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Day 3: The 'Heart of the Treaty' coming to life as operative provisions begin to take shape, albeit at a snail's pace

Author: ECCJ (Belgium), Published on: 17 October 2019

The day started with the Chairperson-Rapporteur introducing the new and revised provisions as having undergone significant revision since the last draft...

The liability provisions contain both civil and criminal measures, largely supported by most experts, states and CSOs who spoke to the topic. However, a common reflection was the need for a clear delineation between civil and criminal provisions. In the current draft those are either blended or presented in an ambiguous way, creating confusion and legal uncertainty.

On the provisions related to liability... of businesses for criminal offences, state reactions were both welcoming and sceptical to the proposed list  (provided in Article 6.7) of crimes for which businesses could be held liable...

Afghanistan, Mexico, Namibia, Ecuador and Eqypt submitted that environmental harms should also be added to this list; and they advocated to keep the list open...

Numerous experts and states, such as Namibia and France, recognised that prevention (HRDD) and liability should be connected. At the same time, it was noted that it is not yet clear enough how this is to be done. This led to discussion that two types of liability should be provided for: on the one hand there could be liability for failure to undertake HRDD (this is likely to be framed in administrative law) and liability for causing harm (framed in civil or tort law)...

Suspension of the statute of limitation provisions elicited negative and positive responses, the former in acknowledgement of the fact that such cases take significant time to gather witnesses, elicit funding, and gather evidence etc

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