4-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 13 Consistency with International Law)

(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 4 focuses on Article 13 of the Zero Draft (Consistency with International Law). 

Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG

Article 13 of the Zero Draft (Consistency with International Law)
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 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 13. Consistency with International Law

1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.

2. Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.

3. Nothing in these articles shall be construed as restricting or derogating from any rights or obligations arising under domestic and international law. The present articles are without prejudice to any obligation incurred by States under relevant treaties or rules of customary international law, including the obligations under any other treaty that governs or will govern, in whole or in part, mutual legal assistance.

4. The provisions of this Convention shall be applied in conformity with agreements or arrangements on the mutual recognition and enforcement of judgements in force between Parties.

5. This Convention shall not affect the rights and obligations of the Parties under the rules of general international law with respect to the international responsibility of States.

6. States Parties agree that any future trade and investment agreements they negotiate, whether amongst themselves or with third parties, shall not contain any provisions that conflict with the implementation of this Convention and shall ensure upholding human rights in the context of business activities by parties benefiting from such agreements.

7. States Parties agree that all existing and future trade and investment agreements shall be interpreted in a way that is least restrictive on their ability to respect and ensure their obligations under this Convention, notwithstanding other conflicting rules of conflict resolution arising from customary international law or from existing trade and investment agreements.

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

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 13 were submitted by 4 experts. Written comments specific to Article 13 were submitted by:

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

•  6 NGOs.

Comments by Experts

Lilián Galán, Member of the Parliament of Uruguay: Article 13 is problematic in two respects:

• the linking of the domestic law of each country with international human rights law. Article 13.1 refers the principles of sovereign equality and territorial integrity. Only states can interpret what conforms to the Treaty and what does not. Article 13.3 refers to international law, and Treaties are to be interpreted in good faith, without enacting domestic legislation with the goal not to comply with Treaty obligations. This is an eclectiv position, and emphasizing the position of Article 13.1 or Article 13.3 is a political option.
• the linking of this Treaty, a human rights treaties, with trade and investment treaties. The Treaty does not establish the prevalence of human rights over trade and investment agreements. Article 13.7 allows States to interpret trade and investment agreements in a way “least restrictive” of their ability to respect the Treaty. This is an implicit reference to the fact that trade and investment agreements may impact over the human rights enshrined in the Treaty.

The relation between the Treaty and trade and investment agreements has caused enourmous political reticence. Ecuador and its allies have kept the inflexible position to introduce an express mention of the primacy of human rights over trade and investment agreements.

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: the formulation of Article 13.7 is far too narrow in order to explicitly recognize the primacy of human rights obligations over trade and investment agreements. What we are looking for in the binding treaty is realignment of disproportionate protection afforded to companies through legally enforceable rules and the soft law approaches when it to business and human rights.

Article 13.6 indicates that trade and investment agreements should not contain any provisions that conflict with the implementation of the binding treaty. This provision is too broad in order to be meaningful.

We propose to introduce a new sub-article in order to introduce the obligation to integrate a human rights clause in existing and future trade and investment agreements. This should include an obligation to renegotiate agreements, which are in contradiction with the treaty. This proposal is based on General Comment No.24 of the Committee on Social, Economic and Cultural Rights.

Article 13.1 and 13.2 could undermine the Treaty. The provisions relating national sovereignty and territorial integrity should not be used as an excuse to decline jurisdiction on the ground of forum non-conveniens, which we have on and again highlighted as a serious barrier to access to justice. If this Article is interpreted broadly, then the measures under Article 9 will be hindered.

Comments by States

Written comments on Article 13  were submitted by 10  states: Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation, South Africa

Argentina: Article 13.6 and 13.7 can restrict a state’s decision of trade policy, if such decision is to undergo a test of compatibility with the provisions of the Treaty.

China: as a general rule, the Treaty is neither higher than nor it affects other applicable rules of international law, including mutual legal assistance.

Paragraphs 6 and 7 of Article 13 should be carefully reviewed in accordance with the principle of equal emphasis on human rights and development.

Chile: we believe that Article 13 should only refer to Article 31.3.c of the Vienna Convention on the Law of Treaties.

Egypt: sub paras 6 and 7 from article 13 deals with a vital issue which is the relation between the legally binding instrument and the future trade and investment agreements, both articles need elaboration and to be drafted in a way that takes into consideration various interests and concerns, taking into consideration going efforts to revise trade and investment agreements by many countries including my country Egypt.

India: On Article 13, we once again believe that this article requires significant revision. Clarity is required on the term ‘rights and obligations’, as whose rights and obligations are being referred to in point 3 of the article. It may be noted this article has the potential to conflict with the trade and investment obligations of states as it is infeasible to re-negotiate existing bilateral investment agreements. Once again, we believe the text should bring in balance rather than conflict with the domestic laws.

Mexico: in international law no hierarchy exists among different norms, except for norms of jus cogens, which admit of no derogation. It cannot be assumed that the Treaty prevails over other norms of international law, except for the cases when the criteria of special law or later law so permit.

The last part of Article 13.7 “notwithstanding other conflicting rules of conflict resolution arising from customary international law or from existing trade and investment agreements.” should be eliminated. The reference to customary international law is particularly problematic, because an obligation deriving from a bilateral or multilateral treaty cannot derogate from general norms. This provision may have the effect to violate existing customary international standards.

The delegation of Mexico asked the following question to the Chair: “Would it be preferable to emphasize that the obligation to respect human rights still exists during the negotiation and conclusion of trade or investment treaties, as a way to avoid conflicts of norms between the different types of treaties?”

Namibia: we have to pay extra attention to the provisions of an international instrument before we become a State party thereto. We welcome the way in which Article 13 is crafted, although it can be streamlined to draw a clearer connection with Trade and Investment Treaties with the aim to highlight the primacy of human rights obligations, as indicated by some of the panellists. Sovereignty is a principle, which cannot be compromised, but which should also not be used a veil to refuse cooperation.

Peru: this article should be carefully revised, to ensure an equilibrium between state obligations related to trade and investment, and human rights.

We echo the comments of Mexico and other countries: there exist no hierarchy of norms in international law, except for norms of jus cogens, which admit of no derogation.

Russian Federation: Article 13.1 does not  list all principles of international law, as the principle of peaceful settlement of international disputes, equal rights, and the self-determination of people. It is necessary to list all principles defined in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, or avoid privileging some principles over others.

Yesterday, many speakers noted that the task of the Convention was to consolidate the extraterritorial nature of jurisdiction over human rights violations. If so, then this approach does not fit in with the principles of sovereign equality and non-interference in internal affairs, which are confirmed in paragraphs 1 and 2 of Article 13.

Paragraph 3 of article 13 is not very compatible with paragraph 7 of the same article. In the first case, the obligations of states under existing international treaties are confirmed, and paragraph 7, on the contrary, states that such existing trade and investment agreements should be implemented with an eye to the Convention.

Paragraph 6 of Article 13 provides that all future agreements in the field of trade and investment should include human rights provisions. Given the ambiguous formulation of the Draft Treaty, any future such agreement can, if desired, be deemed to conflict with the Draft Treaty. This provision sets the priority of one branch of international law over another. I wonder what the legal rationale is. This approach is based on the authors of the project. This paragraph does not at all take into account the nature of the content of trade and investment agreements, as well as the mechanisms for resolving disputes over them. The inclusion of human rights clauses in trade and investment treaties would mean that the competence of arbitral tribunals should extend over human rights. This is not the task of professionals in investment affairs. 

The entire system of WTO agreements falls under the trade agreements referred to in paragraph 7 of Article 13. Itwould be useful to get an assessment of the implications of the Draft Trety for WTO law.

The Draft Treaty is based on good intentions and a good theoretical knowledge of human rights, but it is still divorced from the reality and context in which these obligations are to be fulfilled.

South Africa: While respecting the principles of sovereign equality and territorial integrity, the duty to cooperate as a fundamental tenet of international law must apply and must be incorporated in the text. 

In Article 13, 7, clear language underpinning investment agreements which calls for equitable relations and respect for human rights should be emphasized. This article must not preclude any measure to address disadvantageous and constraining bilateral trade investments. It is important for Agenda 2030.

Comments by NGOs

FIAN International: we have major concerns how the Zero Draft deals with trade and investment agreements.The discrepancy between the binding agreements and effective arbitration mechanisms in the area of trade and investment on one side and human rights law in the area of business and human rights on the other side is well known. This leads to situations where trade law trumps over human rights law when there exist contradictions.

The draft at least recognizes this potential conflict. The formulation of article 13 attempts to build a bridge between those defending existing trade and investment agreements and those calling for the primacy of human rights. What we perceive as a compromise text results in fact in a weak protection of human rights and does not really contribute to overcoming the problem. We consider that the existing reference to international treaties in art. 13.3 should be eliminated and that the primacy of human rights should be affirmed, based on articles 103, 1 and 55 of the UN Charter.

Although article 13.6 aims at preventing the negative effect of arbitration mechanisms, the compromise text used is too ambiguous in order to be effective. We therefore propose to add the following text:

“When the use of arbitration mechanisms has the potential to impair or nullify States’ capacity to meet their human rights obligations derived from international human rights law, the use of such mechanisms shall be excluded and the case shall be addressed to the formal justice systems of the involved States, following the rules of international law.”

Article 13.6 as it stands will only have a real effect only on future trade and investment agreements. Therefore, we consider a para. should be added stating that, within a given period, existing trade and investment agreements shall be examined by means of Human Rights Impact Assessments whether they contradict the Convention, and if so, shall be adapted so as to comply with the Convention.

FIDH: the zero draft should be amended in order to contain a specific article regarding State parties obligations when negotiating and implementing trade and investment agreements. Such provision should:

• to conduct independent human rights impact assessments and consult potentially affected peoples and human rights treaty bodies when negotiating trade and investment agreements
• Provide for an independent complaint mechanism with the competence to rule on any negative impact trade and investment may have on human rights, including when these impacts result from their dispute settlement mechanisms
• Require the Parties to ensure that trade and investment agreements oblige States, companies and investors to respect international human rights obligations and not only domestic laws
• Oblige the parties to ensure trade and investment agreements allow them to maintain adequate policy space to meet their human rights obligations
• Oblige the Parties to develop clean hands provision requesting investors to respect international human rights standards during all the duration of their investment and obliging them to remedy any negative impact, before to have access to any form of investor-State-Dispute-Settlement
• Oblige the Parties to protect and provide financial support to CSOs seeking to address the negative impacts trade and investment agreements may have on human rights, including from any SLAPP actions;

Friends of the Earth International: Articles 13.6 and 13.7 should be replaced by a state obligation to conduct an impact assessment of human rights prior to concluding any trade or investment agreement involving an enterprise of another state party. An obligation should be included to review existing trade and investment treaties, and renegotiate them or unilaterally denounce them in case of potential or actual inconsistencies.

The first sentence of Article 13.3 should be deleted, because it implies that state parties may ignore any obligation created by this Treaty, if it is believed such obligation conflicts with national law. This article should also include an obligation for TNCs and other business enterprises to respect judicial decisions and domestic legislation, and request from suing another state party before international arbitral tribunals for any decision based on public interest, that affects the human rights of citizens, or the State’s ability to comply with its human rights obligations.

Article 7 should be better articulated with Article 5, and include a clause making explicit that in case of disputes that may affect human rights, the applicable law must in the first place be the international law of human rights.

We agree that prevention of human rights abuses should be the heart of the treaty. However, none of the rights elaborated in the UN Declaration on the Rights of Indigenous Peoples are mentioned in the zero draft. Since the first session of the UN Forum on Business and Human Rights, there has been consensus that Indigenous peoples worldwide suffer the greatest human rights abuses by transnational corporations and business enterprises. We recommend that this Declaration be added to the List of Documents consulted for the preparation of this treaty.

International Indian Treaty Council:  in Article 13.1 there is little recognition of Indigenous peoples whose territories have been divided by arbitrary state colonial borders. Article 36 of the UNDRIP addresses rights of Indigenous peoples separated by borders.

International Organization of Employers: presented the following comments:

• Some provisions under this Article – that correctly assert the sovereignty and territorial integrity State Parties – are incoherent with other provisions in the draft Treaty concerning extraterritorial jurisdiction.

• The provisions on trade and investment raise problems about the potential for a hierarchy of international law (beyond jus cogens). For the record, the UNGPs do not assert the primacy of international human rights law.

MISEREOR, Asia Pacific Forum on Women, Law and Development, BUND, CCFD, CIDSE, CIEL, FIAN International and SOMO:

• Article 13.6 declares that future trade agreement “shall not contain provisions that conflict with the implementation of the convention and shall ensure upholding human rights in the context of the activities by parties benefiting from such agreements”. However, for greater legal clarity, the vague term of “upholding” should be replaced with “respect, protect and fulfill” and concrete measures such as human rights impact assessments should be added.

•  According to Article 13.7, States shall interpret trade and investment agreements “in a way least restrictive on their ability to respect and ensure their obligations under the Convention”. This is certainly well intended. De facto however, the wording would legitimize derogations from human rights obligations and leave it to ill-prepared arbitrators of investment tribunals to interpret which restrictions are acceptable and which are not.

• Article 13.3 is highly problematic as it says that the Convention cannot restrict other domestic and international obligations. The unintended result would be that trade and investment agreements could restrict human rights while the human rights could not restrict trade and investment agreements. This would contradict General Comment N° 24 of the UN Committee on Economic, Social and Cultural Rights, Principle 9 of the UNGP and the EU Lisbon Treaty that obliges to respect and promote human rights in its trade and investment policy within and outside the EU.

We would like to recommend the following modifications in the next Draft:

·      delete Article 13.3 in order not to neutralize the impact of the Treaty on other areas of international and domestic law;

·      to re-insert the principle of the primacy of human rights over trade and investment agreements in articles 2 and 13, to add a specific supremacy clause and to specify that this primacy must be secured in rulings of any international dispute settlement mechanism;

·      modify Article 13.7 in the sense that “existing and future trade and investment agreements shall be reviewed, interpreted and implemented in a way that they do not restrict the ability of States to respect and implement their obligations under this Convention and other applicable human rights treaties.

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