[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.
