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Comments to Article 6 of the Zero Draft of the Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprises

Article 6. Statute of limitations

1. Statutes of limitations shall not apply to violations of international human rights law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation, particularly in cases where the violations occurred abroad.

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

Article 6 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 7 (Applicable Law) 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 6 were submitted by 4 experts. Written comments specific to Article 6 were submitted by:

• 10 states (Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, Russian Federation, South Africa)

• 2 NGOs

Comments by Experts

Lilián Galán, Member of the Parliament of Uruguay: the wording of article 6 includes non-binding language as the reference that states “should”, which gives this provision the character of a recommendation. The scope of the statute of limitation in civil and administrative cases is not clear. This article uses indeterminate legal concepts, and this reduces the capacity to impose effective obligations on states in relation to the prescription of human rights violations.

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 (representing 207 million workers in 163 countries): with respect to the articles we are discussing this morning, I would like to express that we consider article 6 on the statute of limitation and 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 were submitted by Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, Russian Federation, and South Africa.

Argentina: domestic statutes on limitations can change depending on the legal system of each state, therefore they are not uniform. Article 6 states that the period of prescription for civil claims should not be restrictive. Proposals that contravene provisions of domestic legal systems cannot be ruled out.

Chile: genocide, crimes against humanity and war crimes are not subject to the statute of limitation. This is a binding norm for all states, but a consensus on statutes of limitations for other types of violations does not exist. Therefore it is not appropriate for Article 6 to make allusions to the statutes of limitation for crimes under international law (crímenes de derecho internacional). If this article remained in its current form it would generate controversies among states. Terms as “unduly restrictive”, “adequate period”, and “particularly in cases where the violations occurred abroad” are in need of an explanation relevant to their inclusion in or elimination from the text.

China: the provision about “crimes under international law” is not relevant to the statues of limitations. First, the concept of “crimes under international law” is not clear, and existing international instruments do not provide a commonly accepted definition. Interpretation of this concept can lead to inconsistency and uncertainty, and does not meet the principle of legality. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity was ratified only by 55 state parties. The introduction in this Treaty of a statute of limitation without a clear scope and definition will constitute an obstacle to the participation of states. In applying the statute of limitation for other acts, national law should be universally applicable, without distinctions based on the cause of the claim or the identity of the claimant.

Egypt: my delegation believes that the statute of limitations should be linked to the time when the violation occurred in the framework of the Legally Binding Instrument became known. In addition, the host country should be aware of the occurrence of such violation. Article 6.1 needs to be re-drafted according to article 8.3, which requires all State parties to investigate all human rights violations and take actions against allegedly responsible persons.

India: on Article 6, there is a reference to the phrase ‘crimes under international law’. It is pertinent that the instrument should define what constitutes a crime under international law in the domain of business and human rights.

Mexico: the provision about the statute of limitations is already included in the Rome Statute of the International Criminal Court, therefore its inclusion in this project is not necessary. Concerning the statute of limitation for violations of human rights that do not constitute international crimes, expressions as “should not be unduly restrictive” and “adequate period” are imprecise and subject to the interpretation of each state. In the medium term they will give rise to disputes among contracting parties. We consider it appropriate to replace the term “unduly restrictive” (excesivamente restrictivas) with “unnecessarily restrictive” (innecesariamente restrictivas).

Namibia: in Namibia we have a statute of limitation, which prescribes time limits for civil action, in which category most of the cases would fall and some criminal cases and we will have to consult in great detail on the way forward. However, one thing we are clear on is that victims should be granted a fair and reasonable opportunity to bring a matter before a court that has jurisdiction for adjudication. The way for an indigent victim to the doors of the courts is never an easy one and can take many years because of obvious reasons. Piercing of the corporate veil and other mechanisms used to establish culpability are often time consuming and complicated procedures. Provision should be made for prescription to be interrupted and/or being extended in cases based on violation of human rights by TNC’s especially because of the complexities of their transnational character. We should be weary of making a fallacy of the remedies to be offered in terms of this treaty as the focus is on these remedies.

Peru: this article is of difficult application because it does not practically introduce any limitation to the cases that can be brought before a court.

Russian Federation: this rule is so general that it does not allow to establish what particular actions are in question. However, in such matters there should be absolute clarity, as they relate to the rights not only of the victims, but also of the persons who are brought to justice. Today there is no comprehensive list of international crimes enshrined in a single treaty. International crimes are defined in the statutes of the Nuremberg and Tokyo tribunals. The 1948 Convention also included genocide as an international crime. If Article 6 refers only to these universally recognized international crimes, this should be specified. International crimes as territorism, hostage-taking, money laundering, piracy, drug trafficking and others are covered by existing conventions. The question arises whether such crimes are covered by Article 6.

This procedurally important article contains categories that do not have a clear definition, such as “unduly restrictive” and “adequate period”.

South Africa: it is imperative that the treaty not only apply to all violations of international human rights law but also to international humanitarian law which constitutes crimes under international law. There must be no hierarchy of human rights. South African courts approach a conflict over competing rights by attempting to find a balance between the various rights, instead of promoting one over the other.

South Africa comes from a brutal history of apartheid to which business was a central feature to the oppression of the majority of our people. As a “victims text” therefore, it would thus be a shame to limit this instrument to atrocities which have taken place after this Treaty has come into force.

Comments by NGOs

FIAN International: we support Article 6 as statute limitations can represent a barrier to access justice.

International Organization of Employers: the reference to “crimes under international law” is not clearly defined. When Article 6 says that that domestic statutes of limitations “should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation…” the adverb “unduly” and the adjective “adequate” are very vague. This is a big problem for a proposed legally binding instrument. State parties must be able to limit liability to cases where there is a predictable and causal relationship between the damage and the action or omission.

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