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Day 3: As participation drops, some states attempt to water down key provisions

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The third day of UN Treaty negotiations started with a dramatic drop in participation by states, while civil society from around the world tuned in to observe and contribute to the debates constructively. The discussions covered everything from reparations to victims to the statute of limitations with some states, namely China, Russia and Brazil, regularly attempting to weaken key provisions of the draft text.

[ECCJ’s blog on Day 2 of the negotiations can be found here]

Scepticism regarding reparations to victims of human rights abuses came early on from both Brazil and China. Brazil requested further information on international standards, while China simply denied that such standards existed in the field of human rights violations, and suggested that there is no reason why states should apply different compensation standards from those foreseen for tort damages. Interestingly, Panama proposed adding an age perspective to the provision, in addition to gender.

Regarding the provision on liability for harm caused or contributed to by controlled entities (article 8.7), states like Egypt welcomed the draft text, while others wanted to see the term ‘control’ further clarified. Mexico recommended deleting the reference to factual control in favour of legal control. China firmly rejected the paragraph altogether on the grounds that it violates the fundamental principle of the independence of corporate personality, meaning an enterprise can only bear legal responsibility for its own behaviour.

States like Ecuador welcomed the new wording on ‘causing’ or ‘contributing to’ human rights abuses (article 8.4 and 8.7), as it defines when legal liability should apply in more precise language. However, Brazil shared its doubts, saying that it is already necessary to demonstrate a clear causal nexus between the harm and the activity of the enterprise to be held accountable.

The current version of the draft text establishes that human rights due diligence shall not automatically absolve businesses from liability, but it also states that liability should be decided on after an examination of compliance with applicable human rights due diligence standards (article 8.8). A variety of opinions were expressed, from full support by Egypt to calls to strengthen it by Mexico and Palestine to outright disagreement by Indonesia and China. The former described it as too restrictive on how competent authorities should determine liability, while the later argued that it would disincentive human rights due diligence compliance.

A significant chunk of the discussion revolved around criminal or functionally equivalent liability of legal persons for human rights abuses (article 8.4 and 8.9). Brazil and Russia fiercely opposed the idea of holding legal persons criminally responsible under the treaty. Moreover, Russia, Egypt, China, and Panama raised concerns that their national legislation does not provide for this.

Palestine, however, offered a more constructive response. It recommended strengthening this provision by explicitly providing for criminal liability in cases of war crimes, crimes against humanity and other grave breaches of international human rights and humanitarian law. It even submitted specific penalties that companies could face should they be prosecuted, such as the withdrawal of licenses, the termination of contracts or projects, or the prohibition for business.

Regarding the notion of functionally equivalent liability, Mexico and Egypt suggested replacing the term with administrative liability.

The EU’s second clarifying question came in the afternoon session on adjudicative jurisdiction (article 9), whose provisions are designed to establish where victims can bring a claim against those conducting business activities of a transnational character.

Unsurprisingly, the article provoked much discussion. Brazil, Russia and China sided with the positions of the International Organisation of Employers and the United States Council for International Businesses, interpreting the explicit prohibition of forum non conveniens as an invitation for ‘forum shopping’ and the broad approach as leading towards a de facto universal jurisdiction, both of which would, according to the three delegations, result in jurisdictional uncertainties for business and possible breaches of the principle of sovereignty. Panama suggested including a definition of the treatment that courts must give to cases, which are simultaneously under legal study in different jurisdictions.

Much support for the article’s broad approach was voiced by the Philippines, Namibia, Ecuador, Chile and Egypt and the vast majority of civil society, given that the current formulation seeks to reduce obstacles for access to justice and remedy for victims who often face huge barriers in getting their case heard by a relevant court.

Several states submitted a provision to article 9.1, which would establish the court of the state, which the victim is a national of or is domiciled in, as one of the courts that would be able to exercise jurisdiction over cases covered by the Treaty. This would ensure victims greater access to courts, especially since crossing state borders to file a case would represent an additional obstacle for victims.

Talks proceeded constructively on the principle of forum necessitatis (article 9.5) with some delegates proposing to strengthen the language by adding the phrase, “In order to enhance access to justice,” at the beginning of the paragraph or to explicitly include a reference to the principle of forum necessitatis. They also submitted the inclusion of the principles of res judicata, or litis pendentia in case of parallel proceedings.

In terms of extraterritoriality, states requested a clear distinction between administrative, civil and criminal extraterritoriality, while others proposed separating these provisions. In this new formulation, article 9 would address only civil and administrative cases, while a separate article would deal specifically with criminal cases based on existing human rights instruments, such as the Convention against Torture and the International Convention for the Protection of All Persons against Enforced Disappearance.

Russia staunchly opposed the suspension of the statute of limitations provisions for a broad spectrum of cases but was in favour of removing them for the most serious international crimes, such as genocide and war crimes. Brazil even stated that it is not convinced that the article is needed at all. China agreed and argued that the text in its present form will be highly controversial and difficult to implement. However, Panama and Namibia argued that the provision should apply to all international law violations. The question of what constitutes a reasonable time period for filing a lawsuit was also raised, especially in the contexts of violations occurring in another state or when harm is only identifiable after a long period of time.

During the debate on article 11, Russia, China and Brazil were in cahoots again, echoing earlier statements regarding the arbitrary risk of “forum shopping” by the victims. China, for example, argued that the article fails to differentiate between civil and criminal litigation. In stark contrast, other participating states and civil society generally welcomed the provision.