OEIGWG Second and Third Thematic Consultations (3-5 June 2025)--Non-Papers on Draft Arts 6, 8, 9-11 in the Quest for a Final Draft of a Legally Binding International Instrument to Regulate Business and Human Rights

 

Pix credit here

 On the basis of Resolution 26/9 (2014), the Human Rights Council established an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. The mandate for the OEIGWG, buttressed by a cohesive and like minded group of supporters, was to elaborate an "international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises." This, the  OEIGWG has sought to do with great vigor, aided by a closely self-referencing group of supporters who have managed to maintain the sort of committed solidarity that may be necessary in this age to put forward a compulsory version of their vision for the rest of us. To that end, they have singlemindedly labored for more than a decade to produce a draft of something that appeals to them and their supporters. 

Pix credit here

They have come close to something that appears to have the characteristics of a finalized draft. To finish this up and then to project it onto the international community through States. Mass agitation (which is not managed by or through this network) and engagement, as always are either a second order consideration, or managed through agreeable and recognized collective organizations representing well behaved and orthodox affirming views, or otherwise left to States to manage as they like (as long as the leaders and leading groups of those States) behave. 

No criticism here; these States and their networked actor-collectives, are behaving as the system set up for that permits either permits or expects. Nonetheless, it does help to separate the narrative fantasies of the way these coercive measures are first inseminated into text and then birthed into the global order.  That separation between myth and the realities of sausage making for coercive measures (sometimes, as in this case performed through the rituals and expectations of binding international law--binding, that is on States) provides a more realistic basis for assessing responses by everyone else--from wholehearted support to committed resistance.

Now the OEIGWG has been engaged through a set of close to final consultations. These have been quite marvelously reported by Linda Wood, who has been doing a remarkable job of both engaging with and chronicling this quite interesting process (see the most recent here and here).  She now reports on the upcoming consultations in more detail as follows:

As mentioned, the Chair-Rapporteur of the OEIGWG for the Legally Binding Instrument (LBI), has confirmed the following second thematic consultation.Tuesday 3 and Wednesday 4 June, Room V, Palais des Nations: second consultation (arts. 6 and 8) Thursday 5 June, Room V, Palais des Nations: third consultation (arts. 9 and 11, if time permits, art. 10). . . The second thematic consultation will focus on Article 6 (Prevention) and Article 8 (Legal liability), and the third thematic consultation will focus on Article 9 (Jurisdiction), and Article 11 (Applicable law), as well as Article 10 (Statute of limitations) if time permits. I have attached the non-papers for the Articles.

Registration for the Events may be accessed through the Indico platform .

In preparation for the event, its organizers have circulated to "Non-Papers." The first is a "Non-Paper on Articles 6 and 8 of the Updated Draft Legally Binding Instrument," and the second is the "Non-Paper on Articles 9 and 11, as Well as 10 of the Updated Draft Legally Binding Instrument." Each explains itself in its text as they seek, and quite rightly, to manage appropriate thinking about the draft, its intention and their effects.  They are quite useful and well written, providing a clearer picture of how these provisions contribute to the larger `project and making it possible to better discern the broader aims of the larger project--the dismantling of the current normative architecture of economic collectives respecting their organization, goals, objectives, and values, tying these public enterprises much more closely to public purpose. In this sense, at least, the Draft furthers a convergence--not to classical economic globalization of the 1990s, but to one in which economic activity is understood as yet another expression of public power, but now under conditions of delegating operations while retaining overall direction to the State, and from the State to the international community and their techno-bureaucracies. Not an implausible vision, certainly, but one that might have been worth a bit of discussion rather than backdooring these foundational shifts through purportedly technical measures.   If, indeed that is not what is intended, then the power of the technical changes will be substantially dissipated in the face of the protection of the integrity of the private sector, the principles of constructive nationalization, the profit principle, and the values of asset partitioning, legal personality, national security and rights to development. Still, for those committed, it is plausible, audacious, and worth a try.

Of course, once these textual ukases are let loose on the world there is no telling how they will adjust to their ecologies, and whether, for example, different sub-species of application will emerge to survive in logical context. But it is a start and also a foundation from which it is hoped to someone somewhere will draw--assuming, of course, the Draft is finalized, the final draft, altered to suit those inclined to accept it, and subject to whatever reservations (textually or effectively) may be added by States willing to add their name to the measure for whatever reason strikes them as worth the effort. But that is business and usual. 

Pix credit here (the comic from which this is drawn is worth a read in this context)

 

 

 

The key objectives are straightforward and modest in a sense--to put forward a draft, to get the draft accepted by enough states to bring it closer to realization as a Treaty binding at least on those willing to be bound, and in the process to reshape the global discourse on, and the vocabulary for and approaches to the human rights effects on business.  In effect, and in some ways it will in this process displace the UN Guiding Principles in that foundational capacity even as it purports to remain true to its "essence" (that, anyway, will be the form of the catechism and the basis for the legitimacy/acceptability of this legal instrument with mandatory effect (on States and on others to the extent States permit). Yet in other ways it represents a long and quite dramatic re-emergence of the spirit of the old and once abandoned Norms project in new form and leveraging the language of the UNGP to resurrect itself. Bravo--a singular effort that may well prove successful, though for those of us still wed to the UNGP approach and suspicious of  this (for us) old fashioned and two dimensional way of approaching the issues of human rights in economic activity (especially in the face of the development of technologically enhanced public and private measures) the results may be  less inspiring (Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might Bind Them All).

The two reports follow below.

 

SECOND INTERSESSIONAL THEMATIC CONSULTATION TOWARDS THE 11TH SESSION

OF THE OPEN-ENDED INTERGOVERNMENTAL WORKING GROUP ON TRANSNATIONAL

CORPORATIONS AND OTHER BUSINESS ENTERPRISES WITH RESPECT TO HUMAN

RIGHTS (OEIGWG – HRC Res. 26/9)

NON-PAPER ON ARTICLES 6 AND 8 OF THE UPDATED DRAFT LEGALLY BINDING

INSTRUMENT

This non-paper addresses the core elements of articles 6 (prevention) and 8 (legal liability) of the

updated draft legally binding instrument, which is the cluster selected to be discussed during the

second thematic consultation for the implementation of HRC Decision 56/116 in 2025. This non-

paper is based on the concrete comments and proposals presented by States and non-State

stakeholders during the 10th session of the OEIGWG, including the areas of divergence.

This non-paper has been prepared jointly between the Chair-Rapporteur and OEIGWG’s legal

experts, and is thus presented by the Chair under his sole responsibility. This document doesn’t

have any legal status, nor does it replace the “Updated draft legally binding instrument with the

textual proposals submitted by States during the 9th and 10th session” as the basis for the

negotiations. This non-paper is only conceived as “food for thought” to trigger focused discussions

during the intersessional thematic consultations, and allow a better understanding of the

implications of diverse options identified during the 10th and former sessions of the OEIGWG.

ARTICLE 6 – PREVENTION

1. OBJECTIVE OF THE ARTICLE AND OVERVIEW OF CORE ELEMENTS

Objective:

Article 6 deals with the obligation of States under human rights law to protect against human rights

violations and abuses, including those connected to business entities. This obligation has also

been clarified through the work of several human rights treaty bodies such as the Committee on

Economic, Social and Cultural Rights and the Committee on the Rights of the Child.

The article elaborates and clarifies the duty of States to regulate effectively the activities of

business entities in their territory, jurisdiction or under their control, including those activities of a

transnational character, with the purpose of preventing the involvement of companies in human

rights abuses, ensuring the respect of those rights, the practice of due diligence and the

participation of social actors in the development and implementation of policies and other

measures of prevention.

As pointed out by the Chairperson-Rapporteur during the 10th session of the Open-Ended

Intergovernmental Working Group, the draft text of article 6, in the updated version of the draft

treaty, seeks to keep the main provisions and elements of the third revised draft, while presenting

them in a simplified and accessible manner. Additionally, the text reflects more closely the

language and structure of other human rights instruments.

Core elements:

Articles 6.1, 6.2 and 6.3 address the State’s duty to protect, through effective regulation, from

harm that could emerge in the context of business activities, while also addressing the

independence of implementing authorities.

Article 6.4 seeks to clarify that an essential element of the fulfillment of obligations by State Parties

will be the enactment of effective human rights due diligence laws and lists key components of

1human rights due diligence. This clause, jointly with the new definition of “human rights due

diligence” proposed in article 1.8, seeks to elaborate on the content of the provisions of articles

6.1 and 6.2.

Article 6.5 addresses necessary measures required from States to ensure businesses prevent

human rights violations or abuses in situations involving multiple business enterprises, where the

damage results from the activities of a third party that is controlled, managed or supervised by

another business.

Article 6.6 sets forth the obligation to undertake periodic assessments of legislative, regulatory

and other measures contained in article 6.2, to determine their adequacy for the purpose of

prevention, and to revise or reform as may be necessary.

As explained by the Chairperson-Rapporteur, the provisions that were included in articles 6.5

(regarding incentives) and 6.6 (on compliance) of the third revised draft of the legally binding

instrument have been deleted, because they duplicate the content of paragraphs 1 to 4 of article

6 in the draft. Furthermore, article 6.7 of the third revised draft has been moved to article 8 on

liability.

2. OVERVIEW OF MAIN PROPOSALS

Throughout their interventions on article 6, States made references during the 10th session of the

OEIGWG, to elements that could be discussed in light of the discussions on articles 1 (definitions),

3 (scope) and 16 (implementation). This includes references to business activities, business

enterprises or transnational corporations and other business enterprises of a transnational

character, and use of terminology such as ‘abuses and violations’ and ‘affected persons, groups,

communities’, the scope of business entities to be covered under the instrument, and the

terminology pertaining to individuals and groups facing heightened risks of human rights abuses

and violations. A decision in those articles regarding whether and how to incorporate and define

these terms would inform the rest of the draft legally binding instrument.

It is important to read article 6 in light of the definition of human rights due diligence provided

under article 1.8. States may need to clarify the scope of the due diligence obligation in the context

of business relationships. States may also want to consider the interaction between the sub-

sections of article 6, such as 6.2 and 6.4, 6.5 and 6.2a, 6.4b and c. Furthermore, States may want

to consider the overlap with other articles, including in relation to precautionary measures and

human rights defenders. Another cross-cutting issue that appears under article 6 relates to the

coverage of environmental elements.

3. POTENTIAL IMPLICATIONS OF MAIN PROPOSALS:

Regarding article 6.1

On replacing ‘shall regulate effectively’ with ‘should take steps to regulate effectively’:

Existing States’ obligations to respect, protect and fulfil human rights and fundamental freedoms

entails States taking appropriate steps, among which is adopting legislative, administrative, and

other appropriate measures, as indicated in the general comments of multiple treaty bodies (such

as CESCR General comment 24 and CRC General comment 16). Both treaty bodies made clear

that the obligation to protect requires from States adoption of legislative, administrative and other

appropriate measures, thus requires effectively regulating business activities. The UN Guiding

Principles on Business and Human Rights (“GPs”) reinforce this point, notably principles 1 and 3.

The proposed change in language would imply moving from clarifying the obligation of States to

2take action, to only providing suggestive guidance for States. The proposed language is of an

endeavor nature (take steps). Thus, it would fall short of the obligation that already exists under

international human rights law.

On the additional proposal on precautionary measures:

This proposal may overlap with the provision on precautionary measures under article 5.4. Yet,

unlike article 5.4, the reference to precautionary measures here is in the context of the duty of

States to protect and related prevention measures, and is not linked to the existence of legal

proceedings. The proposed language also gives an indicative example of the action to be taken

by States (i.e. halt of business activities). The proposed language focuses on cases of ‘imminent

human rights abuse or violation causing irreparable harm’ (i.e. propose double test of imminence

and irreparability). The tests from this proposal and those under article 5.4 are not the same

(Article 5.4 refers to “urgent situations that present a serious risk of, or an ongoing human rights

abuse“). In article 6.1, States may want to consider the wording of this section only being

applicable to activities that can “cause” an imminent and irreparable human rights abuse, as some

activities may significantly contribute to the abuse and therefore also need to be prevented.

States may further refer to the input of the group of legal experts on precautionary measures,

shared during the 10th session and the first inter-sessional meeting.

Regarding article 6.2 chapeau

On adding language on the obligation of businesses to respect ‘internationally recognized human

rights and prevent human rights abuses’:

The proposed language overlaps with article 6.2(a) (on prevention) and 6.2(b) (on ensuring

respect). It clarifies that measures taken to prevent human rights abuses and violations should

cover business activities and relationships (for discussion of this point, reference can be made to

the commentary under article 6.2 (a)). Regarding the proposed language on ‘legal and policy

measures’, the reference to ‘other measures’ in the chapeau of draft article 6.2 could be read as

covering ‘policy measures’.

On framing of the State obligation as an obligation of result and adding language on the obligation

of enterprises to identify and prevent human rights violations and risks of violations:

As reflected under existing human rights law, and stated under the GPs (see GP 1 and its

commentary), the duty of States to protect is an obligation of conduct rather than result. The

second part of the proposal is in line with the GPs (see GP 15 on business responsibility to respect

human rights) and overlaps with article 6.2 (a) and 6.4. It is framed as a direct obligation of

business in comparison to being articulated as a requirement from business under the measures

States are to undertake as part their duty to protect. It also clarifies that the obligation extends

throughout the business’s operations, including value chain. It is worth noting that article 1.6,

which defines “business relationships” refers to value chains.

On reference to progressive implementation and conditioning the obligation of the State on

existing institutional resources:

Human rights obligations can be categorized as having immediate effect or requiring progressive

realization. For example, in article 2(1) of the ICESCR, the phrase “achieving progressively” has

been associated with the protection of economic, social and cultural rights, and is often contrasted

with the obligation found in article 2 of the ICCPR to “respect and ensure” the protection of civil

and political rights. Consequently, the rights in the ICCPR have been interpreted as being

“immediately realisable”, while those in the ICESCR are considered something that States should

work towards and will be “progressively achieved.” Nevertheless, General Comment No. 3 by the

CESCR further introduces the idea that even the rights in the ICESCR have a “minimum core”.

States thus have an obligation to ensure the satisfaction of, at the very least, minimum essential

levels of each of the rights, for to do otherwise it would largely deprive the Covenant of its raison

3d’être. Consequently, it can be noted that human rights law permits States, in discharging their

obligations, to take into account resource constraints that apply within that particular State.

Other human rights treaty bodies such as the International Convention on the Elimination of All

Forms of Racial Discrimination 1965 (ICERD) and the Convention on the Elimination of All Forms

of Discrimination Against Women 1979 (CEDAW) provide that policies to eliminate discrimination

must be pursued by States “without delay”, thus imposing an obligation of “immediate

effect”. States may want to consider the potential implications of the proposed language if

integrated under the chapeau of 6.2, taking into account the nature of the obligation addressed

here. The article addresses the obligation of taking appropriate measures to regulate business

entities. It differs from the obligations pertaining to the realization of economic, social, and cultural

rights, especially in relation to the links the latter have with developmental levels and budgetary

implications and constraints. Incorporating language on progressive implementation and

conditions related to institutional resources under the chapeau of article 6.2 may result in

ambiguity and confusion, especially where the question pertaining to what a minimum core in this

context is not clarified. Guiding Principle 1 requires States to “tak[e] appropriate steps to prevent,

investigate, punish and redress such abuse through effective policies, legislation, regulations and

adjudication”, focusing on a core set of actions.

On replacing ‘shall’ with ‘should’:

[Same comment applies to similar proposals under article 6.4 chapeau and 6.5]. The proposed

change would imply moving to a mere suggestive guidance for States rather than clarifying an

existing obligation. As noted above, Guiding Principle 1 focuses on the requirement that States

take steps.

Article 6.2 (a)

On clarifying the scope of State’s obligation to regulate business conduct:

The proposed language would clarify the reach of the State legislative, regulatory or other

measures to regulate the conduct of business entities in relation to due diligence

requirements. Read together with article 6.1, it indicates that the State obligation entails regulating

the activities of businesses that operate within their territory, jurisdiction or otherwise under their

control wherever those business activities and relationships take place. This proposal should be

read together with the definition of business activities and business relationships under draft

articles 1.4 and 1.6, and assessed in light of the final agreed definitions.

Article 6.2 (b)

On proposals related to scope of rights covered:

This article refers to the requirements from State Parties in the context of fulfilling their duty to

protect, particularly the adoption of legislative and other measures for those purposes. States

presented three different proposals pertaining to scope of rights covered. Legal obligations of

States under international law are rooted in treaties to which the State is a party to, as well as in

customary international law. As a result, States generally have to adopt measures in their

domestic law that are consistent with their international legal obligations, in order to give effect to

such duties. In some instances, domestic law can also create human rights duties for States that

go beyond international human rights standards, either in their specificity or in their scope. States

could consider the language discussed during the first intersessional consultation that refers to

‘internationally recognized human rights and fundamental freedoms, as reflected in treaties to

which the State is party, customary international law and the domestic law of the State.”

4On replacing ‘ensure’ with ‘enhance’:

‘Ensure’ is the term frequently used in various international human rights treaties, while the term

‘enhance’ is not used as such.

Article 6.2 (c)

On qualifying human rights due diligence by ‘effective’:

The proposed term is in line with language used in relation to human rights due diligence (see for

example the work of the Working group on Business and Human Rights), and would add clarity

regarding the standard that ought to be met.

On adding reference to financial and arms sector:

This issue relates to the scope and definitions of business enterprises to be covered under the

LBI. In relation to ‘financial institutions’, the draft text includes a proposal to explicitly cover

financial institutions under the definition of ‘business relationship’ (See article 1.6). As to the arms

sector, in general the UN Guiding Principles does not include or exclude specific sectors.

recognizing that businesses engaged in any range of activities can cause or be linked to human

rights abuses.

On replacing ‘ensure’ by ‘strengthen’:

“Ensure” is more aligned with the nature of the obligation of States and the mandatory nature of

human rights due diligence that the article is meant to clarify. Combining the two terminologies

(e.g. “ensure and strengthen”) could provide for one way to approach this sub-paragraph.

On adding reference to mandatory standards and other forms of preventing human rights

violations and abuses:

This proposal encompasses two points. One is clarifying that the human rights due diligence

required from business is mandatory. This is a point that is already addressed under the chapeau

of article 6.4 (by reference to ‘legally enforceable requirements’, although that chapeau may

require redrafting for more clarity). The other point made in this proposal is that States are required

to take other preventative measures besides enacting and enforcing human rights due diligence

legislation. Article 6.2 is not restricted to human rights due diligence related measures. For

example, the chapeau of article 6.4 refers to ‘measures to achieve the ends referred to in Article

6.2’ (which would include practice of due diligence and other prevention measures). Yet, the

chapeau of article 6.4 refers to legal enforceability only in reference to human rights due diligence.

The reference to “as well as such supporting or ancillary measures as may be needed..." points

to a permissive approach towards other preventative measures in both articles 6.4 and 6.2. States

may want to revise the drafting of Articles 6.2 and the chapeau of article 6.4 in a way that clarifies

that these provisions are not limited to human rights due diligence related measures but cover as

well other measures taken to fulfill the duty of preventing the involvement of business enterprises

in human rights abuse. (See also commentary to Guiding Principle 2 referring to a range of

measures States can take besides human rights due diligence).

Article 6.2(d)

On adding reference to human rights defenders:

While human rights defenders are addressed under other articles of the LBI (such as article 5.2),

there is particular importance of addressing defenders in relation to measures taken to prevent

harm in the context of business activities. For example, this is addressed in details in the 2021

report and guidance of the Working Group on business and human rights on the need for States

and businesses to address the adverse impact of business activities on human rights defenders.

Reference can also be made to the commentary of GP 18 also emphasizes the importance of

consulting with human rights defenders and others from civil society. While article 6.4(e)

5addresses the protection of human rights defenders, 6.2(d) addresses their participation in the

development and implementation of prevention related measures. The UN declaration on human

rights defenders identifies human rights defenders as individuals or groups who act to promote,

protect or strive for the protection and realization of human rights and fundamental freedoms

through peaceful means. The specification proposed by Brazil might add value. In terms of

placement, it could be suggested to place the proposed wording after the wording 'and groups'.

On replacing ‘promote’ by ‘ensure’:

Article 6.2(d) of the LBI addresses the promotion of active and meaningful participation of

individuals and groups in the development and implementation of laws, policies and other

measures to prevent the involvement of business enterprises in human rights abuses. This is

reflective of the rights under ICCPR Article 25.1 on the right to take part in the conduct of public

affairs. The ICCPR Article 2 provides that “Each State Party to the present Covenant undertakes

to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights

recognized in the present Covenant.” Also, the content of article 6.2(d) can be said to be reflective

of the human rights-based approach to policy and decision-making that prioritizes the protection

and promotion of human rights in all aspects of policy and decision-making. The human rights-

based approach is a conceptual framework that is normatively based on international human

rights standards and is operationally directed to promoting and protecting human rights.

On the proposals to remove references to trade unions, civil society, non-governmental

organizations:

The right to participate in public affairs, is codified in international law in Article 21 of the Universal

Declaration of Human Rights (UDHR), Article 25 of the International Covenant on Civil and

Political Rights (ICCPR), as well as in articles of other international treaties such as the

Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the

International Convention on the Elimination of all forms of Racial Discrimination (ICERD), and the

Convention on the Rights of Persons with Disabilities (CRPD).

CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote),

provides that the right to participate in public affairs cannot be fully enjoyed without respect for

other mutually enforcing rights and freedoms, most specifically freedom of assembly and

association and freedom of expression, freedom of movement, and access to information (See

General Comment No. 25: Article 25, paras 25, 26). The Declaration on Human Rights Defenders

emphasizes the role of non-governmental organizations, etc. in the development and

implementation of regulatory measures.1 Consequently, States may wish to consider whether

removing references to trade unions, civil society and non-governmental organizations from the

draft LBI will diminish the clarity of the text and its consistency with existing human rights law.

On adding reference to ‘local communities’:

Article 6.2.(d) already contains a reference to “community-based organisations”, so States may

wish to consider whether adding a further reference to “local communities” would further clarify

this issue.

Article 6.3

On addition of reference to transparency and vested interests:

Article 6.3 already envisages that authorities must have the “necessary independence…to carry

out their functions effectively and free from any undue influence”. Article 16.6 also provides that

“In implementing this Legally Binding Instrument, State Parties shall protect public policies and

1 https://www.ohchr.org/en/special-procedures/sr-human-rights-defenders/declaration-human-rights-defenders

6decision-making spaces from undue political influence by businesses”. States may wish to

consider whether adding an additional express reference to “transparency and vested interests”

could further clarify this issue. For example, the WTO Framework Convention on Tobacco Control

has specific provisions in this area, that refer explicitly to “commercial and vested interests”, which

could serve as a model (See the preamble and article 5.3 of the WTO Framework Convention on

Tobacco Control as well as the guidelines concerning the WHO FCTC).

Article 6.4 chapeau

General comment:

Article 6.4 addresses State obligations and clarifies the content of due diligence requirements

from business enterprises. The chapeau combines references to legally enforceable

requirements and other supporting and ancillary measures, that could potentially include non-

mandatory measures. This combination of references to mandatory and potentially non-

mandatory measures might undermine the clarity of the sub-paragraphs that follow, particularly

whether those requirements are to be reflected in mandatory legal frameworks, or could be

addressed under other ancillary measures. For more clarity, the chapeau could clearly refer to

legally enforceable requirements. The reference to supporting and ancillary measures could be

moved into a separate provision as could a reference to non-mandatory measures (if retained).

On qualifying the reference to human rights due diligence by account of size, sector, capacity:

This point is in line with the Guiding Principles but does not replicate the language of the GPs. It

overlaps with the same point made under article 3.2 on scope. It also overlaps with the references

to size, nature and context of operations and risk of adverse impacts under draft article 1.8 of the

definition of human rights due diligence. States may want to consider placement of that reference

in an overall paragraph applicable to references to human rights due diligence across the text.

On replacement of paragraph with language on ‘ongoing and frequently updated human rights

due diligence’ with reference to size, risk of severe human rights impacts, nature and context of

operations and business relationships:

The proposition would replace the reference to “legally enforceable requirements” with reference

to requirement from business to undertake human rights due diligence. This would maintain the

mandatory nature of the proposed human rights due diligence obligation. However, the wording

“legally enforceable” currently contained in the draft encompasses a reference to enforceability

through a legal accountability mechanism, which would not be covered under the proposed

language focusing on a general requirement to undertake due diligence. Reference to “ongoing

and frequently updated” could be a clarification of what “effective due diligence” is and is in line

with the terminology of the GPs. States should consider, however, whether the concept of

frequency and updating are sufficient without other criterion as the sole indicators of effectiveness.

The reference to the scope of the human rights due diligence is a cross-cutting issue. States could

consider clarifying this issue under the definition of human rights due diligence. The reference to

“ongoing human rights due diligence” is in line with the GPs (see GP 17 and commentary of GP

29). “Ongoing” could be read as implicitly incorporating continuously “updated”. The proposal

replicates language of GP 17b on size, risk of severe human rights impact, nature and context of

operations (See commentary on similar references above).

Article 6.4(a)

On adding reference to environmental and health impact assessments:

During the 10th session, the experts provided input in which they shared two findings. First, there

is growing evidence of international recognition of the right to a healthy environment as belonging

to the international human rights corpus juris, deriving from different sources of international

obligations. Consistent with developments in multilateral and judicial fora, and the based on the

7crystallization of these interrelated obligations, States may wish to consider them as part of the

material scope of the LBI. For example, recent State practice pertaining to due diligence

requirements cover both human rights as well as environmental due diligence including the

French Law on the Duty of Vigilance, the EU Corporate Sustainability Due Diligence Directive,

and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. As for

health-related impact assessments, the issue of health-related impact can be consolidated as a

subset of human rights impact assessments.

Article 6.4(b)

On adding “age-responsive approach” and disability-sensitive approach in relation to human

rights due diligence:

During the first intersessional meeting, the group of legal experts pointed out that multiple UN

instruments, principles and other authoritative documents including General Comments, as well

as other regional instruments stress age, gender and disability considerations in relation to the

protection and protection of human rights and access to justice, remedy and reparations. The

group also pointed out that article 16.4 refers to specific approaches that consider the specific

impacts of business activities on women, children, persons with disabilities, indigenous peoples,

among others, which would cover references to gender-responsive, disability-inclusive, child-

friendly or gender-, age- and disability-sensitive. Reference could be made to GP 12 and the

commentary on GP 23, which provide that States should advise business entities on appropriate

methods including how to consider issues of gender, vulnerability, and/or marginalization.

Article 6.4(c)

General comment:

Articles 6.4 (b) and (c) might read as overlapping, given the references to women, children, elderly

have been linked to heightened risks of vulnerability and marginalization in other parts of the draft

text. For example, PP14 reads: “women and girls, children, indigenous peoples, persons with

disabilities, people of African descent, older persons, migrants and refugees, other persons in

vulnerable situations”. States might want to consider whether the reference to heightened risks

under the draft text refers to risks in the context of conflict or whether they also refer to other

situations or to certain groups. Under PP14 there is a proposal to add reference to heightened

risks linked to conflict (also as used under the GPs, references to heightened risks are also related

to conflict areas under GP 7). It might be useful to clarify the reference to heightened risk and

differentiate the concept of heightened risk relating to conflict as opposed to specific risks that

relate to vulnerability and marginalization of different persons.

On removal of reference to marginalization:

It was pointed out by experts in the first non-paper that vulnerability and marginalization are not

the same, and it may be preferable to consider language that provides for a broad enough

approach to cover different situations. Reference to “vulnerability and marginalization” is used

together under the Guiding Principles. States have requested the use of the two terms in tandem

in other parts of the text, such as PP14 and Article 2(d)

On replacement of the article with language on meaningful and mandatory consultations, free

prior and informed consent, role of independent public body, conduct in conflict areas:

This proposal interacts and overlaps with other sub-paragraphs which address the key issues

contained in the proposal. For example, meaningful consultations in line with FPIC overlaps with

article 6.4(d) and 6.4(f). Reference to the protection of public bodies from undue influence and

vested interests overlaps with article 6.3 and 16.6, and reference to relevant stakeholders, while

not being clear, is also mentioned under article 6.4(d). Finally, the reference to oppressed

population also lacks clarity/precision based on existing sources of international human rights law.

8Article 6.4(d)

On the addition of two proposals on self-determination and rights of Indigenous Peoples to

environmental governance and a safe and healthy environment:

States may wish to consider whether a reference to the topic of self-determination would be better

placed in a section focused on the scope of rights rather than a section focused on the

procedural elements that would fall under the duty of due diligence. Regarding proposals

concerning environmental governance and the right to a safe and healthy environment, States

can refer to comments made by the group of legal experts under article 6.4(a) and during the 10th

session. With regard to the proposal on the rights of indigenous peoples, references made to

indigenous peoples throughout the body of the LBI (i.e. PP14, 6.2.(d), 6.4.(e)(f), 15.7, 16.4)

already address this topic, and States may wish to consider whether further clarification is needed

in 6.4.(d).

Article 6.4(e)

On the proposal to delete the provision:

While this provision interacts with the other parts of the draft that relate to human rights defenders,

it has its specific added value regarding clarifying what effective human rights due diligence

should account for in relation to human rights defenders. The Working Group on business and

human rights recommended that human rights due diligence laws integrate human rights

defenders and their rights across the various stages of the due diligence practice (See:

A/HRC/47/39/Add.2, 2021).

On replacing ‘protect’ with ‘ensure’:

This provision refers to the requirements from businesses in the context of effective human rights

due diligence. The obligation to protect human rights defenders falls on States. While noting that

the State’s duty to protect and businesses’ obligation regarding human rights defenders are

distinguished, the term ‘ensure’ might not adequately reflect the nature of business entities’ due

diligence obligations. States may want to consider revising the approach to focus on respecting

the rights, including safety, of human rights defenders and other stakeholders referred to in this

provision.

Proposal to replace 6.4

On the proposal replacing current article 6.4 with an article focused on ‘human rights due diligence

measures’ that will include ‘consultations in good faith’, taking into consideration ‘consideration of

power imbalances’, ensuring active free, effective, meaningful, informed participation of

individuals and groups:

Article 6.4 gives important details of what effective human rights due diligence required from

business entails. However, the proposal does not align with the UN Guiding Principles and does

not focus on what types of individuals or groups are meant to benefit from consultations. The

proposal seems vague and focuses on only one element (consultation) of human rights due

diligence.

Proposed article 6.4 (bis)

General comment:

The proposal is focused on occupied and conflicted affected areas and lists measures States

should undertake as urgent and immediate preventive measures. The GPs are built around a

concept of proportionality: the higher the risk, the more complex the processes (See GP 7).

Businesses in particular are required to conduct a ‘heightened’ version of human rights due

diligence in conflict affected areas. The GPs do not elaborate on the precise measures to be taken

9in this context, as those will vary depending on the nature of the conflict, as is the case with human

rights due diligence generally. (Reference can also be made to the related work of the UN Working

Group on business and human rights, A/75/212, 21 July 2020). States may want to consider

whether providing indicative examples of such measures might add value in implementation.

Regarding the proposal on environmental due diligence in conflict areas, States might wish to

take into consideration the growing evidence of the international recognition of the right to a

healthy environment as belonging to the international human rights corpus juris. In this context,

the work of the International Law Commission, which has elaborated the Draft Principles on

Protection of the Environment in Relation to Armed Conflicts (also known as the PERAC

Principles) is particularly relevant. For example, Principle 10 contains provisions relating to “Due

diligence by business enterprises”, while Principle 11 addresses the “Liability of business

enterprises” for harm caused to the environment in an area affected by an armed conflict.

Article 6.5

General comment:

At present, draft article 6.5 provides that States should ensure that business enterprises take

appropriate steps to prevent human rights abuses by third parties where the enterprise controls,

manages or supervises the third party. These steps include, but are not necessarily limited to,

human rights due diligence. If the reference to control, management and supervision is intended

to circumscribe the scope of due diligence in the context of business relationships, then States

may need to consider that such phrasing seems to limit the nature of a business entity’s legal

duty in a manner that falls short of the approach to the human rights due diligence requirements

of the GPs and recent practice pertaining to mandatory human rights due diligence. The GPs

focus on the concept of a business relationship as basis for what gives rise to a company’s duty

to engage in human rights due diligence to identify and prevent harms to which it may cause,

contribute or be directly linked. This concept of due diligence is not limited by having control or

supervision of the entity. Thus as part of their due diligence companies need to identify harms in

supply chains and with contractors to which they do not have control, or supervision.

States may want to clarify whether the reference to “imposition of a legal duty to prevent such

abuse in appropriate cases” is intended to tackle liability that may arise in cases of failure to take

appropriate prevention measures including human rights due diligence. If so, States may want to

address this issue under article 8 that deals directly and more explicitly with liability standards. In

that context, States may wish to consider that the absence of a definition of “control, management

and supervision” may lead to challenges in the implementation, as well as alternative approaches

to this issue. It can be recalled that the 3rd revised draft included a relevant reference in this regard

under draft article 8.6 and related proposals by States.2

On adding reference to transparency of information related to business relationships:

The proposal interacts with proposals on access to information covered under articles 4 and

7. Article 4.2(f) is framed as a clarification of the rights of victims, and requires a “guarantee of

access” to certain information. Article 7 addresses access to information in the context of access

to remedy, thus more specifically in relation to the conduct linked to the harm that victims suffered.

States may want to review and clarify the interaction of the various provisions concerning access

to information (reference can be made to the commentary shared by the legal experts during the

1st intersessional consultation).

2 See article 8.6 in the text available on https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/igwg-

transcorp/session9/igwg-9th-updated-draft-lbi-track-changes.pdf

10On removal of reference to ‘legal duty to prevent abuse in appropriate cases’:

In light of the general comment on article 6.5 provided above, States may want to consider what

is intended from this phrase ‘legal duty to prevent abuse in appropriate cases’. This language

could help clarify that prevention measures required from business enterprises, besides human

rights due diligence, could be mandatory and the failure to undertake such measures could lead

to liability in certain cases. Thus, States may want to consider whether it would be useful to retain

the language pertaining to imposition of a legal duty to prevent harm in such cases.

Article 6.6 bis

On the proposal focused on universal jurisdiction over human rights violations that amount to

international crimes:

This issue interacts with article 9 on jurisdiction. There is another proposal on universal jurisdiction

proposed under article 9.4bis. Reference could be made to commentary provided by the legal

experts group under that article. States may want to address this issue under article 9.

Article 6.6 ter

On the proposal focused on reparations particularly in large-scale industrial disasters,

consultation with and full participation by affected persons, transparency, technical assistance,

third party reporting and analysis:

A similar proposal was submitted under article 7 on access to remedy. Given that this proposal is

specifically dealing with reparations and related mechanisms, States may wish to consider the

elements proposed here under article 7 and the related commentary shared by the group of legal

experts in relation to the proposal under article 7.

Article 6.6 quater

On the proposal focused on implementation of the LBI, transparency, protection against undue

influence of commercial and other vested interests:

This proposal overlaps with elements of articles 6.3, new proposal under article 6.4c and Article

16.6 that provides “In implementing this LBI, State Parties shall protect public policies and

decision-making spaces from undue political influences by businesses”. States may want to

consider addressing issues of implementation and the effect of vested interests under article 16.

11ARTICLE 8 – LEGAL LIABILITY

1. OBJECTIVE OF THE ARTICLE AND OVERVIEW OF CORE ELEMENTS

Objective:

In his introduction of article 8 during the 10th session of the Open-Ended Intergovernmental

Working Group on transnational corporations and other business enterprises with respect to

human rights, the Chairperson-Rapporteur specified the objective sought by each paragraph of

article 8 of the Updated Draft.

Article 8.1 seeks to define more clearly the State obligation to adopt the necessary measures to

establish an adequate system of legal liability, which should cover both legal and natural persons

undertaking business activities in its territory, jurisdiction or under its control, for human rights

abuses deriving from their business activities or relationships, including those of a transnational

character.

Article 8.2 specifies the types of liability that States should consider establishing, in accordance

with their legal principles, stipulating the importance of aligning criminal, civil or administrate

liability with the needs of victims and the gravity of the human rights abuse.

Article 8.3 addresses the determination of legal liability based on the “secondary” participation of

a person in a human rights abuse (commonly denominated “secondary liability” or “vicarious

liability”). This clause is generally related to the content of Article 8.10 in the Third Revised Draft,

although in the current drafting proposal the scope is widened to cover civil liability, with

terminology being adjusted more closely to that of other treaties addressing secondary liability.

Article 8.4 refers to the duty of State Parties to adopt the necessary measures to avoid sequences

that condition a type of liability to the prior determination of another type of liability, which could

undermine the accountability and reparation objectives sought by the instrument. By virtue of this

paragraph, State Parties should eliminate this type of requirements to the extent allowed by their

legal and administrative systems, with the purpose of improving the options available to victims

regarding the best mechanisms that could address their needs.

Article 8.5 refers to the reversal of the burden of proof, demanding that States take into account

the implications of inequity in access to information and resources, especially between victims

and business enterprises. Given the importance of these type of measures as a potential way to

reduce barriers to access to remedy, a more detailed reference is also made in article 7.3(d) of

the Revised Draft.

Finally, article 8.6 clarifies that legal liability should lead to appropriate sanctions. This provision

covers similar ground as those found in articles 6.7 and 8.3 of the Third Revised Draft.

Core elements:

- Adoption of measures to establish a system of legal liability for human rights abuses.

- Determination of the nature of liability (civil, administrative, criminal) in line with the State’s legal

principles.

- Determination of the liability of legal and natural persons for conspiring to commit, or for aiding,

abetting, facilitating and counseling the commission of human rights abuse.

- Adoption of measures to prevent the determination of the liability of legal persons from being

contingent on the establishment of liability of natural persons; of criminal (or administrative)

liability from being contingent upon the establishment of the civil liability of that person, and vice

12versa; and that the liability of a legal or natural person is not contingent upon the establishment

of the liability of the main perpetrator of an unlawful act.

- Allocation of evidential burdens of proof, including the reversal of the burden of proof or the

dynamic burden of proof.

- Determination of penalties or other sanctions as a result of liability.

2. OVERVIEW OF MAIN PROPOSALS

Throughout their interventions on article 8, States made references to elements that should

preferably be discussed in articles 1 (definitions), 3 (scope) or 16 (implementation), including to

the addition of the phrase “affected persons and communities” to victims; to “human rights abuses

and/or violations”; or to “transnational corporations and other business enterprises”, among

others. A decision in those articles regarding these terms would apply generally to the rest of the

draft legally binding instrument.

The Group of Legal Experts notes that many of these terms are being discussed by States and

other stakeholders and would like to refer to the position expressed during the tenth session

regarding the question of “abuses and violations”. The language used in this document will be

that contained in the Updated Draft LBI.

Furthermore, several interventions during the 10th session introduced new elements to the draft

legally binding instrument that may have the following different potential implications.

3. POTENTIAL IMPLICATIONS OF MAIN PROPOSALS

Regarding article 8.1:

On the inclusion of a reference to joint and several liability for human rights abuses deriving from

actions, omissions or business relationships:

Clause 8.1 sets forth a general duty to establish an adequate system of legal liability within the

jurisdiction of the State parties, that is developed or refined in other clauses of article 8. States

may wish to consider the reference to “joint and several liability” in light of the content in article

8.3.(b), with the aim of clarifying the interaction between both provisions whenever several entities

are involved. States may also wish to consider if the reference to human rights abuses that may

arise from “actions or omissions in the context of their own said business activities or from their

relationships” is necessary, in light of the current version of article 8.1.

On the inclusion of a reference to limit the applicability of the provision to transnational

corporations and other business enterprises incorporated in the State Party’s jurisdiction

(applicable to other references in the article, including in the proposals under 8.3, 8.4 and 8.6):

Beyond the question on the scope, which States should consider in article 3, the addition of a

reference stipulating that the system of legal liability should be limited to business enterprises

incorporated within the jurisdiction of the State could be contrary to certain principles recognized

in international human rights law, including the general duty of the State to ensure human rights

to all individuals “within its territory and subject to its jurisdiction”. Thus, regardless of whether a

legal entity is a foreign subsidiary operating in the territory of the State or a parent company, as

long as it is within the State’s territory or under its jurisdiction, the State will be under a duty to

take measures to prevent, investigate, punish or redress the harm caused. Furthermore,

considering that in many jurisdictions, for any foreign legal person to operate in the territory of a

State different than where its seat or place of administration is located, it must constitute a different

legal entity in accordance with the host State’s domestic law, the provision may be complex to

13apply. States may wish to consider if adding such references would be consistent with existing

duties under international human rights law, and also that the issue of applicability of the liability

regime, as implemented in domestic laws, is addressed in article 11. References in other

international instruments: International Covenant on Civil and Political Rights (1966), art. 2.1;

Human Rights Committee, General Comment No. 31 (2004), par. 10.

On the inclusion of a reference to consistency with domestic legal and administrative systems,

and removal of control as a basis for jurisdiction:

Regarding the introduction of a reference to consistency with domestic legal and administrative

systems, the proposal would appear to circumscribe any measures on legal liability for human

rights abuses resulting from or connected to transnational business activities to those elements

that already exist in the State’s laws and administrative institutions. While further clarity on the

purpose of the proposal would be convenient, States may wish to consider to which extent adding

such a reference be aligned with existing international obligations, or if it would limit the

instrument’s capacity to establish a common duty for State Parties regarding legal liability.

On the proposal to remove the reference to control as a basis for jurisdiction, it must be noted

that such references are not unknown under international law, including in different advisory

opinions of the International Court of Justice regarding the presence of State authorities in the

territory of another State. Furthermore, considering the subject matter of the instrument, States

may wish to consider that under certain circumstances, State-owned or State-controlled

enterprises may fall within this jurisdictional basis for the purpose of legal liability. Thus, in line

with the discussion under article 1 on the definition of “business activities”, States may wish to

consider the need to maintain such a reference. States should also be mindful of the fact that the

notion of “control” raises additional complexities in the case of State-owned or State-controlled

enterprises in as far as State responsibility and State immunity are concerned. References in

other international instruments (on “control”): UN Guiding Principles on Business and Human

Rights (2011), principle 4; OECD Guidelines on Corporate Governance of State-Owned

Enterprises (2024), p. 9; International Law Commission, Draft principles on protection of the

environment in relation to armed conflict (2022), principle 11; International Law Commission,

Responsibility of States for Internationally Wrongful Acts (2001), article 8.

Regarding article 8.2 (chapeau):

On the introduction of a reference to modify the type of obligation regarding the modality of liability

(“shall” instead of “may”):

Several international instruments dealing with the liability of legal persons under domestic law

condition the forms of liability to the legal principles of the State, in recognition of differences in

approaches to the question of liability of legal persons. Considering the aforementioned, States

may wish to consider modifying the provision, to facilitate the determination of the forms of liability

in accordance with their legal principles. References in other international instruments: Optional

Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and

child pornography (2000), article 3.4; Draft Articles on Prevention and Punishment of Crimes

Against Humanity (2019), article 6.8; United Nations Convention Against Corruption (2004), article

26.1-2.

On the introduction of a reference to expand the modalities of liability:

Consistent with the previous commentary, the expansion of the modalities of liability may restrict

the participation of certain States due to the approach of their legal principles to the question of

liability of legal persons. Thus, States may wish to consider if it would be preferable to maintain

the reference as proposed in the original text.

14On substituting the provision to focus on the establishment of liability of a legal person without

prejudice to the liability of natural persons, or to avoid making civil liability contingent on the

determination of criminal liability:

The proposal to substitute the provision would be difficult to sustain, as it would remove elements

that would be essential as part of the definition of legal liability for human rights abuses resulting

from or in connection to transnational business activities. Dividing the original provision in two

different clauses would be appropriate, with one focusing on the types of liability established by

the instrument, and another one potentially addressing the considerations to be included in the

drafting of such provisions under domestic law. Regarding the language in this proposal, States

may wish to consider paragraphs (a) and (b) of article 8.4, which already cover these references.

References in other international instruments: United Nations Convention Against Corruption

(2004), article 26.3.

On the suggestion to delete the second part of the provision:

States may wish to consider if the second part of the provision, especially paragraph (a), is

necessary in light of articles 16.1 and 16.4.

On the substitution of legal “principles” for legal “systems” (applicable to the reference under 8.3):

Several international instruments dealing with the liability of legal persons under domestic law

make reference to the “legal principles” of the State, rather than the “legal systems”. Indeed, a

reference to a “legal system” may be understood as referring to the rules, procedures and

institutions in a legal community, while “legal principles” refer to general legal norms underlying a

legal community. Considering that this provision refers to the modes of liability recognized by

State parties, States may wish to consider maintaining the reference to legal principles, which

would also be consistent with existing treaties and other instruments of international law

addressing this question. References in other international instruments: Optional Protocol to the

Convention on the Rights of the Child on the sale of children, child prostitution and child

pornography (2000), article 3.4; Draft Articles on Prevention and Punishment of Crimes Against

Humanity (2019), article 6.8; United Nations Convention Against Corruption (2004), article 26.1-

2; UN Convention against Transnational Organized Crime (2000), article 10.

Regarding article 8.3 (chapeau):

General comment:

The contents of draft article 8.3 are central to the determination of legal liability in situations where

two or more entities, whether in transnational corporate groups or in value chains or a mix of

them, contribute to human rights abuses. In this regard, it would be important to consider the need

to use language that provides a certain degree of flexibility to facilitate its translation to domestic

law in accordance with each State Party’s legal principles, while also ensuring that the language

can respond to the focus of civil, administrative or criminal law. It will be convenient to clarify the

specificities of each form of legal liability, so that the language retained can cover different

instances of direct or indirect involvement in human rights abuses.

On substituting the provision to focus on the adoption of measures to ensure that the domestic

jurisdiction provides for criminal, civil and/or administrative sanctions for causing or contributing

to human rights abuses and violations, providing a list of examples:

This proposal first introduces a reference to effective, proportionate and dissuasive criminal, civil

and/or administrative sanctions. As mentioned previously, certain international instruments

introduce such references, in an effort to ensure that sanctions can work as a deterrent against

certain types of conduct. On this question, States may wish to consider that article 8.6 of the LBI

already contains such references. A second element relates to the types of conduct that would

merit such sanction, where “causing or contributing to human rights abuses and violations” is not

15differentiated. If kept, States may wish to consider introducing language that differentiates

between the type of sanctions for causing human rights abuses, from those that would result from

contributing to them. Finally, States may wish to consider if it is convenient to add a list of

examples, as proposed, or if an open-ended provision may provide more flexibility, in case the

proposal is retained.

On the deletion of subparagraphs (a) and (b) or expanding the types of conduct that should lead

to the liability of legal and natural persons (“inter alia”):

Taking into consideration that provision 8.1 already provides for a general clause on the

establishment of legal liability of legal or natural persons conducting business activities for human

rights abuses that may arise from their business activities or relationships, as well as references

in State proposals during the 10th session to activities that have caused or contributed to human

rights abuses, and the differences in legal principles of States, as explained above (including in

relation to corporate criminal liability), States may wish to consider if maintaining the original

provision would be desirable. Furthermore, the terms “conspiracy”, “aiding” and “abetting” have a

connotation based on criminal law, and States may wish to use language that could be useful in

different fields of law. Separately, the proposal introduced would include language that would be

repetitive of articles 8.1 and the first part of 8.2; States may wish to consider if, in light of the

above, it would be necessary to maintain the proposal. The addition of the words “inter alia” would

introduce a degree of flexibility that could more easily accommodate the legal principles of

different States, although as noted above, the terms “conspiracy”, “aiding” and “abetting” have a

connotation based on criminal law.

Regarding article 8.3.(a):

On substituting the act of “conspiracy to commit” for “acts or omissions that contribute” to human

rights abuses:

The wording used in this proposal would potentially provide more flexibility than the term used in

the original text, which could be useful for different legal fields, beyond criminal law. However,

States may wish to consider if defining the term “contribution” would be necessary, for the purpose

of legal clarity. References in other international instruments: UN Guiding Principles on Business

and Human Rights, commentary to principle 19; OECD Due Diligence Guidance for Responsible

Business Conduct (2018), p. 70.

On the addition of a reference to “commission” in addition to “conspiracy”:

Considering that the focus of article 8.3 revolves around involvement in human rights abuses as

a result of business relationships, States may wish to consider if the language in article 8.1,

referring to human rights abuse arising from business activities undertaken by a company covered

by the LBI, does not already cover the content of this proposal.

Regarding article 8.3.(b):

On the addition of a reference to “commission” in addition to listed conducts:

The proposal would appear to regroup, in one single provision, the different types of conduct that

could lead to the determination of legal liability. States may wish to consider if it would be

appropriate to include, in one single provision, situations that may be caused or that may be

contributed by legal persons, as well as if other language proposals would provide flexibility that

would accommodate the legal principles of different States.

16Regarding article 8.4 (chapeau):

On substituting the provision to focus on the duty of State Parties to provide for gender and age

responsive reparations, and to ensure that when found liable, a legal or natural person provides

reparation to the victim or compensate the State if it has already provided reparation to the victim:

The first paragraph of the proposal introduces references to adequate, prompt and effective

gender- and age- responsive reparations. States may wish to consider for that purpose the

content of article 16.4, which already makes reference to such approaches in the implementation

of the LBI. The second paragraph of the proposal introduces a reference to “repetition” when the

State has already provided reparation. Certain international instruments contain references to that

end, particularly in situation when harms arises from the actions or omissions of legal persons.

States may wish to consider the convenience of adding such a reference in the LBI. References

in other international instruments: General Assembly, Basic Principles and Guidelines on the

Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights

Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (2005), par. 15.

Regarding article 8.4.(c):

On the request to reword “unlawful act”:

Considering the content and focus of the LBI, States may wish to consider substituting the phrase

“for that unlawful act” for “of the human rights abuse”. Furthermore, considering the complexity of

defining who the main perpetrator may be in the context of transnational business activities, where

different entities may be related directly or indirectly to a situation that harms human rights or the

environment, States may wish to consider a formulation that clarifies the focus of this provision.

On the suggestion to delete the provision:

The contents of article 8.4 in general, and particularly of 8.4.(c), would appear to be more

adequate for development in the domestic legislation of States and in accordance with their legal

principles, due to its particular focus on criminal liability of legal persons. Thus, States may wish

to consider the convenience of maintaining such a reference in the LBI.

Regarding article 8.5:

On the suggestion to delete the provision:

Considering that article 7.4.(d) already provides for the adoption of measures to facilitate the

production of evidence, States may wish to consider if it is necessary to keep this provision.

On substituting the provision to focus on the requirement for legal or natural persons conducting

transnational business activities in the territory or jurisdiction of the State Party to maintain

financial security to cover potential claims of compensation and judicial costs:

The proposal addresses a question that is particularly relevant in the context of transnational

litigation, and that is essential for the purpose of ensuring adequate reparation, including

compensation, as a result of harm to victims of corporate human rights abuses. Financial

restructuring leading to dissipation of assets of potentially liable corporate entities can result in a

denial of access to justice, which can be difficult and costly to reverse. In this regard, States may

wish to consider this proposal in light of articles 4, 5, 7, 8 and 9.

Regarding article 8.6:

On the addition of a reference to ensure the right to due process:

Under international and regional human rights law, there is a presumption of the existence of the

rule of law and the respect of judicial guarantees and due process in domestic jurisdictions. When

such guarantees and due process are not respected, business enterprises have domestic and

17international recourses at their disposal to combat omissions by States. Considering this, States

may wish to consider if it is necessary to explicitly make such a reference in this article.

On the removal of qualifiers on the types of penalties or sanctions applicable:

Regarding the removal of qualifiers, it is important to consider that the reference to effective,

proportionate, and dissuasive sanctions aims to ensure that reparation is effectively provided, that

it is responsive to the particular characteristics of the relevant case, and that it incentivizes non-

repetition. While there would be a need to translate these qualifiers to the domestic law of the

State Party for different kinds of harm, States may wish to consider if removing such references

would change the focus of the provision. References in other international instruments: United

Nations Convention Against Corruption (2004), article 26.4; OECD Anti-Bribery Convention

(1997), article 3.2; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (1984), article 4.2; International Convention for the Protection of All Persons from

Enforced Disappearance (2006), article 7.1; General Assembly, Basic Principles and Guidelines

on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human

Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (2005), par.

15; Draft Articles on Prevention and Punishment of Crimes Against Humanity (2019), article 6.7.

On the modification of the content of the obligation, from one of result to one of conduct:

Under international human rights law, State duties may be considered obligations of means

whenever they relate to conduct undertaken by non-State actors. However, when the fulfilment of

duties depends entirely on the conduct of the State, they are typically characterized as obligations

of result. Considering the subject matter of this paragraph relates to elements that fall directly

under the discretion of the State, via legislation or regulation, States may wish to consider the

pertinence of framing this section as an obligation of means rather than as an obligation of result.

On the addition of a provision (8.6 bis) stipulating that all companies in a corporate group or value

chain involved in human rights abuse and violation shall be jointly and severally liable:

This proposal would not be consistent with the corporate veil principle, or the developing tort law

principles in which liability depends on the causative nexus between human rights abuse and

wrongful performance or non-performance of functions and responsibilities assigned to particular

corporate entities. Thus, States may wish to consider the convenience of introducing such a

reference.

On the addition of a provision (8.6 ter) stipulating that State Parties ensure that their domestic law

provides for the criminal liability for acts that directly or indirectly contribute, cause or are linked

to human rights abuses or violations:

Considering the difference in the approach to the question of corporate criminal liability, in light of

divergences in the legal principles of States, States may wish to consider the viability of including

such a proposal, especially taking into account the complexity of establishing criminal liability for

situations where there is an indirect contribution or linkage to human rights abuses or violations.

On the addition of a provision (8.6 quater) stipulating that the rule on the exhaustion of local

remedies is not applied where the circumstances make it unreasonable, or where effective

remedy is unavailable at the domestic level:

The principle of subsidiarity, which is central to the petition systems under regional and

international human rights law, requires the exhaustion of domestic remedies prior to acceding to

international mechanisms, with some exceptions, including where remedy is not available under

the domestic jurisdiction of the State. As article 8 of the LBI is focused on legal liability under

domestic law, States may wish to consider to which extent this proposal would be necessary in

this article.

18On the addition of a provision (8.6 quinquies) stipulating that human rights due diligence shall not

automatically absolve a legal or natural person from liability for causing or contributing to human

rights abuses or violations, or for failing to prevent such abuses and violations by a natural or

legal person:

This proposal reintroduces elements contained in article 8.7 of the Third Revised Draft of the LBI

of 2021, which is aligned with the commentary to Principle 17 of the UNGPs. While the proposal

doesn’t suggest removing human rights due diligence as a legal defense per se, States may wish

to consider wording that prevents inconsistencies with developing tort law/extracontractual liability

principles of liability and the objectives of this instrument, while also acknowledging that numerous

jurisdictions rely on strict liability for environmental damage or for damage resulting from

inherently dangerous activities.

_______

 

THIRD INTERSESSIONAL THEMATIC CONSULTATION TOWARDS THE 11TH SESSION OF

THE OPEN-ENDED INTERGOVERNMENTAL WORKING GROUP ON TRANSNATIONAL

CORPORATIONS AND OTHER BUSINESS ENTERPRISES WITH RESPECT TO HUMAN

RIGHTS (OEIGWG – HRC Res. 26/9)

NON-PAPER ON ARTICLES 9 AND 11, AS WELL AS 10 OF THE UPDATED DRAFT

LEGALLY BINDING INSTRUMENT

This non-paper addresses the core elements of Article 9 (Jurisdiction), and Article 11 (Applicable

law), as well as Article 10 (Statute of limitations), of the updated draft legally binding instrument,

which is the cluster selected to be discussed during the third thematic consultation for the

implementation of HRC Decision 56/116 in 2025. This non-paper is based on the concrete

comments and proposals presented by States and non-State stakeholders during the 10th session

of the OEIGWG, including the areas of divergence.

This non-paper has been prepared jointly between the Chair-Rapporteur and OEIGWG’s legal

experts, and is thus presented by the Chair under his sole responsibility. This document doesn’t

have any legal status, nor does it replace the “Updated draft legally binding instrument with the

textual proposals submitted by States during the 9th and 10th session” as the basis for the

negotiations. This non-paper is only conceived as “food for thought” to trigger focused discussions

during the intersessional thematic consultations, and allow a better understanding of the

implications of diverse options identified during the 10th and former sessions of the OEIGWG.

ARTICLE 9 – JURISDICTION

1. OBJECTIVE OF THE ARTICLE AND OVERVIEW OF CORE ELEMENTS

Objective:

In the introduction of article 9 during the 10th session of the OEIGWG, the Chairperson-Rapporteur

specified the objective sought by each paragraph of article 9 of the Updated Draft. The current

version of the article seeks to clarify how jurisdiction should be established and exercised, both in

criminal and civil law; how to address the possibility of conflicting or overlapping jurisdictions; and

aligning the draft to the language and structure used in other articles of the updated legally binding

instrument.

Article 9.1 sets forth the basis upon which States shall adopt necessary measures to establish their

jurisdiction in cases of human rights abuses, including when such abuses took place or harm was

sustained wholly or partly within their territory or jurisdiction, or when such abuses were carried out

by legal persons domiciled in their territory or jurisdiction, or by natural persons with their nationality

or habitual residence in their territory or jurisdiction. Furthermore, it is foreseen that such jurisdiction

may also be established by a State when the victim that seeks remedy through civil law proceedings

is a national or has his or her habitual residence in that State.

This clause is designed to adapt to both criminal and civil law. Paragraphs (a), (b) and (c) are

designed to apply in both contexts, while paragraph (d) is limited to the civil law context, recognizing

the limited use of the doctrine of “passive personality” as a basis for establishing jurisdiction

regarding public law crimes. Nevertheless, nothing in this proposal prevents a State from

establishing its jurisdiction on this ground even in the criminal law context.

Article 9.2 keeps most of the connecting factors based on the connection between a legal person

and a territory or jurisdiction, although the language has been simplified. Furthermore, article 9.3

sets forth the obligation of States to adopt necessary measures to ensure that decision-making on

the exercise of jurisdiction in concrete cases, as a response to a request to stay the proceedings

due to forum non conveniens, or to coordinate actions in cases of conflicting or overlapping judicial

procedures, respects the rights of victims in line with article 4 of the legally binding instrument. This

1is particularly important in light of article 4.2.(c), which sets forth that the right of victims to fair,

adequate, effective, prompt, non-discriminatory and appropriate access to justice and to reparation

and effective remedy.

An important means to guarantee the effectiveness of this right is to ensure that, when more than

one jurisdiction is competent regarding a claim for a remedy, victims have the right to choose the

forum that better satisfies their needs. In this sense, the OEIGWG may consider amending article

4 to make an express reference to the right of victims to have their choice of forum respected.

Finally, article 9.4 establishes the duty to consult between a State that has been notified of or has

knowledge of judicial proceedings in another State regarding the same human rights abuse, in

order to coordinate the proceedings between said States.

Core elements:

- Providing the bases on which State Parties can establish (adjudicative) jurisdiction in respect of

business-related human rights abuses

- Defining the domicile of legal persons

- Providing that decisions on the exercise of jurisdiction shall respect the rights of victims

- Providing for consultation between States in cases of parallel proceedings

2. OVERVIEW OF MAIN PROPOSALS

Throughout their interventions on article 9, States made references to elements that should

preferably be discussed in articles 1 (definitions), 3 (scope) or 16 (implementation), including to the

addition of the phrase “affected persons and communities” to victims; to “human rights abuses

and/or violations”; or to replacing “State agencies” with “State authorities”, among others. A

decision in those articles regarding these terms would apply generally to the rest of the draft legally

binding instrument. Furthermore, several interventions introduced new elements to the draft legally

binding instrument that would have different implications. Among them, the following were raised

in the discussion during the 10th session.

It is important to note that the UNGPs do not expressly address jurisdiction. Jurisdiction is primarily

relevant to Pillars 1 and 3 of the UNGPs. States have obligations to respect, protect and fulfil the

human rights of individuals within their territory and/or jurisdiction. This requires taking appropriate

steps to prevent, investigate, punish and redress such abuse. These obligations can be fulfilled

through various means, including effective adjudication. States should take appropriate steps to

ensure the effectiveness of domestic judicial mechanisms when addressing business-related

human rights abuses, including considering ways to reduce legal, practical and other relevant

barriers that could lead to a denial of access to remedy. Jurisdictional rules are related to these

principles by providing the bases on which States can assume jurisdiction over a perpetrator and

by regulating the exercise of such jurisdiction.

Article 9 of the draft legally binding instrument is particularly closely related with article 4 on rights

of victims, article 7 on access to remedy, article 12 on mutual legal assistance and article 13 on

international cooperation. In his introduction of article 9 during the 10th session of the OEIGWG,

the Chair-Person Rapporteur highlighted this link with article 4 and one of the proposals regarding

article 7.3 was to stipulate that State policies shall address the need to remove legal obstacles,

including the doctrine of forum non conveniens, to initiate proceedings in the courts of a State Party.

Below, we highlight some links with articles 12 and 13.

Another general point to keep in mind is that the rules of direct jurisdiction are closely related with

the question of recognition and enforcement of foreign judgments. The grater the agreement on

the rules of direct jurisdiction, the greater the likelihood of an agreement on recognition and

enforcement of foreign judgments. This link is particularly visible in the Brussels I bis Regulation,

2where one of the purposes of unifying rules of direct jurisdiction was to facilitate the free movement

of judgments within the EU. Recognition and enforcement of foreign judgments was addressed

under articles 12.10 and 12.11 of the third revised draft of the legally binding instrument of 17

August 2021, but these provisions do not appear in the latest draft.

3. POTENTIAL IMPLICATIONS OF MAIN PROPOSALS

Regarding article 9

General comment:

The current version of article 9 seeks to clarify how (adjudicative) jurisdiction should be established

and exercised, both in criminal and civil law. However, the considerations that are relevant to the

establishment and exercise of criminal jurisdiction are not necessarily the same as those

concerning civil jurisdiction. For instance, the doctrine of “active personality” may be used as a

basis for establishing jurisdiction regarding public law crimes, but it is controversial in the civil law

context. Some countries permit their courts to establish jurisdiction in civil matters based solely on

the defendant’s nationality. A good example is article 15 of the French Civil Code. However, this

jurisdictional rule and the jurisdictional rules of this kind in the laws of other EU Member States

have been “blacklisted” at the EU level with respect to defendants domiciled within the EU because

they are considered exorbitant. In other words, the Brussels I bis Regulation specifically provides

that “in particular” article 15 of the French Civil Code and some other rules of national jurisdiction

of this kind ([2015] OJ C4/2, List 1) “shall not be applicable as against [persons domiciled in a

Member State]” (Brussels I bis Regulation, article 5). Moreover, domestic jurisdictional rules based

on the defendant’s nationality were included in the list of prohibited grounds of jurisdiction in the

interim text of the preliminary draft convention on jurisdiction and foreign judgments in civil and

commercial matters of October 1999, prepared by the Permanent Bureau of the Hague Conference

on Private International Law. While this preliminary draft did not eventually result in a convention

on jurisdiction in civil and commercial matters (although negotiations on a jurisdictional convention

are currently ongoing at the Hague Conference), there was some agreement at the time that

domestic jurisdictional rules based on the defendant’s nationality should be prohibited. References:

Hague Conference, ‘Summary of the Outcome of the Discussion in Commission II of the First Part

of the Diplomatic Conference 6-20 June 2001, Interim Text, Prepared by the Permanent Bureau

and the Co-Reporters’, article 18(2)(c); Regulation (EU) No 1215/2012 of the European Parliament

and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of

judgments in civil and commercial matters (recast), article 5; The information referring to Article 76

of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction

and the recognition and enforcement of judgments in civil and commercial matters, List 1

On replacing “State agencies” with “judicial or non-judicial mechanisms”:

Article 9 concerns (adjudicative) jurisdiction – that is, the exercise of State authority to adjudicate.

This authority is usually, though not necessarily, exercised by courts (e.g. it can be exercised by

administrative tribunals). While the wording “judicial or non-judicial mechanisms” may convey the

idea that jurisdiction can be exercised by State agencies other than courts, it may also give the

impression that article 9 seeks to regulate the acceptance of cases by non-judicial mechanisms

that do not exercise State adjudicative authority. States may want to consider clarifying the

language of this proposal, particularly in light of the definition of “relevant State agencies” that is

present in article 1.10, and which makes reference to State-based non-judicial mechanisms.

Regarding article 9.1 (chapeau)

3On providing that measures shall be “consistent with domestic legal and administrative systems”:

This proposal implicitly refers to a tension between three considerations underlying article 9: 1)

improving on the existing legal framework, 2) achieving uniformity and 3) not imposing on States

solutions that they cannot accept, for example for constitutional reasons, or would find difficult to

accept or implement. Many of the jurisdictional bases in article 9 are an improvement on the existing

legal framework. Article 9 aims to harmonize the laws of jurisdiction of State Parties, but not fully

unify them because nothing in the legally binding instrument shall affect any more favourable

provisions in the domestic legislation of a State Party or in any regional or international treaty or

agreement pursuant to article 14.3. The bases of jurisdiction in article 9.1, on which State Parties

may establish jurisdiction in respect of business-related human rights abuses, are numerous and

broad; some may be broader than what is permitted under some domestic legal systems.

Ultimately, how to reconcile this tension is a political decision for States. States may want to

consider that adding references to consistency or conformity with domestic legal and administrative

systems may have an effect of limiting the consistency with the international standard being

developed. On the other hand, adding references to consistency or conformity with domestic legal

and administrative systems may facilitate the adoption and implementation of the legally binding

instrument in some legal systems. There is also a possible alternative solution: rather than

subjecting the whole of article 9 to the proposed provision, States may want to consider using this

language in the sub-provisions that are more likely to potentially cause challenges to adoption and

implementation. Furthermore, as mentioned in the commentary following the proposals on article

8, States may want to consider replacing the term “legal and administrative systems” with “legal

principles”.

Regarding article 9.1(a)

On the expression “where the human rights abuse took place”:

The wording “where the human rights abuse took place” is ambiguous in situations where there is

participation of two or more actors, where one actor’s acts and/or omissions constitute a human

rights abuse to which the other actor contributes. The State where the human rights abuse took

place is relatively straightforward to determine where a claim is brought against the direct

perpetrator of an abuse (i.e. act/omission of the direct perpetrator). But where a claim is brought

against another member of a transnational enterprise that contributes to the abuse, the current

wording of article 9.1(a) could be argued to be pointing only to the forum of the act/omission of the

direct perpetrator. Another view is that the current wording of article 9.1(a) is broad enough to point

to the forum where either the principal perpetrator or the contributing entity acted/failed to act. This

reading is supported by the broad definition of "human rights abuse" in article 1.3 ("“Human rights

abuse” shall mean any acts or omissions that take place in connection with business activities and

results in an adverse human rights impact."). States may want to consider whether the jurisdictional

reach of States under this provision requires clarification.

Regarding article 9.1(b)

On deleting “relevant” before “harm”:

The deletion of the word “relevant” would not alter the substance of article 9.1(b). What constitutes

“the relevant harm” or “the harm” for the purposes of article 9.1(b) in a specific case will, in any

event, be determined by the State agency applying and/or interpreting the rule of jurisdiction in

question.

Regarding article 9.1(c)

On the expression “the human rights abuse was carried out by”:

The wording “the human rights abuse was carried out by” may be interpreted as requiring a positive

act of commission rather than omission. With regard to multinational enterprises, while there are

obviously examples of commission of harm – e.g. design or hazardous technology deployed in

subsidiary operations – the contribution of parent companies of transnational corporate groups or

4dominant members of transnational supply chains to human rights abuses is generally due to the

omission to ensure the prevention of harm. This is central to articles 6 and 8 of the draft legally

binding instrument, as well as human rights due diligence under the UNPGs. If this lacuna is not

addressed, the legally binding instrument may fail to provide a basis for multinational enterprise

home State jurisdiction in a case in which harm around an overseas operation was allegedly caused

or contributed to by a failure by a parent company, or a business high up in a supply chain, to take

reasonable measures to prevent foreseeable harm. States may want to consider replacing “carried

out by” with “caused or contributed to”. Neither does article 9.1(c) allow for the assumption of

jurisdiction – in the absence of a submission to the home court jurisdiction – over a foreign

corporate entity, as a co-defendant to a claim against home state court defendant. There are

several possible versions of a rule of jurisdiction over co-defendants. In the Brussels I bis

Regulation, for example, article 8(1) provides that a person domiciled in a Member State may also

be sued where he is one of a number of defendants, in the courts for the place where any one of

them is domiciled, provided the claims are so closely connected that it is expedient to hear and

determine them together to avoid the risk of irreconcilable judgments resulting from separate

proceedings. The equivalent provision in English law, the “necessary and proper party” gateway,

is broader. It provides that English courts can permit service of the claim form out of the jurisdiction

where a claim is made against a person (“the defendant”) on whom the claim form has been or will

be served and – (a) there is between the claimant and the defendant a real issue which it is

reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another

person who is a necessary or proper party to that claim. Various bodies have recommended the

adoption of a rule of jurisdiction over co-defendant for business-related human rights abuses within

domestic legal systems, including the International Law Association and the Council of Europe.

Furthermore, the European Parliament’s Committee on Legal Affairs and the European Group of

Private International Law recommended the extension of article 8(1) of the Brussels I bis Regulation

to defendants domiciled in non-EU States. However, the EU legislator has not yet accepted these

proposals. It should also be noted that a rule of jurisdiction over co-defendants may be broader

than what is permitted under some domestic legal systems. A rule of jurisdiction over co-defendants

was included in article 9.4 of the third revised draft of the legally binding instrument of 17 August

2021. References: Regulation (EU) No 1215/2012 of the European Parliament and of the Council

of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and

commercial matters (recast), article 8(1); ILA, ‘Resolution No 2/2012: International Litigation and

the Interests of the Public’, rule 2.2; Council of Europe, Recommendation CM/Rec(2016)3 of the

Committee of Ministers to Member States adopted on 2 March 2016, recommendation 35;

European Parliament Committee on Legal Affairs, ‘Draft Report of 11 September 2020 with

Recommendations to the Commission on Corporate Due Diligence and Corporate Accountability

(2020/2129(INL))’, recitals 4 and 5 and the proposed article 8(5) of Brussels I bis; European Group

of Private International Law, ‘Recommendation to the European Commission Concerning the

Private International Law Aspects of the Future Instrument of the European Union on Corporate

Due Diligence and Corporate Accountability of 8 October 2021’, article II(1); European Group of

Private International Law, ‘Recommendation Concerning the Proposal for a Directive of 23

February 2022 on Corporate Sustainability Due Diligence, Following Up on Its Recommendation

to the Commission of 8 October 2021’, article II(1); Practice Direction 6B – Service out of the

Jurisdiction, r 3.1(3)

Regarding article 9.1(d):

On deleting this provision:

As the Chairperson-Rapporteur clarified in his introduction of article 9 during the 10th session of

the OEIGWG, article 9.1(d) is limited to the civil law context, recognizing the limited use of this

basis of jurisdiction regarding public law crimes. But this basis is controversial even in the field of

jurisdiction in civil matters. While the exercise of jurisdiction based solely on the claimant’s

nationality is indeed present in some domestic legal systems, a good example being article 14 of

the French Civil Code, States may want to consider that this jurisdictional rule and the jurisdictional

rules of this kind in the laws of other EU Member States have been “blacklisted” at the EU level

5with respect to defendants domiciled within the EU because they are considered exorbitant. In

other words, the Brussels I bis Regulation specifically provides that “in particular”, article 14 of the

French Civil Code and some other rules of national jurisdiction of this kind ([2015] OJ C4/2, List 1)

“shall not be applicable as against [persons domiciled in a Member State]” (Brussels I bis

Regulation, article 5). Moreover, domestic jurisdictional rules based on the claimant’s nationality or

habitual residence were included in the list of prohibited grounds of jurisdiction in the interim text

of the preliminary draft convention on jurisdiction and foreign judgments in civil and commercial

matters of October 1999, prepared by the Permanent Bureau of the Hague Conference on Private

International Law. While this preliminary draft did not eventually result in a convention on jurisdiction

in civil and commercial matters (although negotiations on a jurisdictional convention are currently

ongoing at the Hague Conference), there was some agreement at the time that domestic

jurisdictional rules based on the claimant’s nationality or habitual residence should be prohibited.

References: Hague Conference, ‘Summary of the Outcome of the Discussion in Commission II of

the First Part of the Diplomatic Conference 6-20 June 2001, Interim Text, Prepared by the

Permanent Bureau and the Co-Reporters’, article 18(2)(b) and (d); Regulation (EU) No 1215/2012

of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the

recognition and enforcement of judgments in civil and commercial matters (recast), article 5; The

information referring to Article 76 of Regulation (EU) No 1215/2012 of the European Parliament

and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and

commercial matters, List 1

On providing that a victim with the nationality, or habitual residence in the territory or jurisdiction,

of any State Party can seek remedy through civil proceedings in any State Party:

This proposal would significantly expand article 9.1(d) of the draft legally binding instrument. It

would allow a victim who is a national or habitual resident of a State Party to commence

proceedings in any State Party, even where the forum State has no connection to the parties or the

dispute and where justice can be obtained in the courts closely connected to the case. At present,

there is one rule in comparative civil jurisdiction law that comes close to it: article 6(2) of the

Brussels I bis Regulation. This article provides that, against a defendant domiciled in a non-EU

State, any person domiciled in a Member State may, whatever his nationality, avail himself in that

Member State of the rules of jurisdiction there in force in the same way as nationals of that Member

State. References: Regulation (EU) No 1215/2012 of the European Parliament and of the Council

of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and

commercial matters (recast), article 6(2)

On replacing the current text of article 9.1 with a provision which would allow victims and their

families to choose to bring claims, without discrimination based on nationality or domicile, before

the courts of the State Party where the human rights abuse or violation occurred and/or produced

effects, an act or omission contributing to the human rights abuse or violation occurred, the

perpetrator is domiciled or the victim is its national or domiciliary:

This proposal aims to replace the current version of article 9.1(d) of the draft legally binding

instrument. We would like to make four observations regarding this proposed replacement. First, a

key difference between the two proposals is that the current version of article 9.1(d) seeks to clarify

how jurisdiction should be established both in criminal and civil law, whereas the proposed

replacement is limited to “jurisdiction with respect to claims brought by victims”, that is claims for

civil remedies, victim-initiated claims for administrative remedies and private criminal prosecutions.

It does not appear to cover cases where administrative or criminal proceedings are commenced by

State authorities on their own motion. Second, the proposed replacement would apply “irrespective

of the nationality or place of domicile” of the victims. However, this wording would not alter the

substance of article 9.1(d), as article 4.2 already guarantees victims the right to non-discriminatory

access to justice. Third, the proposed replacement grants the choice of forum to “the victims and

their family”. This may create legal uncertainty because the term “family” has not been defined and

in situations where the interests of the victim and their family differ. Four, the relationship between

points a) and b) of the replacement proposal is unclear. The wording “where the human rights

abuse or violation occurred” should be read in conjunction with article 1.3, which defines “human

6rights abuse” as any acts or omissions that take place in connection with business activities and

results in an adverse human rights impact. If article 9.1(d) is read in this way, then article 9.1(d)

could be interpreted as pointing to the courts for the place of the direct perpetrator's act/omission,

as well as for the place of the acts/omissions of any contributors, in which case there is an overlap

between the bases of jurisdiction set out in points a) and b) of the replacement proposal (“where

the human rights abuse or violation occurred” and “where an act or omission contributing to the

human rights abuse or violation occurred”).

Regarding article 9.2

On specifying that the concept of domicile applies “without prejudice to any broader definition of

domicile provided for in any international instrument” to “a legal or natural person conducting

business activities particularly those of a transnational character”:

On the one hand, the wording “without prejudice to any broader definition of domicile provided for

in any international instrument” is potentially problematic because it refers to any broader definition

of domicile provided for in any international instrument, regardless of the instrument’s purpose.

Different international legal instruments may define the concept of domicile differently, each for its

own specific and limited purpose. A reference to any broader definition of domicile provided for in

any international instrument risks undermining the purpose for which the definition of domicile is

established in a particular international legal instrument. Even if it were specified that the concept

of domicile applies “without prejudice to any broader definition of domicile provided for in any

international instrument dealing with jurisdiction”, this wording would be redundant in light of the

saving for the application of the most favourable provision in article 14.3. On the other hand, it does

not appear to be any principled reason against defining the concept of domicile for both legal

persons and natural persons conducting business activities in article 9.2. However, two points

should be considered. First, the domicile of legal persons is defined in article 9.2 because this is

used as a basis of jurisdiction in article 9.1(c)(i). Defining the domicile of natural persons would be

justified if this is also used as a basis of jurisdiction in article 9.1. However, article 9.1(c)(ii) relies

on the nationality and habitual residence of natural persons. Second, it should be noted that the

definitions of domicile or habitual residence in the Convention of 2 July 2019 on the Recognition

and Enforcement of Foreign Judgments in Civil or Commercial Matters and the Brussels I bis

Regulation do not cover natural persons. In sum, there is no reason to insert the wording "without

prejudice to any broader definition of domicile provided for in any international instrument", whereas

a definition of domicile of natural persons will only add value if this connecting factor is used in the

jurisdictional rules in article 9.1, which is not the case at the moment. References: Regulation (EU)

No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction

and the recognition and enforcement of judgments in civil and commercial matters (recast), articles

62 and 63; Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments

in Civil or Commercial Matters, article 3(2)

On adding “principal or subsidiary” before “place of incorporation or registration” and “or subsidiary”

before “assets or operations”, “administration or management” and “place of business or activity”:

Adding “principal or subsidiary” before “place of incorporation or registration” may create legal

uncertainty, as a legal person is “incorporated” in the country where it is formed and given legal

status. It can also be “registered” in another country if it establishes a presence or branch there,

but in these cases it would have to comply with the rules and regulations that are applicable to

"foreign entities" in that particular country. In other words, a company can only be “incorporated” in

one country, but it can be “registered” in many other countries at the same time. A legal person can

have both “principal” and “subsidiary” assets or operations, “central” and “subsidiary” administration

or management and “principal” and “subsidiary” places of business or activity. However, including

such wording would significantly expand article 9.2. States may want to consider clarifying the

meaning of “principal” and “subsidiary” in these contexts.

Regarding article 9.2(b)

7On deleting this provision:

Article 9.2(b) refers to the place of “principal assets or operations”. The place of principal assets

and the place of principal operations are different connecting factors and should be analysed

separately. The place of assets as a basis of jurisdiction is controversial. For instance, in the field

of jurisdiction in civil matters, some countries permit their courts to establish jurisdiction based

solely on the presence of the defendant’s property within the court’s territory. A good example is

section 23 of the German Civil Code. However, this jurisdictional rule and the jurisdictional rules of

this kind in the laws of other EU Member States have been “blacklisted” at the EU level with respect

to defendants domiciled within the EU because they are considered exorbitant. In other words, the

Brussels I bis Regulation specifically provides that “in particular”, section 23 of the German Civil

Code and some other rules of national jurisdiction of this kind ([2015] OJ C4/2, List 1) shall not be

applicable as against [persons domiciled in a Member State]” (Brussels I bis Regulation, article 5).

Moreover, domestic jurisdictional rules based on the presence or the seizure of the defendant’s

property, where the dispute is not directly related to that property, were included in the list of

prohibited grounds of jurisdiction in the interim text of the preliminary draft convention on jurisdiction

and foreign judgments in civil and commercial matters of October 1999. While this preliminary draft

did not eventually result in a convention on jurisdiction in civil and commercial matters (although

negotiations on a jurisdictional convention are currently ongoing at the Hague Conference), there

was some agreement at the time that domestic rules of general jurisdiction based on the presence

or the seizure of the defendant’s property should be prohibited.

It is also worth noting that the reason why some States may want to include reference to assets in

article 9.2(b) is because they are particularly concerned about cases where corporate structuring

silos assets in jurisdictions separate from where the operations/activities take place to insulate

assets from potential enforcement in cases of liability for arising harms. Another way to deal with

this problem is to promote uniform rules on recognition and enforcement of foreign judgments in

the legally binding instrument. We note that recognition and enforcement of foreign judgments was

addressed under articles 12.10 and 12.11 of the third revised draft of the legally binding instrument

of 17 August 2021.

On the expression “the place of operations”:

As for “the place of principal operations”, it should be noted that this connecting factor overlaps, to

an extent, with “principal place of business or activity” as set out in article 9.2(d). Moreover, the

place of operations/activities of a branch is used as the basis for a rule of special, not general,

jurisdiction in the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign

Judgments in Civil or Commercial Matters, the Brussels I bis Regulation and the interim text of the

preliminary draft convention on jurisdiction and foreign judgments in civil and commercial matters

of October 1999. Moreover, the carrying on of commercial or other activities by the defendant as a

basis of general jurisdiction was included in the list of prohibited grounds of jurisdiction in the interim

text of the preliminary draft convention on jurisdiction and foreign judgments in civil and commercial

matters of October 1999. While this preliminary draft did not eventually result in a convention on

jurisdiction in civil and commercial matters (although negotiations on a jurisdictional convention are

currently ongoing at the Hague Conference), there some agreement at the time that domestic rules

of general jurisdiction based on the carrying on of commercial or other activities should be

prohibited. References: Hague Conference, ‘Summary of the Outcome of the Discussion in

Commission II of the First Part of the Diplomatic Conference 6-20 June 2001, Interim Text,

Prepared by the Permanent Bureau and the Co-Reporters’, articles 9 and 18(2)(a) and (e);

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December

2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial

matters (recast), articles 5 and 7(5); The information referring to Article 76 of Regulation (EU) No

1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and

enforcement of judgments in civil and commercial matters, List 1; Convention of 2 July 2019 on the

Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, article 5(1)(d)

Regarding article 9.2(c)

8On deleting this provision:

Defining the domicile of a legal person by reference to the place of their “central administration or

management” is common to many jurisdictions. It is one of the bases of indirect jurisdiction in the

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or

Commercial Matters. Furthermore, this connecting factor is used to define the domicile of legal

persons in the Brussels I bis Regulation and the International Law Association Resolution No

2/2012 on international litigation and the interests of the public, and was also used to define the

habitual residence of legal persons in in the interim text of the preliminary draft convention on

jurisdiction and foreign judgments in civil and commercial matters of October 1999. References:

Hague Conference, ‘Summary of the Outcome of the Discussion in Commission II of the First Part

of the Diplomatic Conference 6-20 June 2001, Interim Text, Prepared by the Permanent Bureau

and the Co-Reporters’, article 3(3); Regulation (EU) No 1215/2012 of the European Parliament and

of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of

judgments in civil and commercial matters (recast), article 63; ILA, ‘Resolution No 2/2012:

International Litigation and the Interests of the Public’, rule 2.1; Convention of 2 July 2019 on the

Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, article 3(2)

Regarding article 9.2(d)

On adding “on a regular basis” after “principal place of business or activity”:

Defining the domicile of a legal person by reference to the place of their “principal place of business

or activity” is common to many jurisdictions. It is one of the bases of indirect jurisdiction in the

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or

Commercial Matters. Furthermore, this connecting factor is used to define the domicile of legal

persons in the Brussels I bis Regulation and the International Law Association Resolution No

2/2012 on international litigation and the interests of the public, and was also used to define the

habitual residence of legal persons in in the interim text of the preliminary draft convention on

jurisdiction and foreign judgments in civil and commercial matters of October 1999. The concept of

“principal place of business or activity” already incorporates the carrying out of a business or activity

on a regular basis, so the addition of this wording would not alter the substance of article 9.2(d).

References: Hague Conference, ‘Summary of the Outcome of the Discussion in Commission II of

the First Part of the Diplomatic Conference 6-20 June 2001, Interim Text, Prepared by the

Permanent Bureau and the Co-Reporters’, article 3(3); Regulation (EU) No 1215/2012 of the

European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition

and enforcement of judgments in civil and commercial matters (recast), article 63; ILA, ‘Resolution

No 2/2012: International Litigation and the Interests of the Public’, rule 2.1; Convention of 2 July

2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters,

article 3(2)

On providing that a person is also domiciled in the place where their substantial assets are held:

See comment to “on deleting article 9.2(b)” above, to the extent to which it concerns the deletion

of the reference to the place of “principal assets”.

Regarding article 9.3

On adding “and protect” after “respect”:

States have obligations to respect, protect and fulfil human rights. The obligation to respect means

that States must refrain from interfering with or curtailing the enjoyment of human rights. The

obligation to protect requires States to protect individuals and groups against human rights abuses

by non-State actors. Article 9.3 concerns the exercise of jurisdiction by State agencies, which

relates not only to the obligation to respect the rights of victims, but also to the obligation to protect

victims against human rights abuses by providing access to justice and effective remedies.

Regarding article 9.4:

9On providing that a court shall not decline its jurisdiction to hear a case on the basis that there is

another court that also has jurisdiction in accordance with jurisdiction criteria contained in article

9.1:

The purpose of this proposal is unclear. Its aim appears to be to limit the operation of forum non

conveniens or doctrines and rules with a similar effect, but it does so only in situations where “there

is another court that also has jurisdiction in accordance with jurisdiction criteria contained in article

9.1.” This provision does not address situations where another court also has jurisdiction, but not

in accordance with the criteria set out in article 9.1. It is unclear whether the obligation not to decline

jurisdiction to hear a case would also apply in such case. Another problematic aspect of this

proposal is that it would effectively guarantee parallel proceedings where two or more State Parties

assume jurisdiction in accordance with jurisdiction criteria contained in article 9.1, thus creating the

risk of abuse of process, forum shopping, conflicting judgments and wasting of costs and judicial

resources.

On providing that States Parties shall maintain a database of judicial proceedings taking place in

States Parties:

Articles 12, 13 and 16 of the draft legally binding instrument address mutual legal assistance,

international cooperation and implementation, respectively. The obligation of States Parties to

maintain a database of judicial proceedings may more appropriately fall under one of those articles.

On replacing “any” with “a relevant”:

The wording “any” is broader than “a relevant”. A duty to consult whenever a State Party exercises

jurisdiction over a human rights abuse and “any aspect of such human rights abuse” is being

determined in proceedings pending in another State Party is broader than a duty that arises only

when “a relevant aspect of such human rights abuse” is being determined in such proceedings.

The latter wording may be interpreted to mean that a degree of legal or factual connection between

the two proceedings is required before the duty to consult arises.

On providing that, in cases of parallel proceedings, State Parties shall consult one another through

their authorities:

The wording “the relevant States agencies of each State shall consult one another with a view to

coordinating their actions” and “the relevant States/agencies of each State shall consult one

another through their established central authorities” differ in that the former appears to imply direct

contact between the State agencies handling cases pending in two or more State Parties, whereas

the latter suggests direct contact between established central authorities that are not necessarily

authorities handling the cases. Articles 12 and 13 of the draft legally binding instrument address

mutual legal assistance and international cooperation. The duty of States Parties to consult may

more appropriately fall under those articles. Furthermore, States may want to refer to the work of

the Hague Conference on Private International Law working group on jurisdiction, which deals with

parallel proceedings. References: Hague Conference on Private International Law, ‘Working Group

on Jurisdiction: Report of 2024’

On providing for universal jurisdiction:

The wording of this proposed rule appears to be inspired by the Basic Principles and Guidelines

on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human

Rights Law and Serious Violations of International Humanitarian Law. According to principle 5,

where so provided in an applicable treaty or under other international law obligations, States shall

incorporate or otherwise implement within their domestic law appropriate provisions for universal

jurisdiction. The wording “where applicable under international law” in the proposed rule reflects

the fact that universal jurisdiction, in particular universal civil jurisdiction, is controversial. However,

the wording “over human rights violations that amount to international crimes” is redundant, as it is

already implied in the wording “where applicable under international law” that universal jurisdiction

can only be exercised over certain international crimes. References: Basic Principles and

10Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International

Human Rights Law and Serious Violations of International Humanitarian Law, principles 4 and 5

On providing for the forum of necessity:

The forum of necessity is a useful jurisdictional rule where proceedings cannot be commenced in

either the host State or the home State. Various bodies have recommended the adoption of forum

necessitatis for business-related human rights abuses within domestic or regional legal systems,

including the International Law Association, the Council of Europe, the European Parliament’s

Committee on Legal Affairs and the European Group of Private International Law. However, the

EU legislator did not accept these proposals and domestic legal systems do not have tailor-made

forum necessitatis rules for business-related human rights abuses. It should also be noted that

forum necessitatis may be broader than what is permitted under some domestic legal systems. A

rule of jurisdiction over co-defendants was included in article 9.5 of the third revised draft of the

legally binding instrument of 17 August 2021. References: ILA, ‘Resolution No 2/2012: International

Litigation and the Interests of the Public’, rule 2.3; Council of Europe, Recommendation

CM/Rec(2016)3 of the Committee of Ministers to Member States adopted on 2 March 2016,

recommendation 36; European Parliament Committee on Legal Affairs, ‘Draft Report of 11

September 2020 with Recommendations to the Commission on Corporate Due Diligence and

Corporate Accountability (2020/2129(INL))’, recitals 4 and 6 and the proposed article 26(a) of

Brussels I bis; European Group of Private International Law, ‘Recommendation to the European

Commission Concerning the Private International Law Aspects of the Future Instrument of the

European Union on Corporate Due Diligence and Corporate Accountability of 8 October 2021’,

article II(2); European Group of Private International Law, ‘Recommendation Concerning the

Proposal for a Directive of 23 February 2022 on Corporate Sustainability Due Diligence, Following

Up on Its Recommendation to the Commission of 8 October 2021’, article II(2); Hague Conference

on Private International Law, ‘Working Group on Jurisdiction: Report of 2024’, article 11

On providing for the avoidance of imposing any legal obstacles to initiate proceedings, including

forum non conveniens, unless an adequate alternative forum exists that would likely provide a

timely, fair and impartial remedy:

The doctrine of forum non conveniens has been generally recognized as an obstacle to access to

remedy in business and human rights cases because such jurisdiction disputes are invariably

costly, protracted and hard fought by parties between whom there is generally no equality of arms.

Consequently, forum non conveniens rulings may result in depriving victims of accessing home

State courts where they could obtain effective access to remedy, and conversely because in host

State courts, victims are more likely to face obstacles addressed in articles 4, 5 and 7 of the draft

legally binding instrument.

Article 9.3 of the current draft deals with this matter. The current draft does not propose the removal

of forum non conveniens. Rather, it provides that “decisions by relevant State agencies relating to

the exercise of jurisdiction in the cases referred to in article 9.1 shall respect the rights of victims in

accordance with article 4, including with respect to the discontinuation of legal proceedings on the

grounds that there is another, more convenient or more appropriate forum with jurisdiction over the

matter”. States may want to consider the effectiveness of article 9.3 to deal with forum non

conveniens in light of the fact that it does not specifically refer to “forum non conveniens”, uses

broad discretionary language (“measures as may be necessary” and “consistent with its domestic

legal and administrative systems”) and is generally linked to article 4 rather than specific parts of

article 4 that deal with claims.

On the one hand, the removal of forum non conveniens is the solution recommended by the Council

of Europe Committee of Ministers to its Member States, where jurisdiction is established on the

basis of the defendant’s domicile. It is also proposed in the International Law Association

Resolution No 2/2012 on international litigation and the interests of the public, where the jurisdiction

of a court was based on one of the jurisdictional rules proposed by the Committee. In other cases,

that is, where jurisdiction was not based on a proposed jurisdictional rule, the Committee proposed

11to limit the operation of forum non conveniens. Finally, forum non conveniens is excluded where

the jurisdiction of a court of an EU Member State is assumed on the basis of the Brussels I bis

Regulation, although this regulation does contain rules of lis pendens where parallel proceedings

are pending in a non-EU state that come close to forum non conveniens in articles 33 and 34. On

the other hand, there may be reasons to refrain from the removal of forum non conveniens and

instead to limit its operation. This is because in common law countries, forum non conveniens

serves as the primary mechanism for dealing with parallel and related proceedings. Removing

forum non conveniens without introducing an alternative mechanism for parallel and related

proceedings would deprive States with a common law system of a fundamental element of private

international law. The proposal providing for the avoidance of imposing any legal obstacles to

initiate proceedings, including forum non conveniens, unless an adequate alternative forum exists

that would likely provide a timely, fair and impartial remedy is along these lines.If States do not

adopt this proposal, they may want to consider clearer drafting when it comes to the exercise of

jurisdictional discretion, including forum non conveniens, in article 9.3.

References: Case C-281/02 Owusu v N. B. Jackson, trading as "Villa Holidays Bal-Inn Villas"

ECLI:EU:C:2005:120; Regulation (EU) No 1215/2012 of the European Parliament and of the

Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in

civil and commercial matters (recast), recitals 23 and 24, articles 33 and 34; ILA, ‘Resolution No

2/2012: International Litigation and the Interests of the Public’, article 2.5; Council of Europe,

Recommendation CM/Rec(2016)3 of the Committee of Ministers to Member States adopted on 2

March 2016, recommendation 34; UN Committee on Economic, Social and Cultural Rights,

General Comment No 24, para 43.

---------------------

ARTICLE 11 – APPLICABLE LAW

1. OBJECTIVE OF THE ARTICLE AND OVERVIEW OF CORE ELEMENTS

Objective:

In the introduction of article 11 during the 10th session of the OEIGWG, the Chairperson-

Rapporteur specified the objective sought by each paragraph of article 11 of the updated draft.

In the updated draft of the legally binding instrument, no modifications were made regarding the

content of the article vis-à-vis the third revised draft. The article sets forth that all procedural matters

that are not regulated by the legally binding instrument shall be governed by the law of the State

where the claim is being examined.

In addition, article 11.2 sets forth that all substantive questions that are not regulated by the legally

binding instrument may, at the request of the victim, be regulated by the law of the State where the

acts or omissions happened, where the effects took place, or where the natural or legal person

alleged to have committed said acts or omissions is domiciled.

Core elements:

- Providing for the application of the law of the forum to all procedural matters not specifically

regulated in the legally binding instrument

- Providing for the application of one of the listed laws to all substantive matters not specifically

regulated under the legally binding instrument, at the request of the victim

2. OVERVIEW OF MAIN PROPOSALS

12Throughout their interventions on article 11, States made references to elements that should

preferably be discussed in articles 1 (definitions) or 3 (scope) or 16 (implementation), including to

the addition of the phrase “affected persons and communities” to victims. A decision in those

articles regarding these terms would apply generally to the rest of the draft legally binding

instrument. Furthermore, several interventions introduced new elements to the draft legally binding

instrument that would have different implications. Among them, the following were raised in the

discussion during the 10th session.

It should be noted that the UNGPs do not expressly address choice of law (denominated “applicable

law” in the updated draft of the legally binding instrument). Choice of law is primarily relevant to

Pillars 1 and 3. States have obligations to respect, protect and fulfil the human rights of individuals

within their territory and/or jurisdiction. This requires taking appropriate steps to prevent and

redress such abuse. These obligations can be fulfilled through various means, including effective

adjudication. States should take appropriate steps to ensure the effectiveness of domestic judicial

mechanisms when addressing business-related human rights abuses, including considering ways

to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.

Choice-of-law rules are related to these principles by determining which state’s law applies to a

claim for a civil remedy sought in court proceedings. Article 9 of the draft legally binding instrument

is particularly closely related with article 4 on rights of victims and article 7 on access to remedy.

3. POTENTIAL IMPLICATIONS OF MAIN PROPOSALS

Regarding article 11

On deleting article 11:

Article 11.2 is inspired by article 7 of the Rome II Regulation, which is applied by the courts of EU

Member States to determine the law applicable to non-contractual obligations arising out of

environmental damage or damage sustained by persons or property as a result of such damage.

Article 7 of Rome II provides for the default application of the law of the place where the direct

damage occurs, unless the person seeking compensation for damage chooses the law of the

country in which the event giving rise to the damage occurred. The rationale behind this choice-of-

law rule is that the claimant will choose the law most favourable to their interests, which, in turn,

will lead to the highest level of environmental protection. A choice-of-law rule that allows the victim

of environmental damage to choose between the law of the place of the damage and the law of the

place of the action is recommended by the United Nations Environment Programme and the

International Law Association in the field of civil liability for environmental harm. This approach is

also highlighted in the work of the Hague Conference on Private International Law.

The European Parliament’s Committee on Legal Affairs and the European Group of Private

International Law have proposed incorporating a similar choice-of-law rule into Rome II for cases

involving business-related human rights abuses. The EU legislator did not accept these proposals.

Instead, the original version of the Corporate Sustainability Due Diligence Directive merely provides

that Member States shall ensure that the provisions of national law transposing article 29 on civil

liability of companies and the right to full compensation are of overriding mandatory application in

cases where the law applicable to claims to that effect is not the national law of a Member State.

This means that the provisions of national law transposing article 29 of CSDDD apply to all

situations falling within their scope irrespective of the content of the non-EU State law designated

as applicable by the choice-of-law rules in Rome II. The overriding purpose of Article 11 of the draft

legally binding instrument is to ensure that victims of human rights abuse should be able to benefit

from substantive laws that may apply in the state where one of the defendants is based or made

key decisions or where the harm originated, that are more favourable to the victims than the laws

of the state where the harm occurred. A specific provision to this effect would be a significant

change compared to the existing legal framework and it may be workable, provided that the cases

to which it applies and its effect are clearly defined. References: ILA, ‘Resolution No 6/2006:

Transnational Enforcement of Environmental Law’, rule 5; Regulation (EC) No 864/2007 of the

13European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual

obligations (Rome II), recitals 24 and 25, articles 4(1) and 7; 2010 UNEP Guidelines on Liability,

‘Guidelines for the Development of Domestic Legislation on Liability, Response Action and

Compensation for Damage Caused by Activities Dangerous to the Environment’, guideline 13;

European Parliament Committee on Legal Affairs, ‘Draft Report of 11 September 2020 with

Recommendations to the Commission on Corporate Due Diligence and Corporate Accountability

(2020/2129(INL))’, recitals 4 and 5 and the proposed article 6a in Rome II; European Group of

Private International Law, ‘Recommendation to the European Commission Concerning the Private

International Law Aspects of the Future Instrument of the European Union on Corporate Due

Diligence and Corporate Accountability of 8 October 2021’, article IV; European Group of Private

International Law, ‘Recommendation Concerning the Proposal for a Directive of 23 February 2022

on Corporate Sustainability Due Diligence, Following Up on Its Recommendation to the

Commission of 8 October 2021’, article IV; Directive (EU) 2024/1760 of the European Parliament

and of the Council of 13 June 2024 on corporate sustainability due diligence, recital 90 and article

29(7); European Commission, ‘Proposal for a Directive of the European Parliament and of the

Council amending Directives 2006/43/EC, 2013/34/EU, (EU) 2022/2464 and (EU) 2024/1760 as

Regards Certain Corporate Sustainability Reporting and Due Diligence Requirements’, recital 28

and article 4

Regarding article 11.1

On replacing “the competent court…the law of that court seized on the matter” with “a competent

court of a State Party…the law of that State Party”:

Both formulations codify the rule that matters of procedure are governed by the law of the forum.

This rule is universally accepted and applied in private international law, although it is not commonly

codified in either domestic laws or international instruments. Given the importance of damages and

statutes of limitations to securing an effective remedy, an important issue not addressed in the draft

legally binding instrument is whether assessment of damages and statutes of limitations are

matters of procedure or substance. The difference is important because matters of procedure are

governed by the law of the forum whereas matters of substance are governed by the law

designated as applicable by choice-of-law rules, which can be foreign law. Traditionally, in common

law countries these issues were regarded as matters of procedure, although that has changed in

some common law countries. In civil law countries, these issues tend to be regarded as matters of

substance, as shown by article 15 of the Rome II Regulation. States may want to consider whether

they want to clarify which issues are governed by the law designated as applicable to matter of

substance under article 11.2. References: Regulation (EC) No 864/2007 of the European

Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations

(Rome II), article 15

Regarding article 11.2

On deleting this provision:

If only article 11.2 is deleted, then only article 11.1, which codifies the rule that matters of procedure

are governed by the law of the forum, will remain. As noted above, this rule is universally accepted

and applied, although it is not commonly codified in either domestic laws or international

instruments. In other words, article 11.2 represents the added value of article 11. Without it, article

11 does not contribute anything new to the existing legal framework. If States wish to retain article

11.2, they may want to consider the value that any choice-of-law provision brings to the legally

binding instrument, and in particular the following points in addition to the ones discussed in

response to State proposals below. On the one hand, the scope of article 11.2 is too narrow. It is

limited to “all matters of substance which are not specifically regulated under this (legally binding

instrument)”. This is problematic from a private international law perspective. Not all rules laid down

in the draft legally binding instrument are uniform rules that will have to be implemented in the same

way in the domestic laws of State Parties. Instead, many rules in the draft legally binding instrument

will leave State Parties considerable discretion in deciding how best to implement them in their

14domestic laws. That means that even with respect to matters of substance that are specifically

regulated under the legally binding instrument, domestic laws of State Parties may differ, potentially

leading to choice-of-law disputes. In this respect, it is also not entirely clear what is specifically

regulated under the legally binding instrument. For example, if a case involving a human rights

abuse is pleaded as a tort claim, based on allegations of negligence, and does not expressly allege

a human rights abuse, it is not clear whether that would be considered to be specifically regulated

under the legally binding instrument.

On the other hand, the scope of article 11.2 may be considered too broad. Article 8 on legal liability

can be implemented in the domestic laws of State Parties in various ways, such as through private

law rules on tort/delict, unjust enrichment or property, through employment, consumer or

environmental legislation or through specialized due diligence legislation. In many private

international law systems, there are choice-of-law rules for tort/delict, unjust enrichment, property,

employment, consumer, environmental and other disputes. Article 11.2, with its broad scope, has

the potential to pose challenges to the existing choice-of-law systems and to lead to disputes about

the scope of application of article 11.2 and the existing choice-of-law rules.

The way article 11.2 is currently drafted, provides that “all matters of substance which are not

specifically regulated under this (legally binding instrument) may, upon the request of the victim,

be governed by the law of another State”. The wording “of another State” suggests that there is a

default law that applies to substantive matters. However, article 11.2 does not specify what that

default governing law is. A systemic interpretation of article 11.2 (that is, one that takes into account

its relationship with article 11.1 and its position within the draft legally binding instrument) suggests

that a possible interpretation is that “the law of another State” should be read in conjunction with

the wording “the law of that court seized on the matter” from article 11.1. If this interpretation is

correct, then 11.2 allows the victim to choose between 1) the law of the forum (article 11.2, read in

conjunction with article 11.1), 2) the law of the place of the action (article 11.1(a)), 3) the law of the

place of the damage (article 11.1(a)), 4) the law of the perpetrator’s domicile (article 11.1(b)). While

some of the options 2)-4) can be found in the references below, option 1), that is the application of

the law of the forum, would lead to legal uncertainty and unforesee-ability and increase the prospect

of forum shopping, multiplicity of proceedings, conflicting judgments and wasting of costs and

judicial resources.

The number of potentially applicable laws under article 11.2 is large, potentially referring to the

place where direct damage occurred and the place where indirect damage occurred; to the acts or

omissions of both the defendant and the business enterprise with which the defendant had a

business relationship that caused or contributed to human rights abuses; to the domicile of both

the defendant and the business enterprise with which the defendant had a business relationship

that caused or contributed to human rights abuses, which is particularly problematic because the

concept of domicile is broadly defined in article 9.2.

To the best of our knowledge, business and human rights-specific choice-of-law rules have not

been proposed outside Europe. However, many countries adopt general choice-of-law rules for

torts that are based on the “ubiquity principle”, i.e. the idea that either the court or the victim should

be allowed to choose the law that is most favourable for the victim from a list of potentially applicable

laws (usually, the law of the place of the conduct or the law of the place of damage). However,

some countries that adopt general choice-of-law rules for torts that are based on the “ubiquity

principle” limit its operation by means of a foresee-ability provision by providing, for example, that

the law of the place of damage shall be applied only if its application was foreseeable for the

tortfeasor.

Article 7 of the Rome II Regulation, which inspired article 11.2 of the draft legally binding instrument,

does not preclude the parties from exercising their party autonomy to choose the applicable law

under the conditions set out in article 14 of Rome II. In particular, allowing the parties to choose the

applicable law by an agreement entered into after the event giving rise to the damage occurred

15may facilitate the negotiation and settlement of disputes. At present, article 11.2 seems to exclude

party autonomy, but it is unclear if this is a deliberate choice. A lot of transnational business and

human rights litigation ends in settlement, so a provision allowing the parties to agree on the

applicable law ex post factum may be appropriate.

Some proposals for choice of law in cases involving business-related human rights abuses are less

ambitious than the current version of article 11.2 and merely provide for a kind of public policy

exception where the law determined as applicable under the choice-of-law rules of the forum does

not afford sufficient protection to human rights. Examples include Rule 3 of the International Law

Association Resolution No 2/2012 on international litigation and the interests of the public and

recommendation 40 of the 2016 Council of Europe’s Committee of Ministers to Member States. A

public policy exception could also be combined with choice-of-law rules.

One of the comments we made in relation to article 10 is that “In many legal systems, the issue of

limitation is regarded as one of substance, not procedure, governed by the law designated as

applicable by the choice-of-law rules of the forum. This means that in many civil proceedings, the

law applicable to the issue of limitation will be the law of a foreign state, which may not be a State

Party bound by article 10. States may wish to consider adding a paragraph to article 10 addressing

the situation where the law applicable to the issue of limitation under article 11 is a foreign law that

lays down unduly restrictive statutes of limitations.” The proposals that merely provide for a kind of

public policy exception where the law determined as applicable under the choice-of-law rules of the

forum does not afford sufficient protection to human rights could also inspire the content of any

such article 10.3.

References: ILA, ‘Resolution No 6/2006: Transnational Enforcement of Environmental Law’, rule

5; Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007

on the law applicable to non-contractual obligations (Rome II), article 7 and 14; 2010 UNEP

Guidelines on Liability, ‘Guidelines for the Development of Domestic Legislation on Liability,

Response Action and Compensation for Damage Caused by Activities Dangerous to the

Environment’, guideline 13(1); ILA, ‘Resolution No 2/2012: International Litigation and the Interests

of the Public’, rule 3; Council of Europe, Recommendation CM/Rec(2016)3 of the Committee of

Ministers to Member States adopted on 2 March 2016, recommendation 40; European Parliament

Committee on Legal Affairs, ‘Draft Report of 11 September 2020 with Recommendations to the

Commission on Corporate Due Diligence and Corporate Accountability (2020/2129(INL))’, the

proposed article 6a in the Rome II Regulation; European Group of Private International Law,

‘Recommendation to the European Commission Concerning the Private International Law Aspects

of the Future Instrument of the European Union on Corporate Due Diligence and Corporate

Accountability of 8 October 2021’, article IV(1); European Group of Private International Law,

‘Recommendation Concerning the Proposal for a Directive of 23 February 2022 on Corporate

Sustainability Due Diligence, Following Up on Its Recommendation to the Commission of 8 October

2021’, article IV(1)

On deleting “of substance”:

Article 11.1 codifies the universally accepted and applied rule that matters of procedure are

governed by the law of the forum. It is also a widely accepted and applied rule of private

international law that, in situations involving an international element, matters of substance are

subject to the choice-of-law process, which may result in the application of foreign law. Article 11.2

sets out a choice-of-law rule for matters of substance. If the wording “of substance” is deleted from

article 11.2, a question of interpretation would arise, namely whether the choice-of-law rule it sets

out would apply to both procedural and substantive matters, or only to substantive matters. A

systemic interpretation of article 11.2 (that is, one that takes into account its relationship with article

11.1 and its position within the draft legally binding instrument) would suggest that the best

interpretation would be that article 11.2 would still apply only to matters of substance, even if the

wording “of substance” is deleted. In other words, the deletion of this wording is unlikely to change

the provision’s effect but would introduce a degree of legal uncertainty.

16On adding “affected persons and communities” after “victim”:

While the addition of the phrase “affected persons and communities” to “victims” should preferably

be discussed in articles 1 (definitions), 3 (scope) or 16 (implementation), States may wish to

consider one specific aspect of its use in article 11.2. The addition of the phrase “affected persons

and communities” specifically in article 11.2 may create legal uncertainty and unforeseeability in

cases where one or more victims, from a broader group of affected persons and/or an affected

community, bring a claim for a civil remedy. If the phrase “affected persons and communities” were

added to “victims” specifically in article 11.2, it could give rise to the question of whether it is the

claimant(s) who have the right to choose the applicable law or the broader group of affected

persons and/or community, particularly where the interests of the claimant(s) differ from those of

the broader group.

On subjecting the choice of law, upon the request of the victim, to either “the permission from the

law of the courts in which the case is adjudicated” or “the law of the State Party in which the case

is adjudicated”:

Article 11.2 provides that all matters of substance not specifically regulated under the legally

binding instrument may “upon the request of the victim” be governed by another law. The wording

“upon the request of the victim” is ambiguous. It can be interpreted either as granting the victim the

right to request the application of another law, subject to the court’s discretion, or as giving the

victim the right to choose the applicable law, which the court must respect. The aim of the proposal

to subject the choice of law, upon the request of the victim, to “the permission from the law of the

courts in which the case is adjudicated” appears to be to clarify that the victim only has the right to

make a request regarding the applicable law, not the right to actually choose it. By contrast, the

aim of the proposal to subject the choice of law, upon the request of the victim, to “the law of the

State Party in which the case is adjudicated” is ambiguous. It can be interpreted as meaning either

that the victim can only request the application of another law, with the court retaining discretion

under its own law, or that the victim may choose the applicable law, but only in accordance with

the conditions set by the law of the forum.

By way of comparison, article 7 of the Rome II Regulation clearly provides that the victim can

choose the applicable law, which the court must respect, by providing for the default application of

the law of the place where the direct damage occurs, “unless the person seeking compensation for

damage chooses to base his or her claim on the law of the country in which the event giving rise

to the damage occurred”. Recital 25 clarifies that the question of when the victim can make the

choice of law should be determined in accordance with the law of the Member State in which the

court is seised. Similarly, Guideline 13(2) of the 2010 UNEP Guidelines on Liability provides that

the timing of the claimant’s choice pursuant of law should be determined by the law of the forum.

States may want to clarify whether the choice of the applicable law from a list of potentially

applicable laws lies with the victim or the court; if the latter, whether the victim has any say in the

determination of the applicable law; if the former, whether the lex fori can impose any additional

requirements for the exercise of this choice. References: Regulation (EC) No 864/2007 of the

European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual

obligations (Rome II), recital 25 and article 7; 2010 UNEP Guidelines on Liability, ‘Guidelines for

the Development of Domestic Legislation on Liability, Response Action and Compensation for

Damage Caused by Activities Dangerous to the Environment’, guideline 13(2)

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ARTICLE 10 – STATUTE OF LIMITATIONS

1. OBJECTIVE OF THE ARTICLE AND OVERVIEW OF CORE ELEMENTS

17Objective:

In the introduction of article 10 during the 10th session of the Open-Ended Intergovernmental

Working Group on transnational corporations and other business enterprises with respect to human

rights, the Chairperson-Rapporteur specified the objective sought by each paragraph of article 10

of the updated draft.

The text of article 10 in the draft legally binding instrument maintains the core elements of the third

revised draft, but is drafted more accurately to facilitate their consideration and discussion.

This article seeks to ensure that there are no statutes of limitations for processes related to human

rights abuses that constitute war crimes, crimes against humanity or the crime of genocide, in

conformity with international human rights law, international criminal law and general international

law.

Furthermore, this provision aims to ensure that in other cases of business-related human rights

abuses, statutes of limitations reflect the gravity of the abuse, are adequate in light of the

circumstances and are in conformity with the rights of victims set forth in article 4.

Core elements:

- Ensuring there are no statutes of limitations for proceedings related to human rights abuses that

constitute the most serious crimes of concern to the international community as a whole

- Ensuring that in other cases of business-related human rights abuses, statutes of limitations are

mindful of the nature of the human rights abuse and the surrounding circumstances

2. OVERVIEW OF MAIN PROPOSALS

Throughout their interventions on article 10, States made references to elements that should

preferably be discussed in articles 1 (definitions), 3 (scope) or 16 (implementation), including to the

addition of the phrase “affected persons and communities” to victims; to “human rights abuses and

violations”; or to “gender-responsive” measures, among others. A decision in those articles

regarding these terms would apply generally to the rest of the draft legally binding instrument.

Furthermore, several interventions introduced new elements to the draft legally binding instrument

that would have different implications. Among them, the following were raised in the discussion

during the 10th session.

The UNGPs do not expressly address statutes of limitations. Statutes of limitations are primarily

relevant to Pillars 1 and 3. States have obligations to respect, protect and fulfil the human rights of

individuals within their territory and/or jurisdiction. This requires taking appropriate steps to prevent,

investigate, punish and redress such abuse. These obligations can be fulfilled through various

means, including effective adjudication. States should take appropriate steps to ensure the

effectiveness of domestic judicial mechanisms when addressing business-related human rights

abuses, including considering ways to reduce legal, practical and other relevant barriers that could

lead to a denial of access to remedy. Rules on statutes of limitations are related to these principles

by setting out the time limits within which legal (civil, administrative or criminal) proceedings can be

commenced.

In the current structure of the draft legally binding instrument, article 10 sits between two articles

dealing with private international law issues (namely, article 9 on jurisdiction and article 11 on

choice of law). Article 10 is more closely related to issues of rights of victims (article 4), access to

remedy (article 7) and legal liability (article 8) than to jurisdiction and applicable law. States may

want to consider whether this article would be better placed immediately after article 8, or as part

of article 7.

18In many legal systems, the issue of limitation is regarded as one of substance, not procedure,

governed by the law designated as applicable by the choice-of-law rules of the forum. This means

that in many civil proceedings, the law applicable to the issue of limitation is the law of a foreign

state, which may not be a State Party bound by article 10. States may want to consider adding a

paragraph to article 10 addressing the situation where the law applicable to the issue of limitation

under article 11 is foreign law that lays down unduly restrictive statutes of limitations.

3. POTENTIAL IMPLICATIONS OF MAIN PROPOSALS

Regarding article 10.1:

On replacing “human rights abuses which constitute the most serious crimes of concern to the

international community as a whole” with “human rights abuses which constitute crimes under

international law”:

Both formulations are used in international law. The wording “the most serious crimes of concern

to the international community as a whole” appears to be inspired by the Rome Statute of the

International Criminal Court. The wording “which constitute crimes under international law” seems

to be inspired by the Basic Principles and Guidelines on the Right to a Remedy and Reparation for

Victims of Gross Violations of International Human Rights Law and Serious Violations of

International Humanitarian Law. These terms are, however, ambiguous. “Crimes under

international law” can be interpreted as referring to acts/omissions that are crimes directly under

international law, such as genocide, crimes against humanity, war crimes and aggression, whereas

“the most serious crimes of concern to the international community as a whole” can be interpreted

as also referring to conduct that international law requires States to penalize, such as torture,

enforced disappearance, extrajudicial execution, slavery and corruption. Bearing in mind that

international criminal law distinguishes between crimes under international law, other serious

crimes of concern to the international community as a whole and other crimes that do not fall within

these categories, States may want to clarify the meaning of the proposed terms and to consider

the consequences of their use. References: 1998 Rome Statute of the International Criminal Court,

articles 5 and 29; 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation

for Victims of Gross Violations of International Human Rights Law and Serious Violations of

International Humanitarian Law, principles 4, 6 and 7; 2005 Updated Set of Principles for the

Protection and Promotion of Human Rights through Action to Combat Impunity, definitions and

principle 23

On replacing “constitute” with “relate to”:

The wording “which constitute” seems to be inspired by the Basic Principles and Guidelines on the

Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights

Law and Serious Violations of International Humanitarian Law. The wording “which relate to” is

broader, as it appears to cover situations where the acts and/or omissions of the person against

whom proceedings are commenced do not constitute a most serious crime of concern to the

international community as a whole, but are related to such crime. The proposed wording might

cover situations where there is participation of two or more actors, where one actor’s acts and/or

omissions constitute a most serious crime of concern to the international community as a whole to

which the other actor contributes. It might also cover claims against parent companies of

transnational corporate groups or dominant members of transnational supply chains which had

allegedly negligently failed to prevent such crimes. States may want to clarify the meaning of the

proposed terms and to consider the consequences of their use. References: 2005 Basic Principles

and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International Humanitarian Law,

principles 4, 6 and 7

On providing that measures referred to in this provision shall be adopted by State Parties “in

accordance with their obligations under international law”:

19There appears to be an emerging customary international law rule excluding genocide, war crimes

and crimes against humanity from statutes of limitations, at least for the purposes of criminal

proceedings. Further, there appears to be an emerging tendency in international law to prohibit

statutes of limitation for other gross violations of international human rights law and serious

violations of international humanitarian law, at least for the purposes of criminal proceedings. The

addition of the qualification “in accordance with their obligations under international law” may limit

the obligation under article 10.1 to criminal proceedings for human rights abuses which constitute

genocide, war crimes and crimes against humanity, as well as any crimes to which the custom of

excluding statutes of limitations may extend in the future or which States agree in another treaty

are not subject to statutes of limitation. References: 1968 Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes against Humanity; 1974 European Convention on

the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes; 1992

Declaration on the Protection of All Persons from Enforced Disappearance, article 17; 1994 Inter-

American Convention on Enforced Disappearances of Persons, article VII; 1998 Rome Statute of

the International Criminal Court, articles 5 and 29; 2003 UN Convention against Corruption, article

29; 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of

Gross Violations of International Human Rights Law and Serious Violations of International

Humanitarian Law, principles 4, 6 and 7; 2005 Updated Set of Principles for the Protection and

Promotion of Human Rights through Action to Combat Impunity, definitions and principle 23; 2006

International Convention for the Protection of All Persons from Enforced Disappearance, article 8;

2019 Draft articles on Prevention and Punishment of Crimes Against Humanity, article 6(6)

On providing that the obligation under this provision also extends to “cases of human rights abuses

and violations where the harm may be identifiable only after a long period of time”:

The addition of the wording “cases of human rights abuses and violations where the harm may be

identifiable only after a long period of time” would considerably extend the obligation under article

10, since the obligation to ensure that there are no statutes of limitations would also apply to some

cases that are not the most serious crimes of concern to the international community as a

whole/crimes under international law. States may want to consider the consequences of the use of

the proposed term. Moreover, article 10.2 already addresses such cases by providing that, in cases

not covered by article 10.1, State Parties should adopt measures to ensure that limitation periods

are of a duration that is appropriate in light of the gravity of the human rights abuse and are not

unduly restrictive in light of the context and circumstances, including the length of time needed for

relevant harms to be identified. States may want to consult article 29 of the UN Convention against

Corruption, article 17 of the Declaration on the Protection of All Persons from Enforced

Disappearance, article 8 of the International Convention for the Protection of All Persons from

Enforced Disappearance and principle 23 of the Updated Set of Principles for the Protection and

Promotion of Human Rights through Action to Combat Impunity when drafting article 10.2.

References: 1992 Declaration on the Protection of All Persons from Enforced Disappearance,

article 17; 2003 UN Convention against Corruption, article 29; 2005 Updated Set of Principles for

the Protection and Promotion of Human Rights through Action to Combat Impunity, definitions and

principle 23; 2006 International Convention for the Protection of All Persons from Enforced

Disappearance, article 8.

Regarding article 10.2(a) and (c)

On deleting these sub-paragraphs:

This proposal is to delete article 10.2(a) and (c), but not (b). Article 10.2(a) provides that State

Parties should adopt measures to ensure that limitation periods are “of a duration that is appropriate

in light of the gravity of the human rights abuse”. Article 10.2(b) provides that State Parties should

adopt measures to ensure that limitation periods are not “unduly restrictive in light of the context

and circumstances”. Article 10.2(c) provides that State Parties should adopt measures to ensure

that limitation periods are “determined in a way that respects the rights of victims in accordance

with Article 4”. Given the general wording of article 10.2(b), States may want to assess whether (a)

and (c) add anything of substance. “The gravity of the human rights abuse” is not one of the

circumstances listed by way of example in article 10.2(b), but it could easily be included in this

20provision (for example: “are not unduly restrictive in light of the context and circumstances,

including the gravity of the human rights abuse, the location where the relevant human rights abuse

took place or where the relevant harm was sustained, and the length of time needed for relevant

harms to be identified”). Article 10.2(c) merely refers to the rights established by Article 4, without

adding substantive content.

Regarding article 10.2(b):

On deleting “relevant” before “harm”:

The deletion of the word “relevant” would not alter the substance of article 10.2(b). What constitutes

“the relevant harm” or “the harm” for the purposes of article 10.2(b) in a specific case will, in any

event, be determined by the State agency applying and/or interpreting the rule of jurisdiction in

question.

On deleting “unduly” before “restrictive”:

The word “unduly” indicates that it may be justifiable and proper for statutes of limitations to be

restrictive in some situations, but not others. The term “unduly restrictive” is used in the Basic

Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations

of International Human Rights Law and Serious Violations of International Humanitarian Law.

Nevertheless, States may want to clarify the meaning of the term “unduly” and to consult article 29

of the UN Convention against Corruption, article 17 of the Declaration on the Protection of All

Persons from Enforced Disappearance, article 8 of the International Convention for the Protection

of All Persons from Enforced Disappearance and principles 23 of the Updated Set of Principles for

the Protection and Promotion of Human Rights through Action to Combat Impunity when drafting

article 10.2. References: 1992 Declaration on the Protection of All Persons from Enforced

Disappearance, article 17; 2003 UN Convention against Corruption, article 29; 2005 Basic

Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations

of International Human Rights Law and Serious Violations of International Humanitarian Law,

principle 7; 2005 Updated Set of Principles for the Protection and Promotion of Human Rights

through Action to Combat Impunity, definitions and principle 23; 2006 International Convention for

the Protection of All Persons from Enforced Disappearance, article 8

Regarding article 10.2(c):

On adding “and protects” after “respects”:

States have obligations to respect, protect and fulfil human rights. The obligation to respect means

that States must refrain from interfering with or curtailing the enjoyment of human rights. The

obligation to protect requires States to protect individuals and groups against human rights abuses.

Article 10.2 concerns the application and/or interpretation of statutes of limitations by state

agencies, which relates not only to the obligation to respect the rights of victims, but also to the

obligation to protect victims against human rights abuses by providing effective remedies.

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