What the draft treaty's definition of 'victim' means for access to remedy

2/9/19 - Antonella Angelini, Human Rights Institute, Columbia University

Despite some improvements, there are still issues that need to be addressed in the next round of negotiations, writes Antonella Angelini

This commentary is part of the Reflections on the Revised Draft Treaty blog series. Our Debate the Treaty Blog highlights a diverse range of voices from across the globe on the proposed legally binding treaty on business and human rights, which we believe is complementary to the implementation of the UN Guiding Principles.

This post is co-published by the Business and Human Rights Journal Blog as part of its symposium on the revised draft of a binding treaty on business and human rights.

Given how narrowly the 2018 Zero Draft made it through last October’s round of inter-governmental talks, it’s a relief to welcome the new draft business and human rights treaty, released by the open-ended inter-governmental working group on transnational corporations and other business enterprises.

And there is cause for optimism as one delves into the new draft Legally Binding Instrument (DLBI). Many of the key provisions – notably on the scope of the treaty and legal liability – are leaner and rid of some of the language, if not necessarily the conundrums, that had threatened to wreck the entire treaty process last Autumn.

If this is so, and the path is cleared for a less entrenched debate, then the time may be right to look at  the working group’s stated aim to produce a victims-oriented treaty, and the broader issue of access to remedy for those affected by business-related harm.

The two key questions are: Firstly, how is the notion of ‘victim’ construed in order to underpin the entire treaty project, and what does such a construction leave out? And secondly, how does the DLBI balance its state-centric approach with the existence of remedy mechanisms outside the state?

On the notion of ‘victims’

That the DLBI places its raison d’être on victims and their protection emerges more clearly than in the Zero Draft and right from the start: Article 1 opens straightforwardly enough with the expression “victims shall mean”, followed by a definition broken into three parts.

The first part establishes a victim as being any “person or group of persons who individually or collectively suffered or have alleged to have suffered human rights violation or abuse”; the second defines human rights violation or abuse as:  

“The new draft contains enough improvements to justify hope for a fruitful fifth round of negotiations this Autumn”.

While certainly broad, the notion of ‘victims’ as defined seeks to curb the excessive looseness of the Zero Draft. This is evident in the switch from a general notion of “harm” to one specifically in terms of human rights violations or abuses, as well as in the clear identification of states and business enterprises as potential perpetrators.

What is less evident is the potential limiting effect, both material and conceptual, that may derive from speaking of abuses or violations as acts or omissions “in the context of business activities against any person or group of persons”.

To begin with, the term “against” seems unfit to capture the nature of business-related harm, which occurs rather “as a result of” business activities, without this necessarily implying an element of direction – of opposition towards someone.

Also problematic are the expressions “in the context of business activities” and “contractual relationships” and how they play out in the link between prevention and liability. Unlike Article 5, which uses both expressions to define the scope of prevention, Article 6 refers only to contractual relationships as the basis of liability for failure to prevent harm caused by another entity.

Whereas Article 6 seeks to allocate liability in a way that fits with the reality of complex global supply chains, the asymmetry in scope with Article 5 may be problematic. For instance, would there be liability in situations qualifying as “in the context of business activities”, and thus requiring due diligence, such as informal or at least non-contractual agreements with state or non-state security providers?

All these reasons alone may reduce the actual scope of harm as defined in Article 1. More profoundly yet, as Larry Catá Becker explains well, the semantics and syntax of Article 1 tends to elide the agency of individuals and collectives and construe a legal subject at the receiving end, either of harm or remedy.

Moreover, there is little in the new draft to connect the condition of victims, which inevitably entails a degree of passivity, with that of rights-holders. As Gabriela Quijano noted last year, the treaty must also seek to avoid that one becomes a victim in the first place.

Concretely, this means that the treaty should spell out “key human rights, and corresponding duties and protections, of individuals and communities who are at risk of becoming victims of corporate abuse”.

The DLBI currently does contain stronger provisions on the rights of victims, including on financial assistance, notably through the future fund for victims, and access to information. Still, the focus is always ex post, and this is sadly too late for empowering those whose centrality this treaty wishes to establish.

On access to remedy outside the realm of the state 

Regrettably, when it comes to articulating the links between state-based remedy mechanisms and other remedy mechanisms, the DLBI leaves as much to be desired as the Zero Draft.

Article 13 on institutional arrangements (former Article 14) is perhaps one of the key provisions of the treaty that stayed as it was – a stale reproduction of the treaty bodies model. Such a shallow engagement by the Zero Draft was already a missed opportunity.

That the DLBI carries on down the same path is even more lamentable, especially considering the sweeping and facile critiques that Article 14 attracted from some states last year, and how crucial devising a strong institutional machinery for the future treaty is in light of the ongoing review process of the entire treaty bodies system.

If the attitude towards institutional mechanisms for monitoring and implementation suggests poverty of imagination or courage, oversight or outright snub is what hits transnational remedy mechanisms.

Tellingly, the only reference the DLBI makes to non-judicial grievance mechanisms is to state-based ones.

Yet private remedy mechanisms are gaining traction and demonstrating their potential to affect not only the lives of individuals and communities, but also our understanding of the nature of regulatory power outside the state.

For one example, the current rise of enforceable brand mechanisms - the most recent of which came into force a few days ago to combat gender-based violence and harassment in Lesotho’s garment industry - foretells the emergence of compliance and monitoring mechanisms with binding force, rather than “voluntary” as private remedies usually are.

In respect to non-state remedies too, then, the DLBI seems to ignore the need to provide for the links between, on the one hand, its intended goals and vision and, on the other hand, the broader reality of business-related harm.

Though it still falters in tailoring its state-centric approach to the changing forms of access to remedy for business-related harm, the new draft contains enough improvements to justify hope for a fruitful fifth round of negotiations this Autumn.

Antonella Angelini is Practitioner-in-residence and Swiss National Science Postdoctoral Fellow at the Human Rights Institute, Columbia University