Provisions regarding Mutual Legal Assistance, International Cooperation, Consistency with International Law and Institutional Arrangements of the Treaty were subject to robust discussions / States and CSOs discussed the unbalanced nature of investor rights and protections under the ISDS regime and victims' rights / Civil society contributions describing rights violations challenged by China and Brazil on grounds of irrelevance to the mandate.
[ECCJ’s blog on Day 3 of the negotiations can be found here]
The fourth day of UN Treaty negotiations kicked off with a discussion on Article 10 on “Mutual Legal Assistance”, whose provisions are designed to facilitate efficient resolution of cross-border cases between states. On mutual legal assistance, Mexico suggested that these general rules were not needed and that assistance could occur on an ad hoc case-by-case basis.
Professor Surya Deva of the UN Working Group on BHR explained how the lack of effective mutual legal assistance is a massive factor in corporate impunity, and that a claim against a corporation should, amongst others things, enable claimants to obtain information, documentation and evidence from the home country where the company is based.
Egypt argued that the list provided in Article 10.3, giving examples of mutual legal assistance, should be non-exhaustive. Egypt’s representative also noted that the provisions on the promotion of judicial competence within states for the resolution of such cases should use gender-sensitive language, which was welcomed by some states such as Namibia and also by CSOs.
China noted that it has already more than 100 bilateral treaties on Mutual Legal Assistance so these would need to be considered, especially as concerns precedence-related issues (e.g. which would take precedence in the event of discrepancy?). The state also raised the point that criminal and civil proceedings were not distinguished and this caused confusing which could be easily clarified. This aspect was supported by Namibia and Gambia, who spoke for the first time also congratulating the constructive development of the process.
Provisions establishing the recognition of foreign judgements (Article 10.9) were subject to some controversy on the basis of state sovereignty, especially by the Russian Federation. However, there are exceptions in the provisions for when there has been a clear breach of due process nonetheless the delegate maintained these grounds were far too narrow. Similarly, concerning recognition of judgements, Uruguay provided the valuable input that a recent instrument on the topic had just be concluded after 30 years of negotiations in the Hague (recently open for signature), submitting that consideration be had to that document.
In terms of extraterritoriality and the related concerns raised, Professor Deva noted that at this stage, this is a 'necessary' evil requiring to be addressed in terms of 'how' to implement not 'if'. Again, EU rules on private international rules were referred to as evidence that such provisions are clearly achievable in practice.
Honduras highlighted that provisions on International Cooperation (Article 11) were essential to the Treaty’s functioning in practice and that states should consider going further with the creation of a fund to facilitate this objective. Brazil also favoured strengthening this provision on international cooperation in BHR cases. Cuba made the point that the wording of other international conventions on facilitating international cooperation such as the OECD Anti-Bribery Convention which had 'proven their worth', should here be considered and taken as inspiration. Namibia raised the potential inclusion of sections, or at least reference to Alternative Dispute Resolution, and noted a recently concluded United Nations Convention on International Settlement Agreements Resulting from Mediation – also known as the Singapore Convention on Mediation.
It was proposed that Article 12 'Consistency with International Law' be changed to “relation with other international instruments” in order to encompass what it seeks, namely (but not exclusively) bilateral and multilateral trade and investment treaties.
This provision provoked serious consideration of the harmful effects of Investor-State Dispute Mechanisms for human rights, providing for a comparably preferential access to justice mechanism for investors.
Dr Joe Zhang from the International Institute for Sustainable Development (IISD) explained this most clearly and said that Article 12 was a big improvement toward balancing the rights of investors with rights of victims under international instruments. At the same time, Dr Zhang noted that Article 12 also protects the policy space of governments to regulate in the public interest in order to fulfil their state duties to protect and realize human rights.
Numerous CSOs’ submissions highlighted the need to clarify the primacy of international human rights law over the laws governing Investor-State Dispute Settlements (ISDS) and that it must be considered in ISDS tribunals, echoing recent concerns expressed from numerous UN bodies on the issue. Switzerland asked for clarification whether these provisions go beyond what is required by the UNGPs, which Professor Deva opined it did not.
The second session of the day concerned matters of Institutional Arrangements (Article13), namely the establishment of a Treaty over-sight 'Committee', 'Conference of State Parties' and an international fund for victims designed to cover their legal fees not for compensation. Discussions on the potential Treaty Committee provoked much reference to the current failings of the UN Treaty body system, namely untimely reporting and questionable effectiveness in monitoring treaty implementation and effectiveness. Nonetheless, as Professor Carlos Correa from The South Centre made clear, such bodies effectively create a space and reference point for the treaty and can still be used to good effect, such as through raising awareness and incentivising compliance. The follow-up on the Treaty lies ultimately with states and how committed states are.
With regards to a fund, Professor Correa noted that such an international fund exists for victims of torture already. On the make-up of the committee, one CSO suggestion was that it should include at least one indigenous representative, as indigenous peoples are perhaps those most impacted and harmed by BHR violations globally, citing the corporate destruction of natural environmental, particularly extractivism.
Professor Correa as well as the Chinese delegate both noted that there is currently a review of the UN Treaty body system underway and China suggested waiting for that review process to be finalised. Mexico also submitted the negotiations at this stage should be used to cover the other more substantive parts and provisions in the Treaty from previous days, and that such discussions seemed premature. It also noted that the time could be put to better use in developing the more significant provisions on prevention and liability.
Dr Jelena Aparac, member of the UN WG on the use of mercenaries, noted the Article 13 was far too long. She proposed rather that the Committee contain a regional expert from each region. In addition, Dr Aparac argued for a communications capacity of the body to issue normative communications not just to states but also to corporations.
The overwhelming submissions from civil society was that the Committee or any such oversight body need have the capacity to receive complaints on cases of BHR violations and abuse at a minimum. Opinions and comments varied on whether the body should be able to adjudicate on such claims, for which there was notable support
, as well as for an enhanced capability to investigate cases and allegations.
Dr Jelena Aparac supported this suggestion by reference, once again, to the Nuremberg trials and the ability of that forum to investigate and bring to light the role of corporate actors in grave human rights abuses. She pleased with the states present to consider the history on this matter from over 70 years ago, and to be bold in moving the collaborative state work in this area forward. There were also renewed calls for a stand-alone international tribunal empowered to adjudicate on BHR cases.
The Russian Federation delegate questioned the UN budget for such a fund, as well as the interpretative capacity of such a body as potentially infringing on State sovereignty. Questions over the fund were raised by both Ecuador and China: the former asked for clarification on how it would be administered, whereas the latter inquired whether this would create a new commitment on states by China.
During the day's proceedings both China and Brazil asked for two forceful points of order in response to submissions from civil society highlighting human rights violations in those states. The Chairperson-rapporteur accepted these points of order considering that the CSO submissions were not related closely enough to the content under discussion, namely the draft Articles. This provoked concerns over freedom of expression from civil society.
[This blog series on the UN treaty is supported by the Rosa Luxemburg foundation].