22 Feb Analyzing the Definition of ‘Victim’ Under the Third Revised Draft Treaty on Business and Human Rights
[Nidhi Singh works as a Planning, Monitoring and Evaluation Fellow at the Asian Forum for Human Rights and Development (FORUM-ASIA) and as a part-time researcher with the International Platform for Corporate Liability.]
In June 2014, the UN Human Rights Council adopted Resolution 26/9 which decided to establish an international, legally binding instrument on transnational corporations and other business enterprises with respect to human rights. The Resolution and also mandated the Open Ended Intergovernmental Working Group (IGWG) to elaborate such a treaty. Under this, the new third revised draft legally binding instrument on business activities and human rights (third revised draft) was released on 17 August 2021. To ensure effective access to justice and provide a remedy to victims of human rights violations in the context of business activities and to prevent the occurrence or reoccurrence of such violations, the draft treaty has adopted a victim-centric approach in its formulation.
The definition of ‘victim’, however, has been contentious and subject to many textual changes throughout the negotiation process of the treaty. Some delegations reflected that an overly generous formulation and definition is not in line with the principle of legality and that the definition goes beyond the obligations accepted by States in other binding treaties and under customary international law (see pp 72-73). While some delegations all together questioned the necessity of including a definition of ‘victim’ in the treaty, others questioned the extent to which ‘victim’ included immediate family members or dependents (see p 7).
The concerns around the definition of ‘victim’ led to a weaker definition of ‘victim’ in the third revised draft as compared to the previous drafts and other international legal texts. This article seeks to delve further into the dilution and deviations in the definition of ‘victim’ as presented in third revised draft and tries to identify the possible gaps in the preambular and substantive provisions of the draft.
Definition of Victim
The term ‘victim’ is defined under Article 1.1 of the third revised draft and includes any person or group of persons, who have individually or collectively suffered harm that constitute human rights abuse (which is defined under Article 1.2), through acts or omissions in the context of business activities. This definition, to a great extent, followed the wordings and concept as defined under the second revised draft, which considered the definition of victim in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly in 1985.
However, the present definition of ‘victim’ under the third revised draft deviates from the definition \ provided under both the legal texts i.e., the Declaration and the second revised draft. Article 1.1 of the third revised draft further expands the scope of ‘victim’ by stating that victim shall be any person or group of persons ‘irrespective of nationality or place of domicile’ who have suffered harm. This addition to the definition of victim conforms with the other provisions of the draft such as Article 9.1, which gives victims sufficient avenues to access the courts in varied competent jurisdictions without the nationality or domicile of the victim being hindrance in accessing such remedies, particularly in the case of business activities which are of a transnational character.
Another change in the definition of victim under Article 1.1 is that it has removed the specific reference to harms suffered by the victims such as physical or mental injury, emotional suffering, economic loss, or substantial impairment of their human rights. Instead, the third revised draft has modified the definition of ‘human rights abuse’ under Article 1.2 and stated that it ‘shall mean any direct or indirect harm in the context of business activities.’ While mental injury or emotional suffering may fall under the broad term of ‘indirect harm’, the illustrative and non-exhaustive definition of indirect harm strengthens the concept of victim, as highlighted specifically in the definition of victims under other conventions and declarations. The specific mention of injuries apart from physical ones is relevant for States or societies who still do not recognise non-physical injuries in their domestic practices and policies.
The provision also leaves room for a varied interpretation and flexibility by parties when defining victims by replacing the word ‘shall’ with ‘may’ in the following sentence: ‘”victim” shall also include the intermediate family members or dependents of the direct victim”. Moreover, the provision doesn’t identify any circumstances or factors to be taken into account while including or excluding these categories of people from the definition of ‘victim’ which may be done without any sound legal basis.
Exclusion from the Definition of ‘Victim’
The definition of victim under Article 1.1 has excluded those persons from its definition who have suffered harm in intervening to assist victims in distress or to prevent victimization such as human rights defenders (HRDs), civil society organization (CSOs), activists, lawyers, journalists, and trade unions. This means that unless a specific reference is made to this particular category of the victim, the rights and remedies available to victims such as those in Article 4 or 8 are not extended to them. While the preamble recalls the UN Declaration on Human Rights Defenders and emphasizes that civil society actors and human rights defenders have an important and legitimate role in promoting the respect of human rights by business enterprises, and in preventing, mitigating and seeking effective remedy for business-related human rights abuses, it fails to grant the protection and rights needed for carrying out their duties of protecting the victims of human rights abuse.
The third revised draft attempts to provide certain protection to this category of victim under Article 5.2 titled ‘Protection of Victims’ by obliging States to provide adequate and effective measures to guarantee a safe and enabling environment for them to exercise their human rights free from any threat, intimidation, violence or insecurity. The article mentions that the measure should be ‘adequate and effective’ but it does not provide guidance on how these should be implemented and what probable timeline there should be for States to adopt these measures. Furthermore, there is no specific legal liability for harms suffered by actors such as HRDs, CSOs and lawyers.
The person who intervenes to assist victims in distress or to prevent their victimization needs protection too under the third revised draft. There is strong evidence that shows the urgent need for protecting those who intervene to assist victims in distress or to prevent victimization, particularly those who are working in the specific context of human rights abuse such as in conflict areas, or those who are disproportionately affected such as women, indigenous people and members of the LGBTQI+ community. These actors play an important role in enabling the voices of victims of human rights violations and abuses to be heard, acting as an instrument for change on the ground. However, in doing so, they often risk their own lives, and face specific risks and retaliation, which places them in a vulnerable situation (see pp 15-20). The vulnerability towards human rights violations increases if these actors are disproportionately placed such as women HRDs being vulnerable to gender-based attacks and threats. One of the reasons of their vulnerability is that human rights obligations of businesses are not as well articulated as that of States and the regimes providing protection to these vulnerable groups are weak and incompetent compared to the threats and attacks they face (see p 13). The third revised draft should extend the definition of ‘victim’ to these actors, and in doing so, will not only protect and promote their human rights but will also force corporations to respect their human rights and be held liable in case of abuse or violation. For instance, the right of victims under Article 4 and access to remedy under Article 7 would be available for these actors as well, and the due diligence obligations of businesses under Article 6 to prevent and mitigate human rights abuse to these victims would also apply.
The third revised draft has made certain progress with regard to the concept of victims but it certainly is lacking in framing a clear and unambiguous language to determine the scope of human rights abuses required to fulfill the criteria of ‘victim’ under the treaty. To make the treaty more inclusive and broader in its scope, those actors who work to assist victims or to prevent their victimization need to be protected too and afforded similar rights as any other victims under the provisions of the treaty. This can be done by integrating them into the definition and concept of ‘victim’, which will ensure their protection as well as place obligation on businesses as all the rights and remedies available to victims under this treaty would extend to them.
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