, the NGOs said they were 'appalled at the unwillingness of powerful countries to align international trade rules with sustainable development'. Interestingly, their press release was carried on the website of Business Action for Sustainable Development (BASD), which was co-ordinating the contributions of the World Business Council for Sustainable Development (WBCSD) and International Chamber of Commerce (ICC) to the Johannesburg summit.

So did these organisations share the same frustrations as NGOs? Yes and no. In June, WBCSD president Björn Stigson told Reuters, 'I think we are taking a lot of responsibility dealing with these issues, and some governments aren't.' 28 He highlighted the intransigence of the US administration on issues such as the Kyoto agreement as not helping the international business environment. 'We see sustainable development as a real issue for society. Businesses cannot thrive and be successful in societies that fail', he said.

So what should governments have been doing at the WSSD to make societies succeed? There seemed to be some confusion. A range of NGOs and trade unions were pushing for a 'corporate accountability convention' to be agreed. Friends of the Earth described this as 'a legally-binding international treaty which requires international companies, wherever they operate, to adopt best practice in their operations and to be accountable for their environmental and social damage to citizens and communities'. 29 Yet the Vice Chair of BASD, Lord Holme, said previously that calls for such governmental action were a compromise with a 'fundamentalist minority' and should not be an outcome of the WSSD. 30

In the run-up to Johannesburg the BASD and WBCSD websites did not have any detailed proposals for effective governmental and intergovernmental intervention to support a more sustainable and equitable functioning of the global market, and focused instead on company best practice. 31 One special report on sector-wide initiatives for the WSSD did note that 'sustainable development is too big for companies to handle individually, regardless of their size' and called for more co-operation between companies, but stopped short of saying this meant government needed to intervene. 32

Calls for a corporate accountability convention were being taken more seriously in other circles. The Royal Institute for International Affairs (RIIA) asked the question: was Corporate Accountability in Search of a Treaty? in a briefing paper published in May. 33 The paper summarises the cases of Thor Chemicals and Cape Asbestos Company, who were both prosecuted in the UK for transgressions in South Africa (and both resulted in out-of-court settlements), and explores how an international convention might affect these instances of 'foreign direct liability' (FDL) and, therefore, corporate social and environmental performance.

Report author Halina Ward ponders whether we should really be encouraging Western courts to take on more of these cases rather than tackling problems with the state of legal systems in some Southern countries. However, she suggests that, if FDL actions are supported by a convention, then MNCs might become advocates of better legal systems in developing countries, rather than undermining them. In this sense a convention might serve as both as a stopgap measure and as a catalyst.

The report does not explore the way FDL and a corporate accountability convention might act as a deterrent for future transgressions. As it seems not many businesses or their stakeholders are currently aware of FDL, perhaps a convention might add greatly to the profile of home-country prosecutions and add to the deterrent effect of such? More research on the matter is required.

Studying this area may become important as there is a trend for more FDL actions. This trend has prompted World Monitors to launch a quarterly report on case law developments in business and human rights. 34The key issue in FDL cases is whether courts decide that it would not be possible for the plaintiffs to receive justice in the country where the abuses are alleged to have taken place—and they are increasingly deciding that they would not.

For example, in June, a California State Court judge ruled that the lawsuit claiming oil company Unocal Corp. was complicit in human rights abuses committed by the Myanmar (Burma) military regime will go to trial in September. A Federal Court action asserting similar claims against Unocal had been dismissed on summary judgement grounds in August 2000. The lawsuit was filed in 1996, and alleges that Unocal was partly responsible for human rights violations committed by the Myanmar military junta during the construction of a pipeline, in which Unocal was a joint-venture partner with the Myanmar military government. The suit alleges that Unocal and its partners, including TotalFinaElf, were aware that forced labour was to be used before they agreed to build the pipeline. The plaintiffs' co-counsel, civil rights lawyer Paul Hoffman, said he hoped that 'this will serve as a message to Unocal and other firms that deal with regimes engaged in human rights violations that if you do business with the devil you can be held responsible for the devil's work.' 35