Professor Flora Sapio

Comments to Article 8 of the Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprises

Article 8. Rights of Victims

1. Victims shall have the right to fair, effective and prompt access to justice and remedies in accordance with international law. Such remedies shall include, but shall not be limited to:

a. Restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition for victims.

b. Environmental remediation and ecological restoration where applicable, including covering of expenses for relocation of victims, and replacement of community facilities.

2. State Parties shall guarantee the right of victims, individually or as a group, to present claims to their Courts, and shall provide their domestic judicial and other competent authorities with the necessary jurisdiction in accordance with this Convention in order to allow for victim’s access to adequate, timely and effective remedies.

3. States Parties shall investigate all human rights violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those natural or legal persons allegedly responsible, in accordance with domestic and international law.

4. Victims shall be guaranteed appropriate access to information relevant to the pursuit of remedies. State parties shall ensure that their domestic laws and Courts do not unduly limit such right, and facilitate access to information through international cooperation, as set out in this Convention, and in line with confidentiality rules under domestic law.

5. States shall provide proper and effective legal assistance to victims throughout the legal process, including by:

a. Informing victims of their procedural rights and the scope, timing and progress of their claims in an opportune and adequate manner;

b. Guaranteeing the rights of victims to be heard in all stages of proceedings without prejudice to the accused and consistent with the relevant domestic law;

c. Avoiding unnecessary formalities, costs or delay for bringing a claim and during the disposition of cases and the execution of orders or decrees granting awards to victims;

d. Providing assistance with all procedural requirements for the presentation of a claim and the start and continuation of proceedings in the courts of that State Party. The State Party concerned shall determine the need for legal assistance, in full consultation with the victims, taking into consideration the economic resources available to the victim, the complexity and length of the issues involved proceedings. In no case shall victims be required to reimburse any legal expenses of the other party to the claim.

6. Inability to cover administrative and other costs shall not be a barrier to commencing proceedings in accordance with this Convention. States shall assist victims in overcoming such barriers, including through waiving costs where needed. States shall not require victims to provide a warranty as a condition for commencing proceedings.

7. States Parties shall establish an International Fund for Victims covered under this Convention, to provide legal and financial aid to victims. This Fund shall be established at most after (X) years of the entry into force of this Convention. The Conference of Parties shall define and establish the relevant provisions for the functioning of the Fund.

8. States shall provide effective mechanisms for the enforcement of remedies, including national or foreign judgements, in accordance with the present Convention, domestic law and international legal obligations.

9. Victims shall have access to appropriate diplomatic and consular means, as needed, to ensure that they can exercise their right to access justice and remedies, including, but not limited to, access to information required to bring a claim, legal aid and information on the location and competence of the courts and the way in which proceedings are commenced or defended before those courts.

10. Victims shall be treated with humanity and respect for their dignity and human rights, and their safety, physical and psychological well-being and privacy shall be ensured.

11. States shall protect victims, their representatives, families and witnesses from any unlawful interference with their privacy and from intimidation, and retaliation, before, during and after any proceedings have been instituted.

12. States shall guarantee the right to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement of victims, their representatives, families and victims.

13. Victims shall have the right to benefit from special consideration and care to avoid re-victimization in the course of proceedings for access to justice and remedies.

This is article affirms concepts, principles and rights contained, among others, in the following international instruments:

Article 8 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Monday 15 October 2018, from 3 to 6 PM, together with article 2.

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 8 were submitted by 4 experts. Written comments specific to Article 8 were submitted by:

  • 11 states (Azerbaijan, Bolivia Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation, South Africa)

  • 6 NGOs.

Comments by Experts

Molly Scott Cato, Member of the European Parliament, expressed her pride for the work of the European Parliament in supporting the future Treaty, and her regret for the EU’s refusal to engage in the negotiations. She conveyed the testimony of a Mexican woman activist, who attempted to obtain remedy from the harm caused by the economic activity of a Canadian TNC, but Mexican “ laws are not strong enough to resist the power of massive global companies who are larger than many countries.” Chapters of trade agreements including protection for human rights and the rights of indigenous people are not parts of legally binding treaties.

Written comments by Ibrahim Salama (OHCHR) are not available on the OHCHR website.

Ana María Suárez Franco (FIAN) expressed appreciation for the attempt to reduce barriers to access to justice, for the creation of an International Fund for victims, and for Article 8’s emphasis on judicial remedies. She suggested that Article 8 should include new elements:

  • the right for victims to present legal claims and demand reparation against any of the companies part of an economic group and involved in value chains;

  • joint responsibility for companies allegedly involved in human rights abuses;

  • right to be informed about all the different companies allegedly involved in abuses, or a rebuttable presumption of control in case of unaivailability of such information. This would ensure the principle of the equality of arms for the alleged victims;

  • the right to demand precautionary measures to stop immediately the harm or to prevent the harm until the case is decided;

  • a clause on the application of the pro-persona principle

Gabriela Quijano (AmnestyInternational) suggested to:

  • include a new article addressing key human rights, and corresponding duties and protections, of individuals and communities who are at risk of becoming victims of corporate abuse, and of human rights defenders who work to defend their rights. This should include provisions relating to access to information, participation in decision-making, meaningful and inclusive consultation, injunctive relief and precautionary measures, Free, Prior and Informed Consent of Indigenous Peoples, protection of human rights defenders and of the rights of minorities, and special provisions to address the differentiated, sometimes disproportionate and gender-specific abuses suffered by women in the context of corporate activities;

  • include an express duty of States to identify and remove barriers, and establish a clear obligation to take all measures necessary to remove or mitigate existing barriers;

  • (8.4) clearly articulate the definition of the following wording: “state” (8.2, 8.3) , “information relevant to the pursuit of remedies”, “confidentiality rules under domestic laws”;

  • (8.11, 8.12) include the protection of human rights defenders that do not fall under the categories of “victims, representatives, families and witnesses”. These paragraphs should operate outside of litigation, also in the context of work to defend and protect human rights;

Comments by States

Written comments on Article 8 were submitted by 11 states: Azerbaijan, Bolivia, Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation South Africa

Azerbaijan: the International Fund for Victims indicated in article 8 should be covered under a separate article with the view to further elaborate this matter.

Bolivia: the International Fund for Victims should be covered under a separate article. The Fund should be financed by developed countries, and by TNCs. The Fund should be regulated by states, and used also to build the capacity of developing states.

Chile: the main right should be the right to access to justice. It should be clarified whether the forms of reparation listed by Article 8 are a responsibility of states, enterprises, or both. The meaning of Environmental remediation and ecological restoration is unclear.

Paragraph 8.3 is only applicable to allegations about crimes or administrative violations.

The notion of adequate and effective remedies is vague, and allows discretionality, because it does not indicate the specific form or venues of remedies. The possibility to take action against persons allegedgly responsible for violations opens up the way to abuses.

Paragraphs 8.5 and 8.6 could be merged.

Paragraph 8.5.d should be amended by specifying victims should in no case cover the costs of litigation only with their consent.

Paragraph 8.9 excessively broadens the duties of consular and diplomatic assistance of states

It is not clear how paragraphs 8.11 and 8.12 differ from existing obligations of states to safeguard the lives and the security of persons in their territory under existing human rights conventions.

The creation of the International Fund deserves further consultation.

China: Article 8 does not create any new obligations for states, it reaffirms existing general obligations. Therefore:

  • it may be simplified, leaving the content of specific obligation to domestic and international law

  • it may enumerate the specific rights, and then combine existing applicable international law, review specific provisions one by one, to avoid creating separate victims for the treaty

  • paragraph 8.1.b can be deleted as it refers to general legal concepts, already included in the international legal documents on which this article is based;

  • out of respect for national sovereignty, the principle of extraterritorial jurisdiction requires caution;

  • state investigation is based on domestic rather than international law;

  • the right to access to information is a new concept, requiring further clarification. This concept should be understood and agreed upon based on the legal framework of each country;

  • provisions on legal assistance should be discussed based on existing national legal frameworks, to avoid creating new rules; the resource and capacity of countries should be considered, to avoid frivolous litigation;

  • the International Fund for victims requires careful consideration. It requires a separate article;

  • the enforcement of decision by foreign courts should take place in accordance with relevant bilateral and multilateral treaties;

  • the concept of diplomatic and consular channels should be clarifies. States should not be made responsible for non-compliance by market actors;

Egypt: a separate article shall be devoted for the establishment of the international fund for victims, as the establishment of this fund will be one of the major deliverables of the legally binding instrument and shall be further elaborated in a separate article.

India: Article 8 needs considerable revision. What we should try to do is to make this article more flexible. It can list out the minimum standards while leaving it the states to work out the model of implementation as per their domestic legal framework.

Mexico: the term “victim” should be replaced by a language of greater legal and procedural precision – such as “alleged victim” or “applicant” (demandante) or “initiator” (promovente). A gender perspective should be included in access to justice, remedies, and legal aid.

Exempting victims from the reimbursement of legal expenses may cause frivolous litigation.

The creation of an International Fund entails the assumption of subsidiary responsibility by state for the damage caused by enterprises, and duplicate state-based initiatives. The creation of an International Fund therefore is not appropriate.

Paragraphs 8.9 to 8.13 duplicate existing norms of international law, therefore they can be deleted.

Namibia: Namibia welcomes the establishment of a fund for victims.

Peru: the wording of this article should be more precise. Paragraph 8.1 does not specify who the holder of obligation is. The terms “environmental remediation” and “ecological restoration” are not part of international law, so they should be defined. The remainder of Article 8 places obligations that may be excessive for developing states. Paragraphs 8.8 and 8.9 should be aligned with existing processes and norms on foreign judgments and consular and diplomatic protection.

Russian Federation: the approach of Article 8 is contrary to the fundamental principles and the very concept of human rights, it undermines the integrity of justice systems through the criterion of the subject of violations of human rights. It makes the state responsible for providing individuals with a privileged protection regime, in cases when rights are violated by TNCs, but not by the state or other actors. The unjustified choice of some privileged groups or categories of rights fragments the regime of human rights protection, and reduces its integrity.

Many of the rights and procedural guarantees under Article 8 already exist in international law, therefore the detailed listing of Article 8 is superfluous.

Environmental rights do not have a universally recognized definition, therefore Article 8.1.b is not enforceable.

Class action is absent from Russian law.

Paragraph 8.3 falls outside of the scope of the convention, and it is not related to violations of human rights by TNCs and other business enterprises.

Exempting defendants from the costs of litigation may result in frivolous litigation.

The creation of an International Fund involves and understanding of its practical consequences. Such consequences are unknown.

South Africa: a definition of “victims” and “right holders” for the purpose of the Treaty should be consisìdered. Paragraph 8.1 should recognize that the family or dependants of victims, who suffer harm individually or collectively, are central to the Draft Treaty.

Paragraph 8.10 should be placed at the front.

The Chair and the Panelists are requested to share their views on the modality of the International Fund, included contributions by TNCs, and where the Fund could be located. The treaty must recognize that TNCs must contribute to implementation of the treaty.

Comments by NGOs

Asia Pacific Forum on Women, Law and Development and the Feminists For a Binding Treaty. (Representing 250 feminist organizations in Asia Pacific and globally): Article 8 should:

  • Recognise historical and structural barriers to women’s access justice and ensure gender-responsive remedies.

  • Recognise and address multiple and intersecting barriers to women’s access to justice in the context of conflicts, particularly conflicts over resources where transnational companies often plays significant role and extract profits.

  • Recognise the central role of women human rights defenders in resisting corporate abuse and impunity, during which course they face threats, attacks and even killings; and ensure safety and protection of women human rights defenders.

CETIM: the project talks about rights of victims, but we are affected by, we are the subjects and the main characters in an unequal struggle taking place on our territories. We are not just victims. We would like the word “persons affected” (afectados) to be included in the Treaty.

Congregation of Our Lady of Charity of the Good Sheperd (representing Sisters of Mercy, Mercy International Association and 13 members of the NGO Mining Working Group): Establish forums where people, in particular women, can testify, safely and privately, in regards to injustices (Article 8.11 and 8.12); and at all costs, reject forums in which foreign investors have access to private dispute tribunals.

FIAN International: include an explicit right to information about all actors in value chain, to facilitate access to justice; recognize the right of victims to make demands to actors based on their solidary responsibility; include victims’ rights to cautionary measures, to contain or avoid damage caused by business activities.

FIDH, Justiça Global, LHR, Al-Haq, ESCR-net, SOMO: article 8 on the rights to victims should explicitly mention HRDs and include their right to access relevant information, particularly in the pursuit of accountability and remedies.

International Organizations of Employers: presented the following comments on Article 8:

  • the section on “Rights of Victims” includes provisions (that appear elsewhere) that would seek to increase victims’ ability to bring extraterritorial claims against a company for violations in the context of business activities of a transnational character. This causes problems involving sovereignty;

  • the overall definition of victim as a person “alleged” to have suffered harm does not make sense as it would allow anyone to claim victim status and the corresponding rights simply by alleging that a harm occurred. It is not clear how the various forms of reparation would relate to companies and States. Also, the text does not specify how consideration for domestic and international law would be managed, especially if the two systems are incompatible;

  • the inclusion of “environmental remediation and ecological restoration” as a form of remedy that victims would be entitled to opens the door to another body of law that is not part of the IGWG’s mandate (under Resolution 26/9) and it does not clarify the relationship between the environment and human rights;

  • the provision that stipulates that “State Parties… shall take action against those natural or legal persons allegedly responsible” is ambiguous;

  • the provision that “victims shall be guaranteed appropriate access to information” in relation to “the pursuit of remedies” would mean that the principle on the production of evidence would not apply. At the same time, the provision may contradict other laws, principles and incentives governing corporate conduct;

  • the draft text encourages frivolous litigation and bad-faith actions being filed against businesses when it says that “in no case shall victims be required to reimburse any legal expanses of the other party to the claim;

  • it is not clear what the terms “satisfaction” as a form of remedy means. Similarly, it is not clear what the provision that victims’ “psychological well-being and privacy shall be ensured” means and how State Parties would “ensure” this.

Comments to Article 7 of the Zero Draft of the Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprises

Article 7. Applicable law

1. Subject to the following paragraph, all matters of substance or procedure regarding claims before the competent court which are not specifically regulated in the Convention shall be governed by the law of that court, including any rules of such law relating to conflict of laws.

2. At the request of victims, all matters of substance regarding human rights law relevant to claims before the competent court may be governed by the law of another Party where the involved person with business activities of a transnational character is domiciled. The competent court may request for mutual legal assistance as referred to under Article 11 of this Convention.

3. The Convention does not prejudge the recognition and protection of any rights of victims that may be provided under applicable domestic law.

Article 7 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Tuesday October 2018, from 10 AM to 13 PM, together with articles 6 (Statute of Limitations) and 13 (Consistency with International Law).

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 7 were submitted by 4 experts. Written comments specific to Article 7 were submitted by:

• 8 states (Chile, China, India, Mexico, Namibia, Peru, the Russian Federation, South Africa)

• 4 NGOs.

Comments by Experts

Lilián Galán, Member of the Parliament of Uruguay: it is necessary to eliminate the word “relevant”, referring to “human rights law”, because all human rights law are relevant, and this provision only expands the margins for companies and states to discuss what rights are important or not for those affected.

It is essential to have a guiding principle which provides, in case of conflicts of law, that the law most beneficial to those affected should apply. We recommend this notion is explicitly incorporated in the second paragraph of this article.

The text of this article should include provisions facilitating victims in their choice of applicable law. Victims are in a disadvantaged situation from multiple aspects, compared to companies involved. It is important to allow victims to assert their rights and make this treaty prevail over international treaties of a commercial nature.

Written comments by Nicolas Guerrero, Senior Legal Officer, WHO FCTC Secretariat are not available on the OHCHR website.

Written comments by Sam Zia-Zarifi, Secretary General, International Commission of Jurists are not available on the OHCHR website.

Makbule Sahan, International Trade Union Confederation: I would like to express that we consider article 7 on applicable law generally as helpful. We have some comments regarding the clarity of the language used, which you can find in the joint position of the trade unions.

Comments by States

Written comments on Article 7 were submitted by 8 states: Chile, China, India, Mexico, Namibia, Peru, the Russian Federation, South Africa

Chile: more precision is needed in the drafting of this article, given it relates to substantive and procedura aspects and in our opinion is written in an “open” form, which may cause divergent interpretations.

It should be debated whether the inclusion of paragraph 2 in the Draft Treaty is relevant. This article involves a complex procedure, that could lend itself to a series of abuses and divergent interpretations. One of the interpretations possible under this paragraph is that claims of human rights violations may be known by the court of a country other than the one where the fact occurred. The court may be able to apply their own national law to evaluate the conduct of the company, if national legislation on conflict of law allows. This would indirectly imply an evaluation of the conduct of the State where the fact occurred.

China: the concept of choice of law reflected in the article applies only to civil proceedings and does not apply to criminal cases.

Unlike contract cases, the applicability of law is a mandatory norm of national legal systems, which should not be altered “at the request of victims”, in line with general principles of law. Paragraph 1 of Article 7 should refer to generally applicable rule in domestic legislation, included the law relating to conflict of laws. If good reasons and a legal basis exist, provisions on conflict of law in the state of the competent court can point to laws in the state where the TNC is located. Paragraph 2 can therefore be deleted.

India: this article needs more clarity, particularly with respect to paragraph 2. The term “involved persons” need to be well defined to avoid any ambiguity. Providing a “choice of law” option needs adequate safeguards to avoid forum shopping. The Draft Treaty should provide guidace to establish a genuine relation between the violation and the chosen law.

Mexico: Mexico expressed its concerns over the following:

  • paragraph 2 allows victims to invoke the legislation of the host state of TNCs. This may provoke reservations and objections, given the national regulation of the applicable law and jurisdiction, restrictions justified by public order, or by other reasons that limit the applicability of foreign law;

  • the Draft Treaty should incorporate a language allowing Parties to produce reciprocal obligations to modify domestic legislation, to allow for actions initiated by citizens of another State party. Actions are to include those cases when, according to the domestic criteria for jurisdiction, jurisdiction can be exerted or acknowledged by more than one state.

Namibia: the purpose of MLA is to provide States the opportunity and ability to solve many complex legal issues even where a conflict of laws exists. Thus, it can be employed also with regards to this treaty.

Peru: this article is redacted in a very general form, and allows no limits to applicable legislation. In some respects it reminds of a most-favorite-nation clause. This clause originates from other fields of international law, and furthermore has ceased to be used. In this respect we echo the commentary of the Russian Federation.

We consider that this article should be sent to the International Law Commission for comments.

Russian Federation: we can not comment on paragraph 2 of Article 7. It provides for the right of the victim of a violation to require that the substantive issues be considered by the court under the law of the other Party. In general, the choice of applicable law is a category of civil law. This, as a rule, is about the right of two parties to a commercial transaction with a foreign element to agree that it will be governed by the law of any one state. In criminal proceedings, this principle, to our knowledge, does not apply. The national court examines the criminal case and passes judgment on the laws of its state, if necessary, taking into account the law of the place of the crime.

It is hard to imagine, Mr. President, that, for example, a judge in Ecuador will pass judgment on someone on the basis of the Criminal Code of the Russian Federation. Namely, this possibility is now mentioned in paragraph 2 of Article 7 – it is not limited to civil claims. But even if this is so, it is unclear how this logic relates to the principle of equality of the parties to a dispute before the law and the court.

South Africa: providing victims with the choice of the most favorable applicable law, between theat of the State where the harm occurred (home state) or where the TNC is domiciled (host state) is paramount. There are circumstances when a victim is not able to utilize the courts of the home or the host state, but those of a third state, and this needs to be taken into account.

The applicable law should make reference to competent regional courts as an avenue of remedy.

Comments by NGOs

FIAN International: we fully support Article 6. On the one hand, it corresponds to the definition of jurisdiction in a broad manner, and on the other hand, it strengthens the protection of victims as they can choose the law which is more favourable to them.

FoEI: Article 7 should be better coordinated with Article 5. It should make explicit that any dispute between States, or between a State and a TNC that may affect human rights should always primarily be subject to international human rights law, or to the legislation most favorable to persons affected.

For more details we refer to the commentary to Proyect Cero, presented by CETIM, IPS y FoEI in name of the Campaign, and to the Treaty of People we presented during the 3rd Session.

International Indian Treaty Council: none of the rights elaborated in the UN Declaration on the Rights of Indigenous Peoples are mentioned in the zero draft. Since the first session of the UN Forum on Business and Human Rights, there has been consensus that Indigenous peoples worldwide suffer the greatest human rights abuses by transnational corporations and business enterprises. We recommend that this Declaration be added to the List of Documents consulted for the preparation of this treaty. We recommend that CERD General Recommendation No. 23 on the Rights of Indigenous peoples be added to the list of documents consulted.

Article 7 fails to recognize Indigenous laws and customs. Article 11 of the UNDRIP addresses situations of redress developed with Indigenous peoples where property was taken in violation of their laws, traditions and customs.

International Organization of Employers: the text on “Applicable Law” would result in the extraterritorial application of one State’s domestic law in another jurisdiction. There are many problems with this:

  • The focus placed on expanding extraterritorial jurisdiction does not respect national sovereignty and the principle of non-intervention in the domestic affairs of other States.

  • The provisions take the focus off the need for States to improve victims’ access to effective remedy at the domestic and local level.

  • They ignore the practical and procedural shortcomings of extraterritorial jurisdiction

  • Furthermore, this text contradicts the internationally recognized principle of the Rome II Regulation – under which the law in the jurisdiction where the tort occurred applies in general.

Professor Sapio is the holder of a research position at the University “Orientale” in Naples, Italy. The views and opinions expressed on this website are her personal views only.

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