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Opinion

1 Jun 2015

Author:
Doug Cassel, Notre Dame Law School

Report from Intl. Commission of Jurists workshop on proposed treaty on business & human rights

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The UN Intergovernmental Working Group created to draft an “international legally binding instrument” on business and human rights will convene in Geneva July 6-10.  In preparation, the International Commission of Jurists (ICJ) organized a workshop at the Graduate Institute of International and Development Studies in Geneva on May 27.  About 40 diplomats, NGO representatives and UN staff attended.

ICJ Commissioner Marco Sassoli presided over a panel on the scope of the proposed treaty.  Dr. Carlos Lopez, ICJ Senior Legal Adviser and principal author of the valuable ICJ study,  Needs and Options for a New International Instrument in the Field of Business and Human Rights (2014), focused on whether a treaty should address, not only transnational, but also national business enterprises.  He noted that UN Human Rights Council resolutions consistently cover “transnational corporations and other business enterprises,” as do the UN Guiding Principles on Business and Human Rights. 

This pattern was followed by the June 2014 Council resolution initiating the treaty process (res. 26/9).  Its title and first operative paragraph use the same terminology.  But a footnote to its preamble defines “other business enterprises” as only those with a “transnational character,” and excludes “local businesses registered in terms of relevant domestic law.”  However, as Dr. Lopez pointed out, under international law, preambles are not controlling, but merely assist in interpretation.  Hence, he concluded, the mandate of the Intergovernmental Working Group is not limited to transnational corporations, but covers national business enterprises as well.

Professor Eduardo Toledo of Argentina, whose forthcoming doctoral thesis at the Sorbonne is on attribution of criminal responsibility to groups under the ICC Statute, spoke on how the proposed treaty might address theories of attribution of criminal liability to business corporations.  The issue is complicated by the diversity of State practice.  The domestic laws of some States (especially common law jurisdictions) allow criminal prosecutions of corporations, while others (principally civil law jurisdictions) do not.  Even among States which allow corporations to be prosecuted, the theories for doing so vary.

To the extent a treaty requires States to prosecute companies domestically, this latter variance may be acceptable: each State could prosecute according to its own theories of criminal attribution.  (Other solutions would be required for States which do not allow criminal prosecution of corporations.)  But if international criminal prosecution is authorized by a treaty, negotiators may need to decide what theory or theories of attribution will be used.  Professor Toledo outlined three broad theories (common law, Dutch, and mixed) which might be considered.

The second panel was moderated by ICJ Commissioner Andrew Clapham.  The present writer – Professor Doug Cassel of Notre Dame Law School in the US – summarized a forthcoming White Paper which he and Professor Anita Ramasastry have prepared for the American Bar Association’s Center for Human Rights and the Law Society of England and Wales.  (The Paper represents only the views of its authors, not necessarily those of the organizations.)   Neutral by design on whether or not there should be a treaty or, if so, what kind, the Paper reviews the options for a treaty.  It outlines a wide variety, ranging from a treaty merely requiring public reporting, to one including civil and criminal remedies at the national and international levels.  It notes that there already exist templates, in widely accepted international treaties in the fields of human rights, anti-corruption and environmental law, for the range of forms a treaty on business and human rights might take. 

The Paper also summarizes several cross-cutting issues that may need to be addressed, whatever form a treaty might take: what companies to cover, what rights to protect, the law governing civil remedies, extraterritorial application, parent company responsibility for subsidiaries, direct application of the treaty to companies or only to States, and the responsibilities of lawyers and others who advise companies.

The final panelist was Mrs. Kinda Mohamadieh, a Research Associate at the South Centre who specializes in international trade and investment.  Her premise was that the main objective of a treaty is to redress gaps and imbalances in the international legal order, in order to allow victims of corporate human rights abuses access to a remedy. 

In that light she reviewed four topics.  First, she discussed arguments in support of a treaty’s imposition of obligations directly on business and not only on States.  Second, she discussed two “cross-cutting issues.”  One is the risk of limiting a treaty to cover only “gross violations” of human rights, which are not clearly defined in international law, and which might be narrowly interpreted to exclude economic, social and cultural rights.  The other is whether the treaty should contemplate extraterritorial jurisdiction because, in order to hold companies accountable, “the legal structure must match the economic structure.”

Her third topic was whether complaints should be heard only by a non-judicial body, like those under existing UN human rights treaties, or whether the treaty should establish a judicial body empowered to make legally binding determinations of liability and remedies.  Fourth and finally, in addressing how judicial remedies ordered by national courts might be enforced against corporate assets located outside a State’s jurisdiction, she discussed the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards as an example for treaty drafters to consider.

Governments negotiating a treaty on business and human rights will face many challenging legal and policy issues.  The ICJ workshop exemplifies efforts by civil society to encourage a well-informed drafting process.

Disclaimer: This is a summary of the workshop by a participant and not a piece endorsed by the event’s organisers.