Victims’ Rights under the Second Revised Draft Treaty on Business & Human Rights

BY Maysa Zorob, BUSINESS & HUMAN RIGHTS RESOURCE CENTRE

September 10, 2020

The long-awaited Second Revised Draft Treaty on Business and Human Rights was published on 6 August 2020, bringing high hopes for accountability in cases of corporate human rights abuses (the Resource Centre’s unofficial summary of the latest draft is available here). How does this draft compare to the 2019 Revised Draft and what does it mean for the rights and protection of victims of corporate abuse?  

The 2020 Draft includes some key improvements relating to the rights of victims (Article 4), the protection of victims (Article 5), and access to remedy (Article 7) as well as other relevant provisions on legal liability and adjudicative jurisdiction (Articles 8 and 9 respectively). This brief analysis focuses on the provisions relating to the scope, jurisdiction and applicable legal framework, as well as broader access to justice and remedy considerations. Also worth noting in this context – albeit beyond the scope of this commentary - are provisions on the protection of Human Rights Defenders, which are increasingly under threat around the globe, and on mandatory human rights due diligence (mHRDD) measures, which in the new draft must integrate a gender perspective in all stages of the process, include free prior and informed consent by indigenous peoples and provide sanctions for non-compliance. 

Scope, Jurisdiction and Choice of Laws 

Chief amongst the improvements of the 2020 Draft are several provisions that increase the judicial forums in which victims can hold companies accountable for their negative human rights impacts, as well as the kinds of companies that may be held to account and the legal frameworks that may be used (Articles 7 and 9).  

For example, Article 7.5 prevents States from using the infamous ‘forum non conveniens’ doctrine “to dismiss legitimate judicial proceedings brought by victims.” This doctrine, which allows courts to dismiss a case where another court is better suited to hear the case, is too often used by transnational companies to get cases dismissed in their home States by arguing that they should be heard in the country where the abuse took place, even if courts in those host states lack the independence or resources needed to provide victims with effective remedy. As noted by Doug Cassel in his recent commentary, rejecting the doctrine of forum non conveniens is consistent with EU case law. In its 2005 ruling in Osuwu v Jackson and Others, the Court of Justice of the European Union ruled that English courts could not decline jurisdiction on the basis of forum non conveniens, except by express provision in the Brussels Convention.This approach also aligns with recent developments in other jurisdictions, such as Canada. For example, in the Nevsun Resources v Araya case for forced labour in Eritrea, the lower courts denied Nevsun’s defence of forum non conveniens, finding that the plaintiffs were unlikely to see their claim succeed in Eritrean courts. 

Furthermore, the 2020 Draft allows victims – under certain conditions - to bring claims in other States if they would otherwise not receive a fair trial (forum necessitatis doctrine, Article 9.5), and to request that their claim be governed by the law of the State where the abuse took place or where the alleged perpetrator is domiciled (Article 11.2), thus enabling victims to choose whichever legal framework is more favourable to their claims. 

Finally, the Draft Treaty also enables victims to sue both the transnational company as well as their foreign subsidiary or business partner in their home states provided that the two claims against the parties are “closely connected” (Article 9.4). Importantly, the Draft Treaty covers not only “contractual relationships” but also “business relationships,” thereby expanding its scope and jurisdiction not just to transnational companies but also to other business partners such as suppliers, agents or affiliates (Art. 1.5). 

Rights of Groups  

The Draft Treaty also introduces new language to guarantee the right of victims to pursue their claims collectively as a group, including through class actions (Article 4.2(d)). As noted by Richard Meeran, this right “is crucial in enabling mass claims to be litigated in a cost-effective manner, which protects victims’ claims against the effect of domestic statutes of limitations and which is financially viable for victims and their lawyers.” 

Reversal of Burden of Proof 

Article 7.6 of the 2020 Draft provides that States may “consistent with the rule of law requirements, enact or amend laws to reverse the burden of proof in appropriate cases to fulfil the victims´ right to access to remedy.” This provision resembles that of the 2019 Draft, with two key differences. For one the 2020 Draft no longer subjects the reversal of burden of proof to domestic law. This is an improvement as States can no longer render this provision meaningless by refusing reversal of the burden of proof under domestic law. Secondly, the reversal of burden of proof is now subject to rule of law requirements. This addition, may alleviate the concerns raised by some in relation to the presumption of innocence, an internationally recognized legal doctrine, which establishes the right to be presumed innocent until proven guilty. 

Human rights advocates around the globe rightly insist that reversing the burden of proof in the Binding Treaty is a pre-requisite for correcting the power imbalance between affected communities on the one hand and states/businesses on the other. It is an acknowledgment that the kind of proof required in legal proceedings is often difficult if not impossible for communities to provide (they typically don’t have funds, access to information or social capital to obtain such evidence).  

With that said, for this provision to be actionable, it must be more specific. Future iterations of the Draft Treaty should include rebuttable presumptions, such as the presumption of effective control by the parent company when it has direct or indirect ownership or controlling interest over the entities part of a group, as FIDH compellingly argued in its Preliminary comment to the Revised Draft. 

Access to Justice & Remedy  

The 2020 Draft, like previous drafts, lacks remedies that have a preventative dimension. Instead, the remedies listed in Art. 4 on the Rights of Victims are based only on ex post judicial action for individuals or groups who have already suffered harm and fail to include victims’ rights to precautionary measures. As noted by the Colombian National NGO Roundtable on Business and Human Rights and FIDH, this preventative dimension is a critical element in ensuring that victims’ human rights are respected and is closely linked to the provisions in Article 6 of the 2020 Draft and global movements towards mHRDD legislation.   

Moreover, the Draft Treaty fails to stipulate victims’ rights to reparations and to precautionary measures. The explicit recognition of reparations in the list of remedies is critical to accommodate differences in national legislative frameworks, which may distinguish between the notion of “reparation” on the one hand and other forms of remedies such as restitution or compensation on the other. The only reference made to reparations is in relation to liability (Article 8), but it must also be acknowledged in the rights of victims under Article 4. 

The Way Forward  

These critical changes notwithstanding, there remains room for improving the Binding Treaty to deliver real protections to victims of corporate abuse and ensure effective redress when things go wrong. In addition to addressing the above shortcomings, several provisions require further clarification and strengthening, such as those relating to the reversal of burden of proof, the extra-territorial obligation of states and the supremacy of the treaty over domestic law in key areas (including but not limited to statutes of limitations). The upcoming 6th Session of the Intergovernmental Working Group in October presents a key opportunity to address these concerns in a manner that reinforces the complementarity of the Treaty process with the UN Guiding Principles on Business and Human Rights as well as national movements towards mHRDD legislation around the globe.