Informal consultation on the UN Binding treaty 14th of June 2018
Statement of the Global Campaign
Thank you Mr Ambassador for giving me the floor,
About the jurisdiction, it is clear that the main reason why we need this Treaty is precisely the difficulty to hold corporations accountable. Because of their transnational structure and complex schemes they manage to avoid liability and national jurisdictions, and evade their legal human rights responsibilities. Most States are unable to hold transnational corporations accountable for their actions, especially when the corporation activities are in a different country than their headquarters. It′s even harder to guarantee accountability when these activities are carried out by their subsidiaries, subcontractors or other companies under their control.
In order to overcome these barriers, it is imperative that national Courts are allowed to hear claims arising from corporate conducts undertaken abroad. In order to avoid impunity, victims and affected communities shall be guaranteed access to courts both in their own courtyard in the home state of the corporation accused of the violations. In case of failure of domestic complaint mechanisms, victims shall be able to proceed before an international jurisdiction. To this regard, the Global Campaign in its own Treaty is proposing the institution of an international Court that would guarantee the implementation of the obligations set out by the future Treaty. This Court shall have the competence to receive, investigate and judge complaints against TNCs for violations and abuses committed against communities in different countries along the supply chain of the same corporation.
In addition, it would also be important to consider the opportunity to include a “forum necessitatis” that can be used as an option in circumstances of denial of justice, allowing a court to declare itself capable of hearing a case when there is no available forum. This would contribute to avoid the “forum non conveniens”, which is a great contribution for the TNC′s impunity.
About the questions on liability, this is indeed one of the core issues of this process: without the establishment of a clear and broad liability capable to tackle all the aspects of corporate impunity, there won’t be an effective and complete access to justice for the victims. In the Global Campaign’s Treaty Proposal, as well as in the Elements′ document submitted by the Presidency of this WG, it is therefore proposed that domestic laws of State parties shall subject both TNCs and their managers to penal, civil and administrative liability depending on the case. Such liability shall exist regardless of whether they acted as perpetrators or accomplices of the human rights violations, and, most importantly, shall extend to all links of the supply chain of the TNC in question. Moreover, the States Parties shall establish sanctions, including cancellation of contracts and annulment of licenses to operate. In addition, the proposed international court should be allowed to order the dissolution of the TNC concerned, and oblige the TNC to cover of the fees of the process. Moreover, it is imperative that States Parties oblige TNCs to declare their existence, its parent company and subsidiaries, its own subsidiaries and all members of its supply chain, in order to facilitate the determination of liability of all corporations that individually or collectively violate human rights.
About the questions on preventive measures, we think that these are also essential and we welcome the fact that the Elements paper were partially inspired by the French law on duty of vigilance. Such vigilance plans will be totally useless if they are not attached to a legal obligation to implement them effectively, and to the possibility to incur the liability of the company like in the French law. Without any liability attached to preventive measures, they risk to be reduced to mere reporting measures.
Finally, we invite you to consult the Treaty proposal presented by the Global Campaign, which is the fruit of a major collaborative undertaking built on a broad consultative process among affected communities, social movements and civil society organizations. This is a document with useful information and proposals addressing the many challenges related to the subject of this process.
The Global Campaign’s Treaty proposal
https://www.stopcorporateimpunity.org/wp-content/uploads/2017/10/Treaty_draft-EN1.pdf
