Tuesday, December 04, 2018

7-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 11 Mutual Legal Assistance)

(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 7 focuses on Article 11 of the Zero Draft (Mutual Legal Assistance). 

Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 11 (Mutual Legal Assistance)
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 11 (Mutual Legal Assistance)

1. States Parties shall cooperate in good faith to enable the implementation of commitments under this Convention and the fulfillment of the purposes of this Convention.

2. States Parties shall afford one another the widest measure of mutual legal assistance in initiating and carrying out investigations, prosecutions and judicial proceedings in relation to the cases covered by this Convention, including access to information and supply of all evidence at their disposal and necessary for the proceedings in order to allow effective, prompt, thorough and impartial investigations covered under this Convention. The requested Party shall inform the requesting Party, as soon as possible, of any additional information or documents needed to support the request for assistance and, where requested, of the status and outcome of the request for assistance. The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request.

3. Mutual legal assistance under this Convention is understood to include, but is not limited to:

a. Taking evidence or statements from persons;
b. Effecting service of judicial documents;
c. Executing searches and seizures;
d. Examining objects and sites;
e. Providing information, evidentiary items and expert evaluations;
f. Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;
g. Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;
h. Facilitating the voluntary appearance of persons in the requesting State Party;
i. Facilitating the freezing and recovery of assets;
j. Assistance to, and protection of, victims, their families, representatives and witnesses, consistent with international human rights legal standards and subject to international legal requirements including those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment;
k. Assistance in regard to application and interpretation of human rights law;
l. Any other type of assistance that is not contrary to the domestic law of the requested State Party.

4. Without prejudice to domestic law, the competent authorities of a State Party may, without prior request, transmit information relating to criminal matters covered under this Convention to a competent authority in another State Party where they believe that such information could assist the authority in undertaking or successfully concluding inquiries and criminal proceedings or could result in a request formulated by the latter State Party pursuant to this Convention. The transmission of information shall be without prejudice to inquiries and criminal proceedings in the State of the competent authorities providing the information.

5. States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are subject of investigations, prosecutions or judicial proceedings under this Convention, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place, is fully respected.

6. States Parties shall carry out their obligations under the previous Article in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in a way not contrary to domestic law.

7. In accordance with domestic systems, each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution.

8. State Parties shall provide judicial assistance and other forms of cooperation in the pursuit of access to remedy for victims of human rights violations covered under this Convention.

9. Any judgement of a court having jurisdiction in accordance with this Convention which is enforceable in the State of origin of the judgement and is no longer subject to ordinary forms of review shall be recognized and enforced in any Party as soon as the formalities required in that Party have been completed, whereby formalities should not be more onerous and fees and charges should not be higher than those required for the enforcement of domestic judgments and shall not permit the re-opening of the merits of the case.

10. Recognition and enforcement may be refused, at the request of the defendant, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that (a) the defendant was not given reasonable notice and a fair opportunity to present his or her case; (b) where the judgement is irreconcilable with an earlier judgement validly pronounced in another Party with regard to the same cause of action and the same parties; or (c) where the judgement is contrary to the public policy of the Party in which its recognition is sought.

11. Mutual legal assistance under this article may be refused by a State Party if the violation to which the request relates is not covered by this Convention or if it would be contrary to the legal system of the requested State Party.

12. A Party shall not decline to render mutual legal assistance for criminal matters within the scope of this Convention on the ground of bank secrecy.

Article 11 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on 17 October 2018, from 10  AM to 13 PM, together with articles 10 (Legal Liability) and 12 (International Cooperation).

Written comments specific to Article 11 were submitted by:

  • 1 expert
  • 8 states (China, Costa Rica, Egypt, India, Mexico, Namibia, Peru, Russian Federation)
  • 2 NGOs

Comments by Experts

Surya Deva, UN Working Group on Business and Human Rights: mutual legal assistance among states is critical to provide access to effective remedy, especially in transnational cases. The June 2017 report of the Working Group found makes a series of recommendations on how to improve the effectiveness of cross-border cooperation between States with respect to law enforcement on the issue of business and human rights.
The text of Article 11 should be based on existing frameworks and good practices that have proved to be workable. For example, if multiple courts having jurisdiction over certain business-related human rights abuses give conflicting judgments, it is unclear how Article 11(9) would deal with recognition and enforcement of such judgments.

Written comments by Maddalena Neglia, FIDH, are not available on the OHCHR website.

Comments by States

China: we note this article adopts a general approach based on existing international treaties and national practices. We will make recommendations when we discuss specific wording in the future. At present one problem is mutual legal assistance in criminal cases, at least when the request involves mandatory measures. The precondition is dual criminality, that is the relevant act must constitute a crime both in the requesting party and the requested party. We suggest considering adding this provision.

Costa Rica: the right to prompt justice and to compensation is a basic principle of the doctrine of human rights. The guarantee of this right is essential in situations that require the search of resources in foreign courts. National courts face the challenges of having to make judgments according to the legal principles of foreign jurisdictions, differences in ruling between countries, the gathering of evidence and witnesses abroad, and legal uncertainty for companies and victims. In this regard, Costa Rica respectfully asks what technical instances are foreseen in this Instrument to address these challenges? In Costa Rica, administrative bodies in charge of protecting and supervising human rights in labor law do not have the legal power to share data, since data is confidential and known only to the parties. The exchange of such information is governed by the principles of legality contained in the Political Constitution and in the General Law of Public Administration.

Egypt: Article 11.11 requires states to include provisions on universal jurisdiction in their legislation. This will have the effect of admending the domestic legislation of states if there is a controversy over the application of the terms at the international level.

Article 11.12 may contravene national laws on bank secrecy.

India: we believe both Articles 10 and 11 need more clarity as certain elements have the potential to infringe upon the sovereignty of states. We believe terms like ‘universal jurisdiction’ need more clarity. We are also the view that additional grounds for refusal of legal assistance which are already provided in the United Nations Conventions against Corruption and Transnational Organized Crimes should also be part of this article as they factor in the sovereign rights of states.

Mexico: our delegation is worried about Article 11.3(k), because it leaves to the discretion of states the interpretation of the content and scope of human rights, which would be contrary to international law and would result in the relativization of the norms of human rights and legal insecurity. Article 11.3(k) could be reformulated by eliminating the reference to the interpretation of international law of human rights, and including a reference to domestic legislation: “assistance in regard to the application of domestic law.”

With reference to Article 11.6 we think it is important to include the concept of international law, and draft the article as “State Parties shall afford one another assistance in a way not contrary to domestic [and international] law.”
Namibia: articles 11 & 12 are clear and is clearly based on other international instruments, which provides for MLA and International Cooperation, and which have been implemented with great successes.

Peru: we understand that providing reparation to victims for abuses that take place in more than one jurisdiction requires a complex legal scaffolding that requires mutual legal assistance. However, the provision of the current article detail a series of cooperation responsibilities for states, that would entail enormous efforts for their application. Once again, the burden would be excessive for developing countries.

Russian Federation: with regard to article 11, in our opinion, the obligation of states provided in its paragraph 2 to provide each other with legal assistance, including access to information and evidence, does not correlate with the obligation to ensure the procedural rights of those in respect of whom such actions are taken. As a result, the struggle for the rights of some may end up violating the rights of others.

Comments by NGOs

International Association of Democratic Lawyers: mutual legal assistance should not be totally dependent on future agreement between states. More restrictive criteria for the possibility of alleging forum non conveniens should be present.

Thank you Mr. Chair,
I speak on behalf of the Brazilian AIDS Interdisciplinary Association. We coordinate a group of 17 NGOs in Brazil working to remove patent barriers to the access to health. We are also part of the Global Campaign to Dismantle Corporate Power, which comprises more than 600 organizations, movements and networks, at national, regional and global levels.
Currently in the world, billions of people don’t have access to life saving treatment, because of high medicines prices. Pharmaceutical companies charge those prices because they have patent monopolies over those drugs. The result is that State cannot implement public health policies, consumers cannot purchase the medicines in private pharmacies. The pharmaceutical companies – US and EU-based – and their CEOs have left people to die in name of profits and in name of greed. Therefore, it is fundamental that the binding instrument regulates the obligations of TNCs in respect to human rights, as clearly state in the resolution 26/9.
In this sense, the obligations of states and TNCs must be addressed in separate topics. We suggest that the following phrases are included: (a) TNCs are liable civilly, administratively and criminally for all obligations listed in this Convention that are; (b) States Parties must establish administrative, civil and criminal liability for TNCs and their managers. It must not matter if States and TNCs operate as perpetrators or accomplices of violations. We believe the Convention must make clearer the relation between the main company and its subsidiaries, licensees, subcontractors and so forth. In addition, States parties must provide for sanctions, including the dissolution of the TNC, and oblige the TNC to pay the fees.
We also suggest to exclude the references to “domestic law”, since some states do not have provisions of such kind and it may put in jeopardy the scope of this Convention.
 Thank Mr. Chairperson

International Association of Democratic Lawyers:

En lo que se refiere al Artículo 11, para mejor provisión de la asistencia legal mutua, ésta no debe estar totalmente condicionada a los acuerdos interestatales futuros, así como deben estar presentes criterios más restrictivos para la posibilidad de alegación del forum non conveniens.


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