Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences.
This Part 6 focuses on Article 8 of the Zero Draft (Rights of Victims).
Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
On 14 July 2014, the Human Rights Council created an Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and Other Business Enterprises with respect to human rights (OEIGWG). According to Resolution 26/9, the Working Group has the mandate to: “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”
By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.
In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.
The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.
Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.
The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.
In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.
Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions - Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions - Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9 – summary of discussions - Tuesday 16 October 2018
Article 10 – summary of discussions - Wednesday 17 October 2018
Article 11 – summary of discussions - Wednesday 17 October 2018
Article 12 – summary of discussions - Wednesday 17 October 2018
Article 13 – summary of discussions - Tuesday 16 October 2018
Article 14 – summary of discussions - Thursday 18 October 2018
Article 15 – summary of discussions - Thursday 18 October 2018
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.
- Universal Declaration of Human Rights
- International Covenant on Civil and Political Rights
- United Nations Convention Against Torture
- Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
- General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights
- General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities
- Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
- Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
- European Convention on Human Rights
- 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
- 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;
- 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 clarified. States should not be made responsible for non-compliance by market actors;
- 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.
- 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.