Saturday, December 01, 2018

6-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 8 Rights of Victims)

(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 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
Article 8 (Rights of Victims)
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 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 (Amnesty International) 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 allegedly 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 clarified. 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.


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