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Professor Flora Sapio

Comments to Article 10 of the Zero Draft of the legally binding instrument to regulate the activities of transnational corporations and other business enterprises

Article 10. Legal Liability

1. State Parties shall ensure through their domestic law that natural and legal persons may be held criminally, civil or administratively liable for violations of human rights undertaken in the context of business activities of transnational character. Such liability shall be subject to effective, proportionate, and dissuasive criminal and non-criminal sanctions, including monetary sanctions. Liability of legal persons shall be without prejudice to the liability of natural persons.

2. Civil liability shall not be made contingent upon finding of criminal liability or its equivalent for the same actor.

3. Where a person with business activities of a transnational character is found liable for reparation to a victim, such party shall provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

4. Subject to domestic law, courts asserting jurisdiction under this Convention may require, where needed, reversal of the burden of proof for the purpose of fulfilling the victim’s access to justice.

Civil Liability

5. State Parties shall provide for a comprehensive regime of civil liability for violations of human rights undertaken in the context of business activities and for fair, adequate and prompt compensation.

6. All persons with business activities of a transnational character shall be liable for harm caused by violations of human rights arising in the context of their business activities, including throughout their operations:

a. to the extent it exercises control over the operations, or

b. to the extent it exhibits a sufficiently close relation with its subsidiary or entity in its supply chain and where there is strong and direct connection between its conduct and the wrong suffered by the victim, or

c. to the extent risk have been foreseen or should have been foreseen of human rights violations within its chain of economic activity.

7. Civil liability of legal persons shall be independent from any criminal procedure against that entity.

Criminal liability

8. State Parties shall provide measures under domestic law to establish criminal liability for all persons with business activities of a transnational character that intentionally, whether directly or through intermediaries, commit human rights violations that amount to a criminal offence, including crimes recognized under international law, international human rights instruments, or domestic legislation. Such criminal liability for human rights violations that amount to a criminal offence, shall apply to principals, accomplices and accessories, as may be defined by domestic law.

9. Criminal liability of legal persons shall be without prejudice to the criminal liability of the natural persons who have committed the offences.

10. Each State Party shall, in particular, ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.

11. Where applicable under international law, States shall incorporate or otherwise implement within their domestic law appropriate provisions for universal jurisdiction over human rights violations that amount to crimes.

12. In the event that, under the legal system of a Party, criminal responsibility is not applicable to legal persons, that Party shall ensure that legal persons shall be subject to effective, proportionate and dissuasive non-criminal sanctions, including monetary sanctions or other administrative sanctions, for acts covered under the previous two paragraphs.

Article 10 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on 17 October 2018, from 10 AM to 13 PM, together with articles 11 (Mutual legal assistance), and 12 (International cooperation).

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 6 were submitted by 4 experts. Written comments specific to Article 6 were submitted by:

  • 10 states (Azerbaijan, Chile, China, Egypt, India, Iraq, Mexico, Namibia, Peru, Russian Federartion)

  • 2 observer states (the Holy See and Palestine)

  • 11 NGOs

Comments by Experts

Surya Deva, UN Working Group on Business and Human Rights: one important contribution that the proposed legally binding instrument could make is to improve access to effective remedies for business-related human rights abuses. The Working Group in its 2017 report to the UN General Assembly outlined what an effective remedy means under the Guiding Principles. This report stresses that rights holders should be central to the entire remedy process. The remedial process should be gendersensitive and rights holders (including human rights defenders) should be able to seek remedies without any fear of victimization. Moreover, rights holders should be able to seek, obtain and enforce a “bouquet of remedies” which have preventive, redressive and deterrent elements.

Article 10 of the zero draft contains no details related to administrative penalties, and does not give enough attention to preventive remedies, which may arise due to non-compliance with mandatory human rights due diligence or otherwise. The obligation under Article 10(1) should be limited to regulatory targets within the territory or jurisdiction of the relevant States. It is also doubtful whether courts “may require, where needed, reversal of the burden of proof” under Article 10(4). Rather, legal reforms would be needed. Article 10(8) seems to limit liability to “intentional” commission of human rights violations amounting to a criminal offence. This may be quite restrictive and not in line with existing State practice.

The liabilities contemplated under Article 10 are likely to involve courts or tribunals. The value of non-judicial state mechanisms such as national human rights institutions (NHRIs) should not be overlooked. The proposed instrument should, therefore, include a role for NHRIs in facilitating access to remedies.

David Bilchitz, University of Johannesburg: the Guiding Principles on Business and Human Rights and other initiatives lack hard consequences for those violating human rights. The treaty places an obligation clearly on states to ensure liability for violations of human rights.

Existing state-based regimes for holding corporation to account are inadequate. The approach adopted in the Zero Draft fails to adequately recognize these problems. Two options exist: international law may impose clear direct obligations on corporations, or a country may create liability on the corporation based within it, for harms caused in a second country. The Zero Draft adopts the second alternative. There are problems with this alternative: it is not clear all jurisdictions will pass equally effective laws; given a number of countries are refusing to sign or ratify the treaty, a direct route would offer a more secure basis for access to remedies. To remedy the accountability gap it is important that the treaty recognize direct obligations for corporations. Failure to realize these obligations should be a ground of liability.

The draft treaty at present does not expressly engage with corporate law. This is very strange given that one of the core targets of the treaty is the corporation. The draft treaty contains provisions that attempt to address decision-making within a corporation – yet, those provisions strangely do not mention corporate law and the need to shift legislation in that regard. The treaty should require a change in corporate law to place a fiduciary duty on directors to ensure company activities conform with their obligations to respect (and arguably to protect and promote) fundamental rights. The missing link in provisions of Article 10 is the need to recognize upfront obligations on the decision-makers of a company. Doing so could help develop article 10(6), and, in particular, the second part of this article which currently conflates two different considerations – causation and relationship – which should be kept apart.

Article 10(6) proposes three criteria for an imposition of liabilities on corporations. Currently, the approach adopted in the treaty is to try and avoid engaging with the piercing of the veil by focusing on the responsibilities of the parent or lead company itself. Yet, doing so, may also fail to draw on some of the resources that corporate law already has for when the veil should be pierced. It also can fail to engage with the continuities between human rights law and company law in this respect. I would suggest that we draw on existing texts in the treaty. The central enquiry in any case where there is a violation by one entity that is connected to another must be whether in substance rather than in form the parent company can be said to be responsible for the actions of the subsidiary or contractor.

Richard Meeran, Leigh Day: the objection that restrictions of the Zero Draft to “business activities of a transnational character” would exclude access to remedy against state owned companie sis exaggerated. There are presumably already laws in place locally that should make state-owned companies liable for HR abuse. Problem is inability to obtain practical access to justice at all in developing countries. Extending wording to include national companies won’t change this.

Article 10: it is not stated in the Zero Draft, but the obligation/duty under article 10 presumably is the due diligence duty under Article 9 (Prevention).

Article 10.6: its wording is unclear but it seems to be contemplated that liability will broadly corresponds to the position under UK law, that businesses will be liable for harm (a) caused by activities and/or subsidiaries over which they have control (b) that they should have foreseen. Various concern have been expressed about Article 10.6:

(a) whether it may be limited to MNC parent subsidiary relationship and if so whether MNCs might rearrange their business relationships by not having subsidiaries; whether liability arises from the conduct of MNCs; whether MNCs could avoid liability by dealing directly with suppliers. I think Article 10.6(b) is intended to cover all of these concerns.

(b) whether Article 10.6 covers MNCs that are complicit in human rights violations by public security. I think they are meant to be.

Of course proving legal liability crucially depends on victims having access to internal corporate documents. This difficulty especially acute in MNC home states that only provide for limited disclosure. In this regard: under Article 8.4 victims shall be guaranteed appropriate access to information relevant to the pursuit of remedies.

Written comments by Maddalena Neglia, FIDH, are not available on the OHCHR website.

Comments by States

Written comments on Article were submitted by

Azerbaijan: expressed concern over the definition and the scope of “universal jurisdiction” under Article 10.11. Sometimes violations by TNCs are taking place in conflict or post-conflict situations, on territories of one state that are occupied by another state. In this case we would like to ask you to help us understand which state shall bear the responsibility for such violations, and the courts of which state will be in position to study the case. We also see the need to work on the definition of the term “business activities of a transnational character”, to cover activities taking place in conflict and post-conflict situations.

Chile: the notion of international jurisdiction in Article 10.11 is still an object of wide discussion at the Sixth Committe of the United Nations. Because of this reason, we express our reservation on this matter.

China: the term “universal jurisdiction” is often used, but it is differently understood. From 2009 until now, the Sixth Committee of the United Nations most accurately reflects the national official position on major issues of international law. Issues about the scope and application of universal jurisdiction have made no real progress. Universal jurisdiction is not a legal concept that is mutually recognized. Given there is no uniform definition, in practice the concept may be abused at the expenses of courts. Problems that states cannot solve at the Sixth Committee cannot be solved in this working group. In addition, universal jurisdiction is not directly related to the subject matter of legal liability under Article 11. We believe use of this vague and easily abused concept is neither necessary nor appropriate, does not facilitate consensus, and the term universal jurisdiction should be deleted.

The reversal of the burden of proof is an exception to general laws, and it depends on the provisions of national legislation.

Egypt: we emphasize the importance of taking into account the inconsistency between national laws and the provisions of the Zero Draft. We believe that further drafting is necessary to ensure the effective implementation of Article 10 in the future. In a number of national jurisdiction is common practice that the burden of proof lies with the respondent, therefore Article 10.4 runs counter to those laws.

India: we believe Article 10 cannot be insulated or be in conflict with corporate law but, in fact be harmonious with the corporate structure and the corporate legal architecture. We believe both Articles 10 and 11 need more clarity as certain elements have the potential to infringe upon the sovereignty of states. We believe terms like ‘universal jurisdiction’ need more clarity. We are also the view that additional grounds for refusal of legal assistance which are already provided in the United Nations Conventions against Corruption and Transnational Organized Crimes should also be part of this article as they factor in the sovereign rights of states.

Iraq: there is a contradiction in Article 10, since the article imposes criminal, civil and administrative penalties on natural or legal persons, and then at the end of the text denies responsibility for legal persons acting through natural persons. Therefore the imposition of a criminal punishment on the natural person represented by the legal person and the decision-maker is a matter of necessity. Provisions of the Zero Draft need to adopt a more concrete legal formulation, before the responsibility and punishment can be determined.

Mexico: suggested to amend Article 10.6 as follows

6. All natural and legal persons with business activities of a transnational character shall be liable for harm caused by violations of human rights arising in the context of their business activities, including throughout their operations:

a. to the extent they exercize control over the operations, or

b. to the extent it exhibits sufficient control or influence over its subsidiary or entity in its supply chain and where there is strong and direct connection between its conduct and the wrong suffered by the victim, or

c. to the extent risk could have been foreseen or should have been foreseen of human rights violations within its chain of economic activity.

Mexico suggested to adopt a broader formulation, similar to the one of Article 9.1, uniting the words “resulting from or associated with” and “impact on human rights”, so the standard of protection is not limited to direct causality, but also include the foreseeability of an event, in the case of indirect causal relations involving subsidiaries, controlled enterprises, or production chains. Article 10.6(b) may be modified. In private law, there is no uniform practice among states to attribute distinct types of responsibility to legal persons, or to quantify damage and the modalities of its reparation. Therefore the Zero Draft could signal how different types of responsibility deriving from different violations of human rights should be regulated according to domestic legislation.

The delegation supported the reversal of the burden of proof under Article 10.4, stating states have no obligation to amend their domestic legislation to comply with Article 10.4, but they can regulate the possibility of reversing the burden of proof through their national legislation.

The delegation suggested panelists to express their opinion on Article 10.8, given proving the existence of the subjective element of intent can be difficult in practice.

The Mexican delegation also asked the following questions to Professor Bilchitz:

How do you estimate that the implementation of the direct obligations you propose would be made, if not through the same States? Do you not consider it necessary to strengthen the internal legal capacity for regulation, and to increase the level and precision of international cooperation and mutual legal assistance?

Namibia: under article 10, proportionate and dissuasive non-criminal sanctions, including monetary sanctions, can be considered. This is set out in instruments like the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and provides for some useful flexibility. The UNCAC for example also requires States to “establish the liability” of corporations for offenses under that Convention, whether that be criminal or, in States whose legal systems do not permit criminal prosecution of legal persons, then “effective, proportionate and dissuasive” civil or administrative sanctions.

Intention as stated in Article 10 (8) is an element of crime in many legal systems and requires that the criminal act must be on purpose. However, the foreseeability test provides for a viable alternative to this stringent requirement, which is often difficult to proof. This can indeed be helpful if incorporated as stated by Mr. Deva.

As indicated yesterday during the discussions under Article 6 (Statue of limitation), the process of piercing of the corporate veil is not an easy one and can be an obstacle to indigent victims, especially in developing States. Article 10(6) can be enhanced in this regard, keeping in mind the challenges with the enforcement of laws in States with weaker governance structures as the abuses taking place at the hands of TNC’s in such States are often more severe.

We prefer the flexibility of article 10(4) on the burden of proof, making the reversal subject to domestic law, because reversal of the burden can be problematic for some states.

Peru: we consider that this article should be sent to the International Law Commission for comments.

Russian Federation: criminal liability of legal entities does not exist in the Russian legal system, and this obligation would obstacle Russia’s accession to the treaty. Existing problems in this article are not solved by paragraph 12, because criminal responsibility is a key principle of Article 10.

Article 10.12 contains vague wording (effective and proportionate and dissuasive non-criminal sanctions) that may be used as a pretext for potential accusations of non-compliance. There are other expressions which meaning is not clear, such as “or its equivalent”, “control over operations, sufficiently close relation, strong and direct connection”, “crimes under international law”.

Article 10.11: universal jurisdiction exists also for the most serious crimes under international law. There is no sufficient basis to expand universal jurisdiction to essentially all human rights violations. The words “where applicable under international law” further confuse the situation because universal jurisdiction only applies to crimes for which is already recognized. There is no need for an additional confirmation.

Article 10.4: requires additional thought, because the reversal of the burden of proof does not exist in the legal systems of many countries. The reversal is used when the parties are clearly not equal, but the Zero Draft deas with formally equal participants. We do not object to such an option, but it would be accompanied by clear guarantees that the reversal of the burden of proof does not prejudice the principle of equality of all before the court.

The authors of the Zero Draft should clarify the meaning of Article 10.3, since as a general rule the state has no responsibility for the actions of private individuals.

Comments by Observer States

The Holy See: the rights of business companies are backed up by hard laws and strong enforcement mechanisms, while their obligations are backed up only by soft laws, like voluntary guidelines.

Article 10 of the zero draft represents a good basis for defining legal liability, overcoming the realm of public law, by assigning to domestic law the capacity to hold natural and legal persons “criminally, civil or administratively liable for violations of human rights in the context of business activities of transnational character”. Legal liability results in a combination of public and private law with substantive and procedural elements. Through the provision of Article 10.8, the offences and their authors are defined with sufficient clarity, accentuating that criminal liability of a legal entity does not exclude the personal individual criminal responsibility of company directors or managers. Through the inclusion of the reversal of the burden of proof there is a clear effort to balance, in the contest of huge power and resources asymmetries, the differences between corporations and affected local communities. Such a language represents a good basis for the negotiation.

Palestine: the creation of a uniform international rule on the civil and criminal liability of TNCs by the draft treaty would be a positive step. To the effect, certain points need to be highlighted. We should look for ways to create accountability for corporations that are enabling, aiding and abetting violations of international law and human rights especially in cases of occupation and conflict-affected areas. Criminal liability of the corporate actors should be universally defined within this Treaty. This should not be subject only to ‘domestic law’ and we ask for this limitation to be removed from the text, we also ask that criminal liability is not only limited to intentional cases.

Comments by NGOs

Brazilian AIDS Interdisciplinary Association (coordinating a group of 17 NGOs in Brazil): the obligations of states and TNCs must be addressed in separate topics. We suggest that the following phrases are included: (a) TNCs are liable civilly, administratively and criminally for all obligations listed in this Convention that are; (b) States Parties must establish administrative, civil and criminal liability for TNCs and their managers.

It must not matter if States and TNCs operate as perpetrators or accomplices of violations. We believe the Convention must make clearer the relation between the main company and its subsidiaries, licensees, subcontractors and so forth. States parties must provide for sanctions, including the dissolution of the TNC, and oblige the TNC to pay the fees. We also suggest to exclude the references to “domestic law”, since some states do not have provisions of such kind and it may put in jeopardy the scope of this Convention.

CETIM: Article 10 should be the heart of the Zero Draft. It could be improved as follows:

  • introduce direct civil and criminal liability for TNCs

  • the text mentions administrative liability, but does not develop it, neither it specifies administrative punishments

  • introduce the direct responsibility of states for actions or omissions of enterprises under its control, direction, or authorization, or that expressely or tacitly exert delegated government authority

  • article 10.4 can lose all its force because it is subordinated to domestic law

  • the expression “subject to domestic law” should be eliminated

  • the formulation of Article 10.6 is vague and insufficient even though this is one of the most important articles. The use of terms should be improved, and the concept of global value chain or global production chain should be introduced. The term “control” is not defined. Article 10.6(b) is broad and underminate, and can be easily eluded. Improve the consistency in language

  • Article 10.8: introduces a notion of criminal intent, that should be eliminated. The concept of “intermediaries” should be defined

  • Article 10.12 introduces a way out, that should be revised in light of the first sentence of Article 10.8 as “in case that, according to the legal system of a party, criminal responsibility is not applicable to legal persons” (En caso de que, según el ordenamiento jurídico de una Parte, la responsabilidad penal no sea aplicable a las personas jurídicas,)

Corporate Accountability International: the draft does not include several key elements provided in the “Elements document” presented during the third session, rather taking on board too many proposals made by countries and other entities hosting and supporting TNCs. We regret that the zero draft does not include direct obligations to TNCs nor explicit provisions on administrative, civil and criminal liabilities of their managers. Such responsibilities shall moreover extend to all links in the supply chain of the TNC in question, in order to lift the corporate veil and to determine all responsible of violations, without impunity.

We appreciate the inclusion of a provision on the reversal of the burden of proof for the purpose of fulfilling the victim’s access to justice, even if we think this provision should rather be included in article 8.

Confederación Sindical Internacional: Article 10 should be strengthened as follows:

  • the reversal of the burden of proof should be mandatory, and states should modify their internal legislation

  • TNCs should be responsible for human rights violations in all of their ativities, including those of production chains, regardless of the modality of their establishment, of ownership or control

  • crimes should be broadly defined, introducing the responsibility of legal persons, and by establishing a duty for states to modify their internal legislation

  • mandatory due diligence should be complemented by a legal liability defined by the Binding Treaty

  • responsibility should be introduced for direct violations, but also for complicity

  • we observe the absence of responsibility of states for actions and omissions of enterprises under its control, direction, or authorization, or that expressely or tacitly exert delegated government authority

FIAN: We can not pretend to develop a country and ensure the prosperity of its people if the draft treaty does not clearly and unambiguously mention the direct obligations of Transnational Corporations to respect the rights of countries and peoples. Liability should be linked to the reissue of accounts throughout the chain, the overall production of its companies (parent company, schedule, suppliers, franchises ……). Articles in the text that refer to legal, criminal and administrative liability must be reformulated in the sense of obliging TNCs to respect human, economic rights; political, social, cultural and environmental issues. The treaty is not supposed to legislate and create new rights; it should be an effective tool to enforce the legal arsenal that already exists and that humanity has paid dearly for.

FIDH: when it comes to the civil liability described in 10.6 and its relation to article 9, the Draft could benefit from distinguishing two grounds of liability:

1. Liability for lack of compliance with due diligence obligations;

2. Liability for human rights violations by entities with sufficient proximity to the company under scrutiny.

Regarding the second ground of liability, we strongly advise deleting article 10.6.a and using the ‘proximity’ condition where control is assumed under certain conditions, for example, ownership. Further specificity would be welcomed here in order to prevent the notion of ‘sufficiently close relationship’ from being restrictively understood.

Furthermore, drafters need to ensure liability for violations by ‘sufficiently proximate actors’ does not encourage companies to artificially reduce proximity.

Article 10.4 is positive but needs further strengthening in order to close existing accountability gaps. Therefore, the draft should create a more specific obligation that indicates when the reversal of the burden of proof is necessary, which shouldn’t be discretionary. We strongly advise to make it obligatory in the final draft, which would require greater detail as to when the burden of proof was to be reversed (such as where access to information is denied).

Article 10(11): since most human rights violations will not amount to international crimes, the significance of this article is limited.

Article 10(12) potentially undermines other provisions in Article 10, deferring to national law in determining whether legal persons can be subject to criminal liability. While the possibility of administrative liability is introduced under 10.1, it is not developed in the Zero Draft.

Friends of the Earth Palestine: some states and corporations are both involved in human rights violations and therefore, distinguishing the actions of corporations as abuses, simply ends up shielding corporates from full duties. Article 10 needs to be explicit and unequivocal in creating a uniform rule that imposes criminal, civil and administrative responsibility on transnational corporations – including the entire value chain – and obliges all states to enforce it. Criminal liability can not be limited to ‘intentional’ cases as this has served repeatedly as smokescreen for TNCs to continue their human rights violations in Palestine. We finally need to insist that ‘special attention’ to be given to conflict areas, as mentioned in article 15 is far too vague to have effect. TNCs and states should have special independent obligations, in particular in cases of crimes under the Rome Statute.

International Association of Democratic Lawyers: supply chains are mentioned in Article 10.6, but this is an equivocation, because supply chains should be defined in Article 4, to clarify the definition of TNCs and the relationship with its supply chains. The expression “sufficiently close relations” is vague and imprecise, and words as “strong” and “direct connection” are problematic. In the dialogue among Articles 9, 10, and 13 the transnational nature of this instrument has been sacrificed to the obedience to concepts of sovereignty and territorial integrity.

International Commission of Jurists: suggested to revise article 10.6 to focus on certain kind of relationships, adopting more precise and standard notions of causality and contribution, proximity and foreseeability, [but adding an element of strict liability in the equation [to more robustly encourage the adoption of strong human rights due diligence by the parent/controlling company.]

Article 10.8 calls for criminal liability for all human rights violations amounting to criminal offences under international law and “domestic law”, opening too large a window for divergent and potentially arbitrary approaches. At the present stage, the most practical option would be allowing states a certain degree of flexibility, while ensuring that all offences are defined with sufficient clarity to meet the requirements of legality. [International practice offers several good examples in terms of the degree of flexibility for ensuring legal accountability of businesses enterprises, which may be seen in the extended statement in our website. ]

To provide legal certainty and due process, crimes recognised under international law or for which international law require the imposition of criminal sanctions should be incorporated as part of national criminal law applicable to business corporations. This Article should also provide for adequate, thorough, impartial and independent, investigations and sanctions following standards suggested in the full version of this statement in our website and to be handed to the Chair.

Articles 10.9, 10.10, and 10.12 should be retained in their current form.

Article 10.11 should be deleted.

International Organization of Employers: the Zero Draft Treaty grossly oversimplifies the nature of global business and sets an unreasonable bar for creating liability on the basis of activities that is beyond a company’s control. It also ignores many key elements of the UNGPs on remediation, notably in its articulation of the three ways in which a company can be involved in a harm. Introducing a reverse onus clause to require the accused party to prove its innocence violates due process principles and fundamental notions of fairness. Added to this, the Zero Draft Treaty offers no guidance on the situations where words “where needed” could apply.

The very flexible and imprecise definition of civil liability is particularly problematic. It is incompatible with the established doctrine of separate legal personality, it would create irreconcilable conflicts between domestic corporate laws, and it provides a far broader scope for liability than exists in most current national laws. The Zero Draft Treaty’s provisions blur the boundaries of legal personality; they cause huge legal uncertainty; and they would establish liability on very broad grounds (such as direct or indirect ownership of shares). The Zero Draft Treaty foresees civil liability without causality and it assigns legal liability to situations where a harm is directly linked to a company through its business relationship without any recognition of or safe harbour for companies that take meaningful steps to try and halt the abuse.

Regarding the specific provisions on criminal liability: this section unfairly targets persons carrying out “business activities of a transnational character” and not domestic businesses. It also gives no consideration for the inevitably inconsistent approaches that different national courts would take to determine criminal liability under this instrument. It is not clear what the term “intermediaries” means or how such a broad set of “international human rights instruments” would apply in relation to criminal liability. The obligation for States to incorporate or implement within their domestic law “appropriate provisions for universal jurisdiction over human rights violations that amount to crimes” raises many legal and political complications. The principle of universal jurisdiction relies on national authorities to enforce international prohibitions, there are big questions around the impartiality of the prosecuting country towards the person facing criminal liability. There is no guarantee that trials would be conducted with full respect for due process and not be politically-motivated. Many States’ national legal systems lack the necessary legal definitions and/or means to investigate and prosecute on the basis of universal jurisdiction.

Le Pont: the victims of Chiquita Brands in Colombia (4.335 persons murdered, 1.306 persons disappeared, 1.675 persons displaced) are a sufficient reason to endorse the Treaty and request all States to take part to the debate in a positive and constructive manner. The need for states to create specialized and independent judicial entities within each country should be included.

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.

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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