2-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 6 Statutes of Limitations))

(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

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. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

These Commentaries form part of a larger Coalition for Peace and Ethics Project on the Effort to Elaborate an International Instrument on Business and Human Rights. Go to CPE Treaty Project Page: HERE.

This Part 2 focuses on Article 6 of the Zero Draft (Statutes of Limitation). 

 Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 6 (Statutes of Limitations)
Flora Sapio 

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 negotations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotations 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 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:

• Rome Statute of the International Criminal Court, art. 29, art. 5
• Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
• Convention on the Prevention and Punishment of the Crime of Genocide
• 1945 Charter of the International Military Tribunal (Nuremberg)
• International Military Tribunal for the Far East (IMTFE) Charter

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.