September 2018

Some Observations and Opinions on the “Zero” Version of the Draft Treaty on Business and Human Rights (Part II)

[Nicolás Carrillo-Santarelli is a Professor of Law at La Sabana University. This is Part II of a two-part post. The first can be found here.] In part 1 of my analysis of ‘draft zero’ of a treaty on business and human rights I focused on the analysis of whether that version supports in any way the possibility of direct corporate human rights obligations under international law. While I will briefly refer to that aspect in this part as well, it will address other interesting proposals and elements of the draft. Thus, moving on to another noteworthy aspect, it is commendable that the draft indicates in article 3, regarding scope, that the “Convention shall cover all international human rights and those rights recognized under domestic law” (emphasis added). Reference to domestic law can be interpreted as giving prevalence to it when it is more favourable, according to the pro personae principle so developed in the Inter-American Human Rights system. And the allusion to all human rights is a welcome endorsement of Ruggie’s idea, expressed in his “Protect, Respect and Remedy” Framework that “business can affect virtually all internationally recognized rights. Therefore, any limited list will almost certainly miss one or more rights that may turn out to be significant in a particular instance, thereby providing misleading guidance”. Another interesting element is the one concerning jurisdiction, which is of the utmost importance considering that States must protect victims from violations taking place within them. In that regard, article 5 states that States have jurisdiction in regards to acts of omissions within their territory or also have them in connection with natural or legal persons or associations “domiciled” in them, being it considered that businesses –and the other subjects referred to— are domiciled “at the place” where they have their “statutory seat, or central administration, or substantial business interest”, or other relevant connection. Much will depend on whether reference to jurisdiction “vested” in any of the two options –territorial or domicile— are understood as being mandatory or whether the latter is regarded as only conferring optional jurisdiction. Still, any of those alternatives are interesting (one evidently stronger) and permit litigation initiatives when territorial States prove weak or unable to hold corporations accountable despite their best efforts, thus reducing the impunity. Article 6, on the other hand, begins by confirming that “[s]tatutes of limitations shall not apply to violations of international human rights law which constitute crimes under international law”, which echoes ICTY and Inter-American case law, among others, apart from instruments as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity or the very Rome Statute of the International Criminal Court in article 29. Now, quite interestingly, article 6 goes on to add that “Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation, particularly in cases where the violations occurred abroad” (emphasis added). This addition is very important for victims and their representatives, among others in light of the importance of providing remedies with prospects of effectiveness in relation to every violation, not just those which amount to international crimes. Such a pro-victim approach is also present in article 8, on the rights of victims, which include but are “not limited to” (important clarification) “[r]estitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition” and also “[e]nvironmental remediation and ecological restoration where applicable, including covering of expenses for relocation of victims, and replacement of community facilities”, components that reflect contemporary developments in international human rights law, in which the recognition of the protection of environmental and other aspects has increased, as revealed by the recent advisory opinion OC-23/17 of the Inter-American Court of Human Rights. The same article 8 adds that States “shall investigate all human rights violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those natural or legal persons allegedly responsible, in accordance with domestic and international law” (emphasis added). Reference to the observance of domestic and international law may be understood as referring to the conditions of a proper and due process-respectful investigation and action or as to the bases of such investigation and action (or both), which could be understood as further endorsement of the possible implied recognition of existing or future corporate responsibility under international law. Moreover, States are to establish a Fund to provide “legal and financial aid to victims”, something positive considering that resources are often a constraint for victims that may lead to lack of action; and States are also are required to guarantee and provide rights to present claims, access to information, assistance with procedural requirements, and other factors. Yet, controversially, it is indicated that in “no case shall victims be required to reimburse any legal expenses of the other party to the claim”, which, as Carlos López well pointed out, “stands out as potentially controversial since it may be seen as an incentive to frivolous litigation”. That aspect, along with the idea that “States shall not require victims to provide a warranty as a condition for commencing proceedings”, could be taken advantage of to smear the reputation of some corporations when there are no grounds.

Some Observations and Opinions on the “Zero” Version of the Draft Treaty on Business and Human Rights (Part I)

[Nicolás Carrillo-Santarelli is a Professor of Law at La Sabana University. This is Part I of a two-part post.] As developments in the ‘Chevron’ saga have recently confirmed, there is a present imbalance when it comes to the position of corporations vis-à-vis international law. Indeed, businesses benefit from access to remedies and substantive guarantees under the regime of the protection of foreign investors, but apart from the Guiding Principles –which are insufficient insofar their second pillar on corporate responsibility is, in its own words, “distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions”— there is a dearth of developments that indicate that corporations are also liable when they are complicit in or perpetrate human rights abuses. Curiously, some claim that corporations should be consulted on whether obligations of theirs in the field can be regulated, a –to me— baffling idea, considering that human rights ought to be respected by any actor that has the factual power to violate them, and asking an actor whether it ‘accepts’ to respect human rights is actually contrary to logic and article 30 of the Universal Declaration of Human Rights, as I have argued elsewhere. Desiring to fill gaps and strengthen the protection of human dignity from corporations, and facing the opposition of industrialized states, the Human Rights Council adopted a resolution in 2014 in which it was decided “to establish an open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, the mandate of which shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. Finally, the first draft (entitled ‘zero’) of such an instrument has been recently published. To my mind, it has many shortcomings and certain promises, and discussion on its content is important to suggest aspects in regards to which improvements can be made. I will explore such aspects in two consecutive posts, the first of which will largely focus on the notion of direct international human rights obligations of businesses. To my mind, they are important because codes of conduct and other voluntary initiatives, while certainly important insofar as they can impact corporate culture, are not enough, since they fail to grant victims ‘hard law’ entitlements and bases of action. Furthermore, direct obligations are not contrary, but rather complementary to, state obligations, and may actually strengthen their capacity to investigate and respond to human rights abuses. The very fact that the recently-published draft treaty “to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” is expressly referred to as the “zero draft” is a testament to its embryonic character. Still, its very existence, however preliminary and uncertain its content, is a victory in itself, and the publicity of such content permits discussions from civil society and different stakeholders that can provide interesting inputs for negotiators. That being said, as Nadia Bernaz has argued, in some regards aspects as those on direct international obligations are rather conservative and refrain from alternatives that some describe as ‘idealistic’. Even if such were the definite content of a final agreement, that treatment of issues as that of direct obligations or others would not foreclose future –or even simultaneous— developments at all, insofar as business and human rights issues may well be regulated by other sources of international law, customary law and general principles of law included, as Surya Deva and Humberto Cantú have well expressed. Furthermore, the United States Court of Appeals for the Second Circuit acknowledged in the Kiobel v. Royal Dutch Petroleum case that corporate liability may well “gradually ripen [] into a rule of international law” –in spite of considering –wrongly, to my mind— that corporations had no responsibility under lex lata –needless to say, international law can and has addressed non-state actors whenever logical and normative conditions are observed, as doctrines on capacities of such actors have explained. From the very outset of the instrument, at the Preamble –mysteriously under the heading of “Article 1”, which certainly catches attention in addition to a few typos found throughout the text— it is stressed that States have the primary responsibilities and obligations in the field in their territories and jurisdiction, which is a reasonable traditional rationale that coincides with other instruments. Flowing from this logic, also as other instruments that embody the status quo of international human rights law, article 9 indicates that States are under an obligation to adapt their domestic legislation in ways that conform to the purposes of the treaty, in this case in terms of ensuring “in their domestic legislation that all persons with business activities of transnational character within such State Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations”. Additionally, it is noteworthy that, according to article 10, other things States must do is enshrine the potential criminal, civil and administrative responsibility of businesses that violate human rights “in the context of business activities of transnational carácter”. Disappointing as the restriction to transnational activities is –more on that later—, this approach coincides with the archetype of international law dealing with non-state conduct indirectly, through the mediation of required domestic law and State action, which is yet but one of the possible ways in which international law can address the aforementioned conduct –including direct obligations and supervision, as John H. Knox has so well explained. While this approach permits harmonization, from a comparative legal perspective, it still has some shortcomings, such as the fact that, depending on how many States consent to the treaty in the end and how they end up handling the certain margin of implementation of its provisions, the goal of generating a lowest common normative denominator across borders that prevents forum shopping and race to the bottom regulatory dynamics may not be fully and satisfactorily achieved. Being aware that the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights ended up failing in terms of their reception, I cannot help but wonder if the latter’s approach, which recognized primary State duties as well yet conceived them as complementary to obligations of businesses “[w]ithin their respective spheres of activity and influence” was not preferable –and that, perhaps, the same economic interests that may lie behind those Norms’ failure may have exerted some ‘cautious’ influence on the decision refrain from being a more courageous initiative in a legal framework in which corporations do enjoy access to international fora to protect their rights even from State regulatory power –why are some interests attached more importance than the others? And not precisely the ones that should matter the most, in my humble opinion. Being this a ‘zero’ draft, things can improve –hope is not lost… yet.