(Pix © Larry Catá Backer 2019)
The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally
Binding Instrument to Regulate, in International Human Rights Law, The
Activities Corporations and Other Business Enterprises,"
released on 16 July 2019 by the open-ended intergovernmental working
group (OEIGWG) Chairmanship. The CPE Introduction Statement can be
accessed here: The
New Draft of the "Legally Binding Instrument to Regulate, in
International Human Rights Law, The Activities of Corporations and Other
Business Enterprises" And a Call to Submit Comments Before October 2019.
This post continues a multi-part examination of one of the central elements of the Draft Legally Binding Instrument (DLBI)--Article 4 (Rights of Victims). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This is the first part of an examination of Article 4 was prepared by Flora Sapio.
Article 4: A Granular Reflection
Flora Sapio
Centuries ago, the philosopher Isaac Luria
observed how the separation of the essential unity of the world could produce a
game of appearances and illusion. In our modern world, attempts to regulate the
activity of a single, complex system – the multinational corporation – by
fragmenting that system into discrete components and actors might produce
confusion and uncertainty. Articles 1 to 3 of the Revised Draft of the LBI
perform part of this fragmentation by setting the interpretive boundaries of
the Treaty. But it is in Section II of the Treaty that the actual separation of
the First Pillar of the UNGPs from the rest of that document occurs.
That separation starts with Article 4 – Rights
of Victims. This article is divided in two parts:
(1)
paragraphs 1 to 8 provide a catalogue
of the rights of “victims”
(2) paragraphs 9 to 16 contain a list of remedial
obligations of states. Those obligations, however, are catalogued as part of
the “rights of victims”.
Article 4 builds on Article 8 of the Zero
Draft. Earlier commentaries to Article 8 observed how the article did not
consider enterprise-based and multi-stakeholder grievance mechanisms. The
entire burden for remedying the harm caused by enterprises was instead shifted
to the State. In fact, article 8 focused for the post part on the remedial
obligations of the state. That trend has persisted in Article 4 of the Revised
Draft. This article however contains a longer catalog of human rights.
Paragraph 1
The goal of article 4 is avoiding that those
harmed by corporations are further harmed by the State when they seek justice.
Therefore, one would expect Article 4 to contain only a list of those rights
the State needs in order to fulfill its remedial obligations. The article
instead opens with a declaration of principle, that perhaps could have found a
better place in the Preamble:
[Paragraph 1] Victims of human rights
violations 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.
This is a proposition anyone would agree with.
But, paragraph 1 does not specify who shall treat victims of human rights with
respect, etc. This might be a duty of the State, given 8 out of 16 paragraphs
in this article list existing obligations of the State. But, it might be a duty
of business enterprises. The goal of Article 4 is avoiding revictimization. But
revictimization can occur at the hands of business enterprises as well. Another
possibility is that victims be further victimized by individual persons who are
not connected to the State, or to enteprises. For instance, victim that tried
to obtain justice by describing their plight on social media may be easily made
a target of cyber harassment. Finally, victims may be denied respect for their
dignity by non-governmental organizations, as proved by a
scandal reported by CNN.
Retaliation by business enterprise,
cyber-harassment by private citizens, and abuse by NGO staff may have an impact
on the persons’ willingness and/or ability to seek a remedy. But, if these
forms of violence do not occur during the remedial process, or if they do not
involve State actors, it seems, then they are perhaps not relevant to Article
4.
Paragraph 2
In any case, Paragraph 2 states that:
[Paragraph 2]
Victims shall be guaranteed the right to life, personal integrity,
freedom of opinion and expression, peaceful assembly and association, and free movement
This paragraph attributes different substantive
rights to victims. In the absence of these rights, a person is unable to seek
remedy. By the logic of paragraph 2 if a victim has not yet been killed or
maimed by agents of a business enterprise; if it is not held captive; if it is
allowed to exit the sweatshop then she enjoys some of the rights that enable
access to justice.
But, a person who has already been harmed by a
corporation should also:
(1) be able to publicly speak against her employer,
without fear of losing her job or life;
(2) be able to organize strikes, demonstrations,
sit-ins; to occupy factories, shops, government buildings, railroads, highways,
etc.
(3) be able to organize groups and/or associations
In the “world” of the LBI, all these rights are
essential to enjoy access to remedy.
Unfortunately the ability to access to legal
advice and to seek remedy is often curtailed by the lack of the economic means.
Also, the violation of rights by enterprises usually starts with a violation of
the economic rights of persons. Those who seek work at textile sweatshops
perhaps do so because they cannot access better employment opportunities. Those
who depend for their livelihood on their salary and have no other sources of
income may enjoy the right to freedom of speak, association, etc. in the
abstract. In the real world, acting upon those rights easily leads to losing
one’s means of support. And yet access to justice costs money. Economic rights
are not among the rights listed under Article 4.
Paragraph 12.c
grants to victims only those economic rights that are strictly necessary
to
“avoid unnecessary costs or delays for bringing
a claim and during the disposition of cases and the execution of orders or
decrees granting awards”
Providing judicial and non-judicial remedies
costs money to the state. Therefore, it is in the State’s own interest to avoid
“unnecessary costs”. Delays reduce the quality of domestic judicial systems,
with all the consequences that this implies. Paragraph 12.c might be more
concerned about maintaining the efficiency and the quality of domestic judicial
systems, and non-judicial remedies, than the rights of “victims”.
Paragraph 13 instead grants to victims only the
measure of rights that is needed to commence proceedings:
Inability to cover administrative and other
costs shall not be a barrier to commencing proceedings in accordance with this
(Legally Binding Instrument). State Parties shall assist victims in overcoming
such barriers, including through waiving costs where needed. State Parties
shall not require victims to provide a warranty as a condition for commencing
proceedings.
Paragraph 13 begins by stating the intention
that persons who are unable to pay the administrative costs of judicial and
non-judicial state-based remedies, and are unable to pay “other costs” shall be
entitled to commence proceedings. This article does not specify what the “other
costs” are. Yet, in order to commence and continue proceedings, a victim who
may be without means of livelihood would have to support herself first. A
person who is facing eviction, for instance, perhaps has more stringent
concerns than starting proceedings against the enterprises that fired her.
Presumably, the “other costs” in Paragraph 13 refer to lawyers’ fees,
transportation fees, and so no. But, this is not specified in the article.
It can be imagined, based on Article 13
Paragraph 7, that the eligible costs will be covered by the International Fund
for Victims. The fund should solve the problems of obtaining legal aid, and
financial aid for all the costs involved in bringing legal action against a multinational
corporation.
The Fund, however, will be established X years
after the entry into force of the Legally Binding Instruments. The Funds will
also be regulated by provisions defined by the Conference of State Parties.
Despite the good intentions stated by Paragraph
13, and by Article 13 Paragraph 7 of the Revised Draft, it seems that those who
have suffered an economic harm at the hands of multinationals, and do not have the economic means needed to:
participate to strikes, protests, demonstrations, organize unions and
associations, disseminate their ideas etc. will enjoy a portion of their
economic rights only if and when the Conference of State Parties will be up and
running.
Paragraph 3
Paragraph 3 instead focuses on a different sub-set
of rights:
Victims, their representatives, families and
witnesses shall be protected by the State Party from any unlawful interference
against their privacy and from intimidation, and retaliation, before, during
and after any proceedings have been instituted.
These rights are not only attributed to
victims, but also to their representatives, to their families, and to
witnesses. Based on the definitions contained in Section I of the Revised
Draft, “representatives” may refer to:
(1) legal counsel chosen by the victim
(2) legal counsel provided by the State, or by a
non-governmental organization
(3) legal counsel provided (or paid) by a business
enterprise as part of the enterprises’ corporate social responsibility programs
(4) a person who speaks and acts on behalf of a
“victims”, regardless of whether the victim agrees to be represented by such an
agent, or the “victim” is aware that someone else is speaking and acting on her
behalf
“Witnesses” may in principle refer to those who
have seen an abuse as the abuse was taking place, and to those who have a
third-hand knowledge of the abuse. The notion of witnesses therefore may also
include the management, the employees of a multinational corporations. But also
sub-contractors, or persons with a direct or indirect stake in invoking privacy
rights for second motives.
Regardless of the different roles these parties
would play in enabling the “victim” to obtain justice, they all enjoy equal
rights. The right to privacy could allow to:
(1) speak and act on behalf of a “victim”
anonymously, online, offline, and through all media of communication
(2) disclose videos of the “victim” being beaten or
otherwise abused, without the knowledge of the victim
(3) refuse to disclose information to the media, or
to other parties, on grounds that the victim does not consent to disclosure, or
that the information is private information of those who “represent” the victim
or have witnessed an abuse
Needless to day, legislation about privacy is
not homogeneous across legal systems. Notions of privacy shaped by culture,
religion etc. widely different across countries. In the absence of a definition
of what “private information” is and given the gaps between legal definitions
and cultural perceptions of “privacy”, this paragraph may produce unforeseeable
results.
Paragraph 5
Sometimes the procedural aspects of access to
remedy can lead to restricting the scope of rights. Or even to prioritizing
some categories of rights over others. This is the case of economic rights,
that have been discussed above. Sometimes, the procedural aspects of access to
justice and remedy can become laden with values. This is the case, for
instance, of the adjectives used in Paragraph 5, to qualify how access to
justice and how remedies ought to be:
Victims shall have the right to fair,
effective, prompt and non-discriminatory access to justice and adequate,
effective and prompt remedies in accordance with this instrument and
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.
Jurisprudence exists about the meaning of the
words “fair”, “effective”, “prompt”, “adequate”, and “non-discriminatory”. Here
the Legally Binding Instrument introduces a link between itself and
“international law. That link has been established with regard to the meaning
of the adjective listed in the first sentence of Paragraph 5. But not elsewhere
in Article 4.
Paragraph 5b, for instance, does not contain a
connection between itself and the “polluter pays” principle. The making of that
connection would have been useful to specify who should cover the expenses for
environmental remediation and ecological restoration.
Also “environmental remediation” and
“ecological restoration” may be entirely different measures, in practice.
“Ecological restoration” refers to bringing back a natural environment to its
original condition. But, there is a tipping point past which a natural
environment can no longer be brought back to how it once was. The Revised Draft
foresees this possibility, that is indicated by the words “where applicable”.
The applicability of restoration measures versus remediation will be decided
based on national policy, and law. Environmental remediation may include
various measures and possibilities. The only possibilities that come to
attention of Revised Draft, however, are those of paying for relocating
victims, and providing them with a different set of community facilities.
Relocation, whether agreed to by victims or not, may also be understood as a
synonym for “environmental remediation”.
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