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"Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era"--Video Recording of Launch Event Now Available

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The video recording of the launch event for Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era, which took place 12 November 2018 at Penn State is now available. The video recording may be accessed HERE with thanks to Penn State Law and the School of International Affairs for their support. The recording is about an hour long. 


Highlights from the discussion included the fundamental role of ideology in the development of political and economic frameworks, and its consequences for the development of rule or law based institutions; Cuban Leninism; the role of the Communist Party and reform since 2011; the current state of Cuban political theory and its constraints fro political and legal development; political ideology and its expression as economic policy; and the development of Cuban external relations around sovereign finance. This more general discussion informed more specific examination of constitutional change and national plebiscite; Caribbean Socialist Regional Trade; the state of Cuba-U.S. Relations, the Embargo and targeted sanctions; the development of the Cuban private sector in the shadow of ideology; the modalities of transposition of political policy to law; and Cuban engagement with global expectations in economic activity.

PowerPoints may be accessed HERE.

More about the book HERE.

11-Introducing "Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era" ("The Challenges of Regulatory Reform")

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I reported the publication of Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press 2018; ISBN: 978-1-949943-00-9 (pbk); I SBN: 978-1-949943-01-6 (ebk)) (here). Cuba’s Caribbean Marxism is the first offering through Little Sir Press, a self-publishing collective that is a new project in broader knowledge dissemination of the Coalition for Peace & Ethics (more about that project here). Join us! 


https://images-na.ssl-images-amazon.com/images/G/01/SellerCentral/legal/amazon-logo_black.pngCuba’s Caribbean Marxism eBook may be accessed through these sites:


  https://www.kobo.com/us/en/ebook/cuba-s-caribbean-marxism-essays-on-ideology-government-society-and-economy-in-the-post-fidel-castro-era   


Paperback ordering information to follow. Individual Chapters also may be ordered in pdf format.

I promised that over the course of future posts I would be introducing readers to the book. This post continues with an introduction to Chapter 9 ("The Challenges of Regulatory Reform"),  which follows below  Other posts in this series may be accessed here.



The Challenges of Regulatory Reform: The Example of Labor Cooperative Regulations  
      On July 1, 2013, the official organ of the Cuban Communist Party announced the approval of 124 cooperatives to operate in the non-agricultural sector (Puig Meneses and Martínez Hernández 2013). Grisel Tristá Arbesú, head of the Business Improvement Group of the Permanent Commission for Implementation and Development (Grupo de Perfeccionamiento Empresarial de la Comisión Permanente para la Implementación y Desarrollo), was quoted as explaining that this push to open a small area for private economic activity focused on activities in which state enterprises had not been efficient and which were not critical to the national economy (Ibid.). The majority of the first batch of state approved cooperatives represents efforts to devolve operation of non-essential state enterprises (Ibid.); only twelve cooperatives were approved from the non-state sector (Ibid.). And indeed, it was made clear that the object of these efforts was not to expand a private sector or to introduce a market economy, but rather to devolve administration of economic activity from the ministries to non-governmental workers (Ibid., “Ellas están llamadas a ocupar un lugar importante en la economía del país, aunque el papel principal lo continuará teniendo la empresa estatal socialista,”enfatizó. Las cooperativas no son resultado de un proceso de privatización — aclaró — , sino que administrarán la propiedad estatal que es, en definitiva, de todo el pueblo” [“‘These have been called upon to serve an important role in the national economy, though socialist state enterprises will continue to maintain their principal role in the economy,‘ he emphasized.  Cooperatives are not the product of privatization, he clarified, rather they will administer state property which is and remains the property of the nation”](quoting Rubén Toledo Díaz, jefe de grupo en la Comisión Permanente para la Implementación y Desarrollo.)” ).   
         The emergence of the cooperative marks a multi-year effort to reform the Cuban economy while preserving the fundamental character of the Cuban political economy characterized by strong central planning and state control of productive capital. Indeed, the announcement was careful to remind readers that though the operating premise of the new regime was grounded in markets to determine demand and prices, the state retained unconstrained authority to intervene to set prices (Puig Meneses and Martínez Hernández 2013). That sets up the fundamental contradiction of the reforms. On the one hand, there is an acknowledgement of the utility of the markets as efficient regulators of economic activity.  On the other hand, these efficiencies must be managed under the fundamental economic principle that characterizes markets as inherently corrupt and corrupting since its methods could not be entirely detached form the ideologies of capitalism. Reconciling this contradiction defines the challenge of regulatory reform that is the object of this chapter.  The way that political ideology is translated into specific legal structures in the context of reform illustrates the limits of reform and the difficulties of translating the two contradictory trajectories of that reform into coherent regulatory structures.    
The road to this point has neither been easy or straightforward. Even a change at the margin of economic activity of the nation—the creation of a small, though tightly regulated space within which individuals may provide goods and services without direct state direction or control—required a substantial amount of debate within the Cuban Communist Party (the “PCC”). That debate, in turn, exposed the contradictions of Cuban Marxist-Leninist political economy—one with the objective of creating an appropriate role for the control and exploitation of capital consistent with Marxist principles but which acknowledge that the Soviet experiment, turning the state into a monopoly capitalist and the Communist Party as its operator, has not produced the movement toward socialism intended after 1959. To complicate the debate, Cuban Communists have rejected the approach of Chinese and Vietnamese Communist Parties, which have moved to more indirect control of capital and markets as part of their development of Marxist economic principles since the 1970s. As a consequence, the range of flexibility left to the PCC is quite limited.
Central to the debates, and one of the most difficult issues facing Cuba today, is the problem of structuring aggregations of economic activities (Backer 2013). In most states, individuals are understood to be able to aggregate capital in corporate or partnership form and to aggregate productive activity otherwise through co-operatives. But Cuba’s version of Marxism Leninism has complicated that structure, producing a political culture whose ideology views formal aggregations of individuals with some suspicion, as a challenge to the paramount role of the PCC. More importantly, the current economic system is based on the premise that only the state, under the leadership of the PCC, may own and direct the use of productive capital for economic production. These issues are bound up in recent efforts by the PCC to change the economic model that has been substantially unquestioned since the early 1960s, without changing, in any significant respect, the premises of that organizational model. Thus while it has become clear that aggregating productive activity is critical to expanding economic activity, and for aiding in Cuban economic growth, as an economic matter, the forms of permissible aggregation remains contested, as a political matter.
This Chapter first reviews the new conceptual and regulatory structures for cooperatives. This requires understanding the Communist Party line expressed after 2011through the Lineamientos de la Política Económica y Social del Partido y la Revolución [Guidelines on the Political and Social Policies of the Party and the Revolution] (Communist Party of Cuba 2011, hereafter Lineamientos). The development of the cooperative initiative was undertaken under the guidance of the Lineamientos. The Chapter then focuses specifically on the form of the economic cooperative, the only type of economic aggregation that the Cuban state has tentatively opened to individuals, examining in some detail cooperative regulations promulgated in December 2012. The cooperative form represented a core advance in the project of reform of the Cuban economic model and the lynchpin for augmenting the private sector as a complement to the state run centrally planned economy.  And yet at the same time, that reform was viewed, even in law, with some trepidation.  The cooperative was characterized from the first not as a strongly supported step in a coherent path toward reform, but rather as an “experiment” targeted toward the solution of economic development at the local level (Lineamientos¶ 15). These approaches were then effectively conformed in the structures of the principles of political and economic organization adopted in the wake of the 7th PCC Congress in 2017 ((Communist Party of Cuba 2016); discussed in Chapter 5) and have been embedded in the proposed constitutional reforms of 2018 (discussed in Chapter 12).
The Chapter then suggests structural issues and consequences of the new regulations within the context of the larger issues constraining Cuban economic reform. It concludes that, like China before it in the 1970s, the issue for Cuban Marxism is not how to resolve the issue of capital, it is instead the question of labor under Marxism as something other than a commodified form of useful capital. Successful resolution of this issue will test the Cuban legitimacy of the current political economy of the state. Cuba has sought to nod in the direction of labor through its focus on labor cooperatives. But it remains very much committed to the primacy of capital. Until that contradiction of Cuban Marxism is solved, the best one will be able to hope for are small steps toward the amelioration of the subordination of labor in a system that remains very much grounded in the primacy of capital. Even then, the steps will be small indeed as long as Cuban Marxism rejects the role of the market in managing economic activity, and insists on the primacy of state objectives for private economic activity. 
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"The Emerging Trajectories of Chinese Constitutionalism in the ‘New Era’": Text of Remarks Delivered at Event, China's Changing Constitution, Trinity College Oxford "Extended Play" Version)

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I recently posted Flora Sapio's excellent summary of the event organized by Ewan Smith and held at Trinity College, Oxford. Entitled China's Changing Constitution, it was held on 15 November 2018 ("China's Changing Constitution" (15 Nov. 2018, Trinity College Oxford)--Brief Proceedings).

In this post I include the "extended play" version of the remarks that I shared at that event, The Emerging Trajectories of Chinese Constitutionalism in the ‘New Era.’ The object of the remarks was to consider whether contemporary Chinese politics was downshifting constitutions and constitutionalism within the context of the evolution of the Chinese political and state system. I examined the issue through the prism of the discussion of constitutions in the Report of the 19th Chinese Communist Party Congress held in Beijing in October 2017. As explained in a more leisurely way below, I suggest that the issue of socialist rule of law, and socialist democracy remain substantial priorities for the CPC itself and a core policy of governance. It is also clear that the State Constitution remains a central instrument of governance. But it also becoming clearer that the fundamental constituting document of the political order is not the state constitution but the political constitution of the CPC, which provides the structures through which CPC leadership can permeate the structures of politics, law, economics and society.

The text of these remarks were made better (though all flaws remain entirely mine) by the quite insightful comments of Nick Barber.  His consideration of the propositions advanced were grounded in three critical insights.  The first turned on constitutionalism skepticism in the Chinese context, the second on the ways that skepticism is misplaced, and the third on why the skeptics ought to be worried (that is the right reasons for constitutionalism skepticism).   


The Emerging Trajectories of Chinese Constitutionalism in the ‘New Era’
Remarks delivered at Jesus College, Oxford
15 November 2018
Larry Catá Backer


Good morning everyone.  I am delighted to have been given this opportunity to speak with you about some with dynamic developments in Chinese constitutional thinking, as well as its expression as politics and law. Great thanks to Ewan Smith for organizing this event and to the sponsors.

I would like to start with the sort of question that is usually avoided in polite academic society in the West—though it is always in the ether of our conversations when the topic turns to law, legitimacy, and constitutionalism.

That question is this: what are we (and by ‘we’ I mean those us in the West) to make of Chinese constitutionalism?

For some, the term is an oxymoron; one cannot speak of any joinder of the two concepts.  The premise is that either Marxist-Leninist systems are incompatible with any theory of constitutionalism.  Inversely, the opposite premise suggests that the practice of Marxist-Leninist states makes constitutionalism impossible in fact. Ironically, there are schools of thought in China that have taken the same view but from a different conceptual starting point. There are those in China who, like their counterparts in the West, continue to believe that Chinese Marxist Leninism is fundamentally incompatible with constitutionalism.  That judgment, however, is occasionally grounded on the premise that constitutionalism is itself an ideological construct that embodies the values and premises of Western liberal democracy and is indistinguishable from it.   

Other times the notion of constitutionalism may be rejected in China because the supposed core premise of constitutionalism (and of constitutions)—that of the supremacy of law—is fundamentally incompatible with systems the core premise of which is politics. As such, it is to the integrity of the vanguard party and its principles rather than to the construction of “higher law” that ought to be the centering element in Chinese political theory.   From this some have taken to supposing that Chinese approaches to the constitution of their political system, and thus of their approach to law, is sui generis.  

For others, Chinese constitutionalism can only be understood, like the Chinese state itself, as a work in progress.  It is premised on the notion that China’s path toward constitutionalism is not yet complete—unlike, say France, the United States or Japan. It follows, then that the “elders” of constitutionalism, and especially their academics, have a responsibility to educating and helping China along the appropriate path toward some goal that inevitably arrives somewhere near Western values, sensibilities and presumptions.

Still others might suggest that Chinese constitutionalism misunderstood.  The premise is sometimes tied to the thought that Westerners do not understand either the theory or the application of constitutionalism within China.  But it is also sometimes the expression of a judgment that China does not itself understand its own constitutionalism, that is that neither Chinese academics nor the governing apparatus are self-aware.

A variation on this theme turns the issue inward; that is that constitutionalism in general is either misunderstood or misapplied. That, of course, brings us back to an underlying issue in this discourse—something of a lack of consensus about the meaning of constitutionalism itself. That lack of consensus is particularly potent in the West, where indeed there remains a lively debate among intellectuals over the form and practice of constitutionalism and its central elements—markets, democracy (however that is understood) and democratic representation, rule of law, and separation of powers, among others.

There is, of course, quite an animated debate within Chinese academic and political circles that to some extent mirrors these quite distinct general perspectives on the question of China and constitutionalism.  And there are a number of schools that have evolved around the issue of constitutionalism within Marxist Leninist states (in general) and Marxism Leninism with Chinese characteristics (in particular) especially from the time of the leadership of Jiang Zemin. For ease of reference these may be identified as a political constitutionalism, a legalist constitutionalism, and an evolutionary constitutionalism (others sometimes tend to use the more contextually political descriptors—left, right and center constitutionalism).

Political constitutionalism refers roughly to a very broad spectrum of schools that center politics within normative (sometimes binding but not necessarily legal) parameters. Values and principles matter here. At one extreme it preserves old approaches that embrace a perspective suspicious of Western notions of constitutionalism and of any constitutional project as a device for the preservation of class exploitation. This approach is particularly suspicious of markets, of representative democracy, and of normative structures that might appear to bund and limit political power.   At the other end it suggests a development of a strong element of structural normativitiy that sees in constitutions an important device for the expression of collective leadership.   Marxism Leninism is not tamed by law, rather constitutionalism is the systematic approach to political self-discipline compatible with Marxist Leninist core values.

          Legalist constitutionalism refers roughly to a very broad spectrum of schools that de-centers politics in favor of a legal framework for ordering politics and the state. Text matters most here. Legalist constitutionalism tends to draw attention to the State Constitution as the centering element of the institutionalization of power, even as in some variations, it concedes the authority of the CPC as the primary source of political legitimacy. These approaches can include variations on notion of the autonomy of the state constitution to which all other institution creating governance systems are bound.  Another variation sees in instruments like the State Constitution an expression of delegation of authority from the political collective to the institutional apparatus of the state, sometimes with a focus on judicial authority.

         Evolutionary constitutionalism refers roughly to a spectrum of approaches that inevitably centers people over vanguard and governmental constitutionalism over Communist Party.  These schools tend to see Chinese constitutionalism as a process that will or should toward structures in which the role of the vanguard party is diminished and a direct relationship between the masses and the organs of government are solidified, sometimes through law and sometimes through institutionalized politics.  Just as elements of political constitutionalism draw on old models of Soviet Marxist Leninism, variants of evolutionary constitutionalism draw on notions of Western liberal constitutionalism which sees as the inevitable end of the process of political life in China a move toward a form of Western style democratic republicanism; republicanism of some sort.

And it is in this last stream of Chinese constitutionalist debate that converges with conventional Western notions of constitutionalism (at least with respect to many of its accepted characteristics). It is also in that evolutionary stream that Chinese approaches find its greatest challenge. His last pint precisely because evolutionary approaches suggested that Chinese efforts were neither whole in themselves, nor could they emerge from normative structures that were themselves legitimate or authoritative. Indeed, constitutionalism in this sense necessarily stated with the proposition of illegitimacy and of the transitory nature of the system now in place. If that were the case, then it was impossible to speak about constitutionalism and about China in the same breath.

All of these trajectories converged nicely converged in Chinese thinking at the time of the 19th Chinese Communist Party Congress in the autumn of 2017. This Congress was especially important for its robust embrace of a “New Era” in the development not just of the Chinese state, but as well of the Chinese Communist Party in its leadership role. The importance of the New Era announcement was largely lost to the West; just another ideological bauble with no real meaning, other than perhaps relating to the personal power of specific leaders. Despite Western indifference, the announcement had substantial implications for law, politics, economic and social organization. First the New Era signaled that China was entering a different historical stage that opened both the premises and operating conditions of the past to reform.  Principal among these were the great pillars of the prior Deng Xiaoping Era: socialist modernization, socialist democracy, the relationship of the CPC to the state and the masses, and the understanding and role of law in the relationship between the state and political organs. Principal among the changes from the Deng Xiaoping Era was a movement away from the key focus of socialist modernization—the development of productive forces—to a new focus on the distributive effects of wealth creation. This marked a long journey from the principal contradiction of the first, Mao Zedong, Era  which focused on class struggle in the construction of Party and polity in the wake of the establishment of the “New” China in 1949,  through the focus on development, to a new focus on distribution.

This new focus within a “New Era” also required a re-examination of the structures through which the new contradiction would be resolved.  To that end, it was necessary to turn attention to the CPC’s role as a vanguard, its international operating principles, the relationship of that organization to the state and its government, and lastly to the relationship of state and CPC to the people. To that end, the 19th CPC Report emphasized a new basic relationship—between the core and the collective—that was to permeate social, political, and economic organization.   The 19th CPC Congress Report emphasized the need to more deeply embed socialism as a complex cluster of social values, of working styles, of expectations, of accountability, and of rules, all bent to the purpose of continuing development of productive forces now directed toward distributive principles. A “New Era” required a substantial interrogation of contemporary approaches in light of changing circumstances, including the success of the socialist modernization project, and the challenges of corruption and integrity in a system that was to be guided forward by the CPC. 

At the core of all of these new era efforts was to be the Chinese Communist Party . It was to serve as the core of the new collective efforts to rebuild society with Chinese characteristics.  But not just with generic Chinese characteristics.  Rather those characteristics were to reflect the forward development of all aspects of society under the mandatory guidance of the core ideology for the advancement of which the state was re-founded in 1949. The normative elements of this were bounded by Marxist-Leninist-Mao Zedong, Deng Xiaoping principles now refined by their successors.  The governance elements were bounded by Leninist principles of the mass line, democratic centralism, and the central role of the CPC in every aspect of social, economic, and political activity. The expression of this leadership was to be undertaken through traditional methods, now recast—socialist culture, socialist law, socialist democracy, and socialist markets based economic activity.  It would also require new methodologies—social credit, morals campaigns targeting integrity, and a new data driven analytics providing real time assessment, management and compliance through interactive consequence-based algorithms.  

Taken together, the foundational ideological premises of “New Era” changes were focused on political change. The 19th CPC Congress Report put the CPC in the center, manifested legitimate and authoritative political action through the leadership role of the CPC, and then anchored the CPC’s own actions within the cage, not of law, but of political principle now made current.  Within these structures, what space might have been left for constitutionalism and its rule of law based legalism? What remained of the relation between the law of the state constitution and the constraints on the CPC?

For some the 19th CPC Report appeared to step back from what had seemed to be a march toward  conventional rule of law based constitutionalism.  Indeed, a cursory view might have produced the conclusion that the “New Era” formally acknowledged a move away from both rule of law-based systems, and, as well, away from principles of the supremacy of law and of constitution within legitimate and authoritative governmental systems.  In an ideological system in which the “new era” centers politics over law, there is a sense that constitutionalism, and with it rule of law based legitimacy, will be officially downshifted in favor of a system in which politics is expressed through the systematic exercise of administrative discretion and where the principles of ideology have little constraining effect on the exercise of that discretion.  

I will suggest that the 19th COPC Congress did acknowledge a quite profound change in the direction of constitutionalism with Chinese characteristics.  But at the same time that change has been in development for a least a decade, and quite transparently so. I will suggest as well that one can see the contours of that change outlined quite specifically through an examination of the use of term constitution in the 19th CPC Report. Understood in context, what appears to emerge is a clearer relationship between the constitution of the political and the administrative sphere sin China, and the respective roles of their constitutions. As well, there is developed the constitution of the leadership role of the vanguard party. But taken together, these references point to the development of three quite distinctive expressions of constitutionalism in China.  The first is socialist party-political constitutionalism. This focuses on the constraints that the CPC imposes on itself in legitimating its leadership obligations.  The second is socialist legality. These center on the construction of socialist systems of law, and a socialist perspective on rule of law the object of which is both to express the political line of the CPC through law, and in that expression to substantially constrain the exercise of administrative discretion by state officials. The third is socialist democracy. This provides a constraint on the exercise of the political aspects of CPC leadership, and also a constraint on the exercise of administrative authority through state organs.  Those constraints are constructed as system of accountability and consultation centering on the development of principles of endogenous democracy grounded in systems of mandatory consultation among representative bodies beyond the CPC.

So how is constitutionalism approached within the body of the 19th CPC Congress Report? I examined the nuances at a more leisurely pace in an article I have shared here recently published in the Connecticut Journal of International Law. In short, what 19th CPC Congress Report suggests are the contours of an emerging theory of constitutionalism that better aligns with the underlying normative framework of Chinese Marxism-Leninism that I have just suggested—political leadership of a vanguard party which must be constrained by its own line, the expression of that leadership and the basic political in the construction of a government apparatus, and the development of democratic practices built into a complex interaction among representative bodies constituted within and outside both the vanguard party and its administrative apparatus.

What are the signs and auguries embedded within the 19thCPC Congress Report that moves to make these grand statements about the great dynamic forward movement of Leninist constitutionalism in China? I can start at the most general level—counting words.  The word constitution—either referencing the state constitution, or the political constitution of the CPC itself—appears thirteen times in 9 different sections of the report. Understand that the single English word “constitution” actually is rendered differently in Chinese, a point explored in the article. With that caveat in mind, mentions of “constitution” were tied to notions of fidelity, to notions of responsibility, and to notions of legality. The state and CPC act solely in compliance with the strictures of the constitution;  constitutional understanding must be regularized and institutionalized; constitutions must be held in great esteem; the recognition that the socialist system of laws revolves around the state constitution and that building a socialist country based on rule of law requires development of a robust socialist rule of law theory; the recognition that the CPC Constitution is at the center of the political responsibilities of the CPC; the acceptance of a notion that the constitution (state and political) serve as the articulation of the rules for a system of socialist endogenous democracy grounded in consultation among representative groups; and that constitutions themselves serve to align the Leninist governance binary—that between core and collective—with principles of norms based governance.

At least in its crudest form of analysis, it is worth considering whether this rate and the forms of the references to constitutions appears aberrational in the history of the leadership of the CPC as expressed in its Congress Reports.  To that end CPC Congress Reports from the 7th CPC Congress were considered. Considering that group of Reports as a whole, the short answer is ambiguous.  To some extent, the quality of the mentions points to development that is distinct from that became before it.  Yet that development dies not suggest a  rejection, so much as an advance, in the theoretical foundations of constitutional mention in prior CPC Congress Reports. 




Simultaneously, the rate of “constitution” mention also appears to fall within upper ranges of the references to constitution in prior CPC Congress reports dating back to the 7th CPC Congress.  The crude chart I distributed points to that conclusion. However, that conformity may benefit from a little bit of explanation. Undeniably, except for the extraordinary proceedings of the 12th CPC Congress, undertaken in the wake of the transition from the Cultural Revolution, references to the state constitution and the constitution of the CPC have remained roughly level since the 14thCPC Congress.  Indeed, references to both state and CPC constitutions appeared higher in the 19th CPC Congress Report than at anytime since the pivotal 12th CPC Congress. The more important change that the historical patterns suggest, however, is the way in which rates of mention of the state as opposed to the political constitution of the CPC have changed.  The prominence of the political constitution appears to have occurred in the 12th CPC Congress.  From then, the focus appeared to have shifted to the state constitution (which for Westerners is treated as the only constitution worth considering). That pattern continues through the 19thCPC Congress Report, again indicating that the move toward “New Era” ideology represents an evolution rather than a rejection of the foundations laid down at the start of the Deng Xiaoping era of socialist modernization.  And indeed, inherent in the self-description of this dynamic development is the notion not of a break with the past of the building on the past to adjust ideology and practice to meet the challenges of the times.  This deliberate investment of a strong dynamic element in the foundations of Marxism and Leninism distinguishes China from those Marxist Leninist states whose theory appears more ossified, locked into some increasingly remote founding moment.  Cuba is an important example of the constraints to reform that such a quite different approach produces.

But a closer look reveals nuance the nuance that is essential to understand the character of the changes in Chinese constitutionalism that flow from a qualitative analysis of the mentions of constitution in the 19th CPC Report. Let me end these remarks with a brief look at those markers and what they suggest about the realities of constitutionalism in the “New Era.”

First, references to the political constitution of the CPC  suggest an enhanced commitment to political constitutionalism.  The CPC constitution is understood as the fundamental rules of CPC authority.  It centers politics, but institutionalizes it within a cage of rules of its own making.  Thus is not to be confused with the Western notion of constitutions over the political.  Rather it expresses the notion that constitutions memorialize the political decisions that are wholly in the province of the vanguard, but that once made those decisions bind the CPC and its members. Constitutions, then serve two purposes. It extends socialist legality by ensuring a basis for supervision and discipline.  As such, constitutionalism is an important supporting element to the Supervision Law and its progeny. At the same time, the references to the CPC constitution centers the Leninist notion of democratic centralism in the way in which the CPC exercises its political authority.  As such, constitutionalism moves to the center of the development of Leninism even as it conforms to the global expectations of rule of law legitimacy.   It is not so much about the devolution of power as its manifestation through rules that itself permits the expression of collective and process based rather than personal and discretionary decision making.  

Second, references to the state constitution suggest the advance of a movement to conflate socialist legality and the organization of the state organs within the construction of a rules based (constitutional) order.  In some sense this reflects the traditional center of constitutionalism—the construction of a government that conforms to and advances the political project of the community that adopts it. At the same time, in the Chinese case, state constitutions are quite clearly subordinated to the political world of the vanguard.  It is not the source of authority, but rather its reflection.  It is the expression of the CPC line, but now directed toward the authoritative ordering of the state. The 19th CPC report makes clear that the state constitution cannot be understood or applied except in the context of the leadership of the CPC and its direction.  To that extent, the law, including the fundamental power of the state constitution, provide a basis for action, for supervision, and for its justification in ways that appeal internally as well as to China’s foreign audience.

Yet it is in the so-called hybrid references to constitutions, that the understanding of constitutionalism emerges most clearly. These are references to the state constitution which together with the sole references produce the quantitative conclusion that the state constitution is mentioned most in the CPC Congress reports. But the character of the reference points in a different direction.   The normative thrust of the statements points to conventional constitutional theory—the primacy of a state constitution, the principle of equality before the law, the principle of the supremacy of the law and of the illegitimacy of abusive discretion and cults of personality. At the same time, it deviates from conventional constitutional approaches because it shifts the responsibility for those constitutional principles to a very specific political institution that itself is subject t its own paramount constitutive instrument. Thus, for example, reference to the obligation to improve the Chinese Socialist system of laws, “at the heart of which is the Constitution” falls on the CPC, and is exercised through the CPC’s own rules and governance institutions. These mixed references appear in the key sections describing socialist legality, socialist democracy, and the construction of socialist rule of law. These references suggest that constitutionalism has migrated in and through the organs of the CPC, and is now constituted within the political constitution of the CPC, whose manifestation to the collective is expressed in the state constitution.

So, what is the state of Chinese constitutionalism in the wake of the 19th CPC Congress? It is clear that the issue of socialist rule of law, and socialist democracy remain substantial priorities for the CPC itself and a core policy of governance. It is also clear that the State Constitution remains a central instrument of governance.  But it also becoming clearer that the fundamental constituting document of the political order is not the state constitution but the political constitution of the CPC, which provides the structures through which CPC leadership can permeate the structures of politics, law, economics and society. The State Constitution assumes more the character of a derivative and implementation document—the cage of regulations whose character and interpretation is in every aspect bounded by the higher principles of the CPC Constitution in general and its General Program in particular. The 19thCPC Congress did not make this declaration explicit, but it made that conclusion inevitable in its discussion of constitutionalism and its practice. That shift is most noticeable in the concentration on the building of socialist consultative democracy—a self-consciously political institution, rather than on the construction of legalized institutions through constitutional meta-rules.  

So, what is Chinese constitutionalism in the New Era? Perhaps the best answer is provided in the 19th CPC Congress Report itself—an “institutionalized development of consultative democracy.”

What are we left with then?  Chinese constitutionalism is framed within a separation of powers that does not mimic that adopted in the West. First is the form of constitutionalism that serve as the fundamental rules for the organization and operation of the political order. Second is a form of constitution that serves as the heart of the socialist system of laws and the foundation of socialist rule of law theory, but not as the foundation of socialist democracy. 

Where, then, does socialist democracy emerge? The 19thCPC Congress Report constitutes socialist democracy apart from socialist constitutionalism.  It emerges as an autonomous system through which the CPC, as a core power, exercises its leadership responsibilities among the representative organs of the masses—and particularly those organs constituted through the state and the United Front parties. It is to the challenge of structuring those relations within the constructs of constitutionalism that China will likely grapple over the coming years.

I have now come to the end of this somewhat complex journey.  But complexity is not unexpected in the construction of theories for the organization of powerful states. For all that complication, however, it is relatively easy to build complex, nuanced, self-referencing theory, like some spectacular castle in the sky. The true test of leadership, and legitimacy, however, lies in the ability to actually realize this theory in the operation of the state, that is to embed these ideals into the everyday lives of individuals and institutions.  For China, like other states, the distance between the ideals of theory and the realities of practice, can be quite great. How China will choose to bridge those gaps will serve as the true test of the long term viability of its emerging constitutionalism theory.

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12-Introducing "Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era" (Globalization and the Caribbean Marxist Multinational)

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I reported the publication of Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press 2018; ISBN: 978-1-949943-00-9 (pbk); I SBN: 978-1-949943-01-6 (ebk)) (here). Cuba’s Caribbean Marxism is the first offering through Little Sir Press, a self-publishing collective that is a new project in broader knowledge dissemination of the Coalition for Peace & Ethics (more about that project here). Join us! 

https://images-na.ssl-images-amazon.com/images/G/01/SellerCentral/legal/amazon-logo_black.pngCuba’s Caribbean Marxism eBook may be accessed through these sites:


  https://www.kobo.com/us/en/ebook/cuba-s-caribbean-marxism-essays-on-ideology-government-society-and-economy-in-the-post-fidel-castro-era   


Paperback ordering information to follow. Individual Chapters also may be ordered in pdf format.

I promised that over the course of future posts I would be introducing readers to the book. This post continues with an introduction to Chapter 10 ("Globalization and the Caribbean Marxist Multinational"),  which follows below.   Here for access to other posts in this series.  HERE for the video recording of the launch event for Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era, which took place 12 November 2018 at Penn State 

Chapter 10
Globalization and the Caribbean Marxist Multinational: Cuba and Regional Trade
      The Cuban Embargo has had a tremendous effect on the way in which Cuba is understood in the global legal order. That understanding has vitally affected the way in which Cuba is situated for study both within and outside the Island. This “Embargo mentality” has spawned an ideology of presumptive separation that, colored either from the political “left” or “right,” posits isolation as the equilibrium point for any sort of Cuban engagement. Indeed, this “Embargo mentality” has suggested that isolation and lack of sustained engagement is the starting point for any study of Cuba. Yet it is important to remember that the Embargo has affected only the character of Cuba’s engagement rather than the possibility of that engagement as a sustained matter of policy and action.
         Yet Cuba has reacted to American efforts at isolation with a vigorous and to some extent successful internationalism of its own. Cuba has turned the American Embargo and its mentality on its head, and used it as the blunt instrument against which it has constructed both its internal political ideology, and turned that ideology outward.  Conventionally understood, Cuban engagement has been episodic and opportunistic. It has been (and continues to be) confrontational at times and always ideologically driven in large part, perhaps, because those strategies have worked well for Cuba on the international stage.
         Since the 1959 Revolution, Cuba has fought a number of wars on multiple fronts in the service of its national interests and internationally significant ideological campaigns. Virtually every lever of state power has been used in these efforts— including military, diplomatic, organizational, economic, media, cultural, religious and ideological efforts. Most of these have used the United States, and its socio-political, economic, cultural and ideological values as the great foil against which to battle. Over the course of the last half century, these efforts have had mixed results. But they have had one singular success—they have propelled Cuba to a level of influence on the world stage far beyond what its size, military and economic power might have suggested. Like the United States, Cuba has managed to use internationalism, and especially strategically deployed engagements in inter-governmental ventures, to leverage its influence and the strength of its attempted interventions in each of these fields (e.g., Huish & Kirk 2007).
         Over the last decade that engagement has assumed an important economic as well as military and diplomatic character. Chapter 7 explored one manifestation of Caribbean Marxist internationalism in the context of sovereign lending and odious debts. Caribbean Marxism, however, is not confined to issues of a sovereign character.  Trade, and the regulation of trade and the consequences of economic activity are also important. Globalization has not left Cuba untouched (despite Cuban and American protestations to the contrary). Cuba has sought to engage globalization on its own terms. The engagement must be understood as increasingly bound up within the context of Cuba’s external relations, especially those in which Cuban has participated in the construction of a multi-national institutional architecture and in which it may not appear to take the lead.
Since the start of the 21st century, conventional economic globalization has been the object of one of the principal long term ideological wars waged by the Cuban state (Castro 2003). The Cuban state has been active in its attacks on the organizational framework of global conventional economic organization, from sovereign debt (Backer 2006) and business organization (Backer 2004) to the basis of private power to effect trade between states (Castro 2000). Among its many activities in this realm, the Cuban state has undertaken two significant efforts. The first seeks to develop an alternative basis for inter-governmental management of trade through the Alternativa Bolivariana Para los Pueblos de Nuestra América (ALBA) (Backer & Molina 2010). The second, realized in large part within the ambit of the first, seeks an alternative basis of the organization of economic activity for the production of goods and provision of services in line with an internationalized application of its national ideology. The projects and enterprises that are meant to implement these objectives are still at a very early stage in development. But all of them share certain characteristics founded on their organizational framework: control by the state, a conflation of labor and capital as components of production and a focus on state policy for the production and distribution of goods and services in the service of state determined economic welfare maximization.
That engagement, in turn, has made it far more likely that the autonomous development of Caribbean Marxism would collide with the emerging norms of globalization.  That collision is likely to occur in the emerging field of the legal and social regulation of human rights in transnational economic activity (Backer 2006a). In that context the political and social principles of Caribbean Marxism may not be compatible with emerging international consensus either on the rule structures to which economic activity ought to be subject, nor to the underlying norms to which business (whether undertaken by private or public entities) ought to conform.
That collision is likely inevitable as these enterprises, arguably created as a challenge to the conventional global economic framework, must operate within an international regulatory space with its own ideology. That ideology has been developed within the general parameters of human rights and other norms with respect to which international consensus has been developing, many with Cuba’s approval. Among important developments in the rules of business behavior, especially those touching on internationally recognized human rights, are soft law instruments developed through the Organization for Economic Cooperation and Development (OECD), and the principles of business and human rights being developed by the United Nations through the Secretary General’s Special Representative, John Ruggie—the Protect-Respect-Remedy framework (Backer 2010).
In particular, the relationship between enterprise, state, and worker appears to serve as a flash point for conflict between the grannacional conception of business and global consensus on the rights of workers—especially in areas of pay, forced labor, and trafficking. For example, some forms of Cuba’s socialist regional trade framework as been attacked for fostering conditions of individual servitude at odds with emerging international human rights standards. “Seven Cuban doctors and a nurse have accused their government of engaging in a ‘modern form of slavery’ with Venezuela after bartering their services for cheap Venezuelan oil” (Galliot 2010). This is a not unusual consequence when state operated enterprises that combine sovereign and private activity collide with emerging international human rights rules. This collision, and its particular potential effects on Cuba’s recent efforts to define a space for itself within global economic frameworks, is the subject of this Chapter.  Moreover, there is already an indication of potential conflict in recent cases filed in the United States in which these issues have been raised (Licea v. Curaçao Dry Dock Co. 2008). “For multinational corporations facing allegations of human rights abuses, the stakes have never been higher” (Drimmer 2009). That applies, in equal measure, to economic enterprises sponsored, owned or controlled by Cuba. And this is an area in which state sovereignty will provide little protection to enterprises geared to projection within world markets.
This Chapter considers Cuba’s new efforts at global engagements through the device of the grannacional in its ALBA framework. That framework itself presents something of an ideological curiosity that may be more meaningful as an illustration of the way in which Cuban Marxism finds expression as Caribbean Marxism. It is the internationalism inherent in Caribbean Marxism that is the central subject of this Chapter (Piedras 2018). The Chapter starts by examining the basic theory and objectives of the grannacional generally as articulated in ALBA publications as the “concepto grannacional” that serves as the organizing framework of these multi-state socialist enterprises. It considers distinctions and implications for the division of grannacional efforts between proyectos grannacionales and empresasgrannacionales. It then focuses on a specific grannacional-related project—the Misión Barrio Adentro (MBA), a socio-political barter project in which Cuba exchanges doctors and other health field related goods and services under its control for Venezuelan goods, principally petroleum (Convenio 2000). MBA is analyzed as an example of the application of the joint Cuban-Venezuelan approach to economic and social organization through the state. The MBA is also useful as an illustration of the difficulties of translating that approach into forms that might conform with emerging global expectations of economic conduct by private and state actors. The recent litigation in which Cuba has been accused (directly or indirectly) of violating international law by operating enterprises based on forced labor by both laborers and doctors, and soft law systems of governing business conduct (Galliot 2010) serve as a backdrop against which this analysis is undertaken.
The Chapter then briefly considers the theoretical points of conflict and intersection between internationalized Caribbean Marxism and emerging international human rights standards. For Cuba, programs like MBA have served as a means of engaging in economic globalization and of leveraging its political intervention in the service of its ideological programs in receptive states like Venezuela (Bustamante & Sweig 2008; Kirk & Erisman 2009). It has also provided a basis for expanding Cuba’s commercial power by permitting large scale state-directed barter transactions. But when bartering involves labor as well as capital, the fundamental premises of the ALBA system—and Cuban ideological notions of the fungibility of labor and capital in the service of the state—may collide with emerging global frameworks for human rights and economic activity. That collision is examined against (1) recent litigation in which Cuba has been accused (directly or indirectly) of violating international law by operating enterprises based on forced labor, (2) the possibility of conforming to theOECD’s Guidelines on Corporate Governance of State Owned Enterprises (OECD 2015) and the OECD Guidelines for Multinational Enterprises (OECD 2011), and (3) the possibility that these enterprises will not be able to conform to the United Nation’s developing business and Human Rights project, and especially its Guiding Principles for Business and Human Rights (United Nations 2011). MBA serves as a template both to understand the character of the operationalization of social sector grannacionalesand also to illustrate the way in which these projects raise significant questions of international law compliance, especially the ability of these enterprises to comply with emerging standards of business conduct.
 
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Conferência Ethos 20 Anos - Belém: Business, Human Rights, and Development

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I am happy to pass along information about the upcoming 20th Anniversary Conference of the Instituto Ethos, a Brazilian organization with a principal focus on business and Human Rights.  It was created in 1998 to focus on socially responsible business.

More information on the conference (in Portuguese) may be found below. Links to prior conferences also included.



Conferência Ethos 20 Anos - Belém

Quando: 28/11/2018 das 9h às 18h

Onde: Hangar – Centro de Convenções da Amazônia, à Av. Dr. Freitas s/n, Marco, Belém, PA

Conferência Ethos 20 anos - Belém do Pará

A segunda edição da Conferência Ethos em Belém do Pará dará continuidade às celebrações da trajetória de mudanças e inovação do Instituto Ethos e do movimento de responsabilidade social empresarial no Brasil. Com enfoque no cenário político, econômico e social da região amazônica, a programação discutirá o estímulo à vontade política e ao protagonismo para viabilização da economia florestal, da formação e consolidação de cadeias produtivas sustentáveis e para garantir que as comunidades possam ter voz sobre o uso das terras e da floresta. Nosso foco é dar visibilidade e compartilhar as soluções e os mecanismos políticos e sociais que já trabalham pela restauração florestal, pelos direitos humanos, pela transparência e pelo amadurecimento do desenvolvimento sustentável da Amazônia e de todo o país.

Por que participar?

Aproveite a programação do evento para conhecer a trajetória da sustentabilidade na região amazônica e compartilhar conhecimento com as lideranças, empresas e organizações que atuam na região e em todo o Brasil. Novas articulações para sua empresa, parcerias e uma nova mentalidade para seus negócios podem surgir desses encontros. Também é importante pensar no seu futuro, na sua formação e no seu capital social. A "Conferência Ethos 20 anos - Belém do Pará" pode gerar essas oportunidades.

Termo de Adesão | Conferência Ethos 20 anos - Belém do Pará

Pelo presente instrumento, denominado termo de adesão, o INSCRITO declara-se ciente e concorda com todas as condições necessárias, abaixo descritas, para participação da Conferência Ethos 20 anos - Belém do Pará, associação constituída nos termos dos artigos 53 a 61 do Código Civil brasileiro (Lei n.º 10.406/02), qualificada como OSCIP nos termos da Lei n.º 9.790/99, com sede na Rua Bela Cintra, 952, 9º andar, Consolação, São Paulo/SP, CEP 01415-904.

Inscrições

Investimento por pessoa para participação no evento:

  • Empresas Associadas - R$ 80,00 (valor tanto da nota fiscal quanto do valor líquido a pagar).
  • Empresas Não Associadas - R$ 100,00 (valor da nota fiscal; líquido a pagar a ser calculado de acordo com a tributação vigente descrita abaixo).

Impostos

Empresas Associadas:
nota fiscal tem valor igual ao valor líquido a pagar (não sofre incidência de impostos).
ISS: não incidência de ISS por se tratar de atividade prestada a associado.
COFINS: isento e não sujeito a retenção por tratar-se de receita de atividades próprias conforme artigo 14, X da MP 2158/01.
IR e CSLL: isenta da retenção do IR e da CSLL por se tratar de pessoa jurídica isentas Instituição sem Fins Lucrativos nos termos do artigo 15 da lei 9.532/97.
INSS: Isenta da retenção do INSS nos termos da Instrução Normativa RFB n 971 DE 13/11/2009.
PIS: não sujeito a retenção do PIS em função do artigo 13, IV da MP 2158/01

Empresas Não Associadas:
Valor líquido a pagar é 3% menor que o valor da nota fiscal devido à retenção da Cofins. O ISS não deve ser retido pelo participante!
COFINS: Prestação de serviços sujeita a retenção da COFINS à alíquota de 3% segundo Art.30 da lei 10.833/03.
IR e CSLL: Isenta da retenção do IR por se tratar de pessoa jurídica Isenta - Instituição sem Fins Lucrativos - nos termos do artigo 15 da lei 9.532/97.
INSS: Isenta da retenção do INSS nos termos da Instrução Normativa RFB n 971 DE 13/11/2009.
PIS: Não sujeita à retenção conforme artigo 13, IV da MP 2158/01.


Formas de Pagamento

O pagamento poderá ser feito por Boleto Bancário ou Cartão de Crédito através do PagSeguro.
*Cada participante receberá por e-mail a confirmação de inscrição logo após a comprovação do pagamento.


Descontos

1. Inscrições em Grupo
  • Inscrição para 5 a 9 pessoas - desconto de 7%
  • Inscrição para 10 ou mais pessoas - desconto de 20%

2. Inscrições para estudantes
50% de desconto para inscrições individuais de estudantes brasileiros, conforme regulamentado sob a Lei Nº 12.933 26/12/13. Será exigida comprovação mediante apresentação de documentos oficiais no credenciamento do evento.

Todos os descontos acima descritos não são cumulativos

Cancelamento e Reembolso de Inscrições

A solicitação de cancelamento de inscrições será aceita somente por escrito, via fax (11) 3897.2424, ou via e-mail financeiro@ethos.org.br, até 08/11/2018. O reembolso equivale a 80% do valor da inscrição e será efetuado ao participante 30 dias após o término da Conferência.
Após 08/11/2018, nenhuma inscrição poderá ser cancelada.


Transferência de Tíquete

A Transferência de tíquete de um participante para um substituto da mesma empresa será permitida desde que a solicitação seja feita por escrito para atendimento@ethos.org.br

Despesas não incluídas

Hospedagem, Estacionamento, Transporte e Alimentação não estão inclusos no Ticket e são de responsabilidade do participante.

Certificados Eletrônicos

Os certificados eletrônicos estarão disponíveis para impressão no endereço http://www3.ethos.org.br/conteudo/certificado-de-presenca-na-conferencia-ethos-20-anos-belem-do-para/ a partir do dia 10 de dezembro, sendo preservados por até 60 dias após término do evento.

NF-E (Nota Fiscal Eletrônica)

A Emissão das Notas Fiscais ocorrerá após a prestação de serviços conforme, Artigo 1º,
Combinado com o artigo 82 do Decreto nº 50.896, de 1º de outubro de 2009 –
Regulamento do ISS - São Paulo – SP.

Autorização e Uso da Imagem

O evento poderá ser filmado, gravado e fotografado para posterior publicação, transmissão, retransmissão, reprodução e/ou divulgação em qualquer veículo de comunicação. Ao participar do evento você concorda e autoriza a utilização gratuita de sua imagem e seu nome, nos termos ora mencionados, no Brasil e no exterior, sem limite de frequência, sem que isso caracterize uso indevido da imagem ou qualquer outro direito e sem que dessa utilização ocorra qualquer ônus e/ou indenização. Seu comparecimento ao evento implica aceitação incondicional dos termos acima.
Ao adquirir o ingresso o participante declara conhecer e concordar com todas as informações acima.

__________


  • Conferência Ethos 2017

    Conferência Ethos 2017

    Pela primeira vez três edições do evento são realizadas: Rio de Janeiro, São Paulo e Belém, sendo esta última a primeira cidade do Norte a receber a Conferência Ethos.

  • Conferência Ethos 2016

    Conferência Ethos 2016

    O evento aconteceu nos dias 20 e 21 de setembro, no Transamérica Expo Center.

1-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.  

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.  


Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Flra Sapio 
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“elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”

By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.

The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions -  Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions -  Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9  – summary of discussions - Tuesday 16 October 2018
Article 10  – summary of discussions -  Wednesday 17 October 2018
Article 11  – summary of discussions - Wednesday 17 October 2018
Article 12  – summary of discussions -  Wednesday 17 October 2018
Article 13  – summary of discussions -  Tuesday 16 October 2018
Article 14  – summary of discussions - Thursday 18 October 2018
Article 15  – summary of discussions -  Thursday 18 October 2018


Article 2. Statement of purpose


1. The purpose of this Convention is to:

a. To strengthen the respect, promotion, protection and fulfilment of human rights in the context of
business activities of transnational character;
b. To ensure an effective access to justice and remedy to victims of human rights violations in the
context of business activities of transnational character, and to prevent the occurrence of such
violations;
c. To advance international cooperation with a view towards fulfilling States’ obligations under
international human rights law;




Article 2 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Monday 15 October 2018, from 3 to 6 PM, together with article 8.

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 2 were submitted by 4 experts. Written comments specific to Article 2 were submitted by:

·      9 states (Azerbaijan, Chile, China, Egypt, India, Mexico, Namibia, Peru, South Africa)
·      5 NGOs.

Comments by Experts

Molly Scott Cato, Member of the European Parliament, expressed her pride for the work of the European Parliament in supporting the future Treaty, and her regret for the EU’s refusal to engage in the negotiations. She conveyed the testimony of a Mexican woman activist, who attempted to obtain remedy from the harm caused by the economic activity of a Canadian TNC, but Mexican “ laws are not strong enough to resist the power of massive global companies who are larger than many countries.” Chapters of trade agreements including protection for human rights and the rights of indigenous people are not parts of legally binding treaties.

Written comments by Ibrahim Salama (OHCHR) are not available on the OHCHR website.

Ana María Suárez Franco (FIAN) recommended including a reference to gender perspective in Article 2.

Gabriela Quijano (AmnestyInternational) suggested to more prominently articulate prevention as a purpose; to make corporate accountability a specific purpose of the future Treaty, and to add the key purpose of empowering individuals, communities and human rights defenders.

Comments by States

Written comments on Article 2 were submitted by 9 states: Azerbaijan, Chile, China, Egypt, India, Mexico, Namibia, Peru, South Africa

Azerbaijan: Article 2 should make a stronger reference to the obligations of TNCs under international law, as well as to differentiate between the definition of the host state and the owner state in order to avoid any further confusion and misinterpretation of the terms.

Chile: Article 2 should mention the United Nations Guiding Principles on Business and Human Rights. The future Treaty should include all enterprises, not only TNCs, because States obligation include all enterprises, regardless of the domestic or transnational nature of their business activities. Limiting the future Treaty to TNCs would limit its applicability.

China:  the relationship between the three paragraphs of Article 2 needs to be further clarified. The focus should on be paragraph b of Article 2, because this paragraph states the purpose of the future Treaty. The wording about State obligations under international law is too broad. Different countries have ratified differen treaties, and therefore are under different obligations, therefore the word “applicable” should be added before “international human rights law”.

Egypt: paragraph c is not clear, and more of general nature that goes beyond the purpose and the object of the legally binding instrument. Egypt proposed to modify its language to link it with the activities of the TNC and OBEs and not to fulfill its obligations under international human rights law in general.

India: reserved comments on article 2 until the discussion on Article 4 would clarify the meaning of “business activities of a transnational character”. India believes the Treaty should not cover national enterprises, because India already regulates national enterprises through its domestic legislation.

Mexico: the standard of protection of the Treaty should extend to all enterprises within the jurisdiction of the State, without distinction between public or private enterprises, and regardless of the transnational or domestic character of their activities. The term “violation” should be used only in relation to actions or omissions of a State, while the term “abuse” or “adverse impact” should be used with reference to enterprises.

Namibia: States already have a duty to regulate the operations of national businesses and the focus of this treaty is on the extra-territorial operations of businesses, and on TNCs. In the interest of consensus, the Treaty could refer to all types of business entities.

Peru: the Treaty should not be limited to transnational enterprises, but include all business activities.  Paragraph 1.b is ambiguous, and it should specify the human rights violations covered by the Treaty.

South Africa: the Treaty must recognize that TNCs and Other Business Enterprises must contribute to the requisite means of implementation for the realization of all human rights; for the eradication of poverty; and that they must adopt sustainable and ethical business practices.

Comments by NGOs

Asia Pacific Forum on Women, Law and Development and the Feminists For a Binding Treaty. (Representing 250 feminist organizations in Asia Pacific and globally): article 2 should  state the primacy of human rights over any other type of law or obligations, including trade and investment agreements.

CCFD-Terre Solidaire, France Amérique Latine and Amis de la Terre France: Article 2 should include new obligations for States, and direct obligations for transnational corporations. The granting of these obligations stems from the “Protect, Respect and Remedy” report published in 2008 by the Special Representative on business and human rights John Ruggie, and the OECD Guidelines for Multinational Enterprises, the UN Convention on the Law of the Sea and the general observation 31 of the UN Human Rights Committee. The following wording was suggested:

“transnational corporations have obligations derived from International Human Rights Law. These obligations exist regardless of the legal framework in effect in Host, Home or Affected States, directly or through their supply chains”.

CETIM: Article 2 should include direct obligations for TNCs. It is important to highlight that existing international treaties, some investment treaties, and the law of the European Union already include such obligations for TNCs.

International Organizations of Employers: stated its position againstthe future Treaty. The focus of Article 2 is too narrow, it will not achieve the goal of human rights protection, and leave the vast majority of rights-holders outside of the Treaty’s mandate. Victims of harms caused by purely domestic companies or State-owned enterprises would not be afforded the same protection or remediation avenues. The text should adopt the term "abuse" instead of "violations" or at least state that companies would have a duty not to violate national laws that reflect the provisions of this Treaty. The purpose to advance "international cooperation with a view towards fulfilling States' obligations" should be supported by measures increasing policy coherence between standards and national law; enabling states to address challenges in their jurisdictions; increase peer pressure between States to meet their human rights duties.

Institute of Policy Studies/Transnational Institute (TNI), Transnational Migrant Platform-Europe (TMP-E) as is part of the Global Campaign to Reclaim of Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity: address the gap in the current draft Zero in relation to the obligations of TNCs with respect to human rights that are already established by UN Conventions.
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13-Introducing "Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era" ("Reform and Global Corporate Social Responsibility")

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I reported the publication of Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press 2018; ISBN: 978-1-949943-00-9 (pbk); I SBN: 978-1-949943-01-6 (ebk)) (here). Cuba’s Caribbean Marxism is the first offering through Little Sir Press, a self-publishing collective that is a new project in broader knowledge dissemination of the Coalition for Peace & Ethics (more about that project here). Join us! 

https://images-na.ssl-images-amazon.com/images/G/01/SellerCentral/legal/amazon-logo_black.pngCuba’s Caribbean Marxism eBook may be accessed through these sites:


  https://www.kobo.com/us/en/ebook/cuba-s-caribbean-marxism-essays-on-ideology-government-society-and-economy-in-the-post-fidel-castro-era   


Paperback ordering information to follow. Individual Chapters also may be ordered in pdf format.

I promised that over the course of future posts I would be introducing readers to the book. This post continues with an introduction to Chapter 11 ("Reform and Global Corporate Social Responsibility"),  which follows below.  Here for access to other posts in this series.  HERE for the video recording of the launch event for Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era, which took place 12 November 2018 at Penn State.
 
 
Chapter 11
 Reform and Global Corporate Social Responsibility: Inbound Investment, and Outbound Economic Activity  
The normalization of relations between the United States and Cuba that began in earnest 2015 has started a process through which Cuba is likely to be brought closer to more robust integration with the global economic order. That process of integration poses both great opportunities and great challenges for Cuba. Both challenges and opportunities are likely to be felt in equal measure as Cuba assumes a place on the global supply chain. That “place” is made more complicated because Cuba simultaneously occupies a place within the lower rungs of global production with respect to some sectors (tourism, extractives, agriculture), while it occupies a much higher place in global production in other sectors (pharmaceuticals, medicine).
This produces tension within Cuban economic policy, especially as a function of the core ideology of Caribbean Marxism. With respect to those sectors where Cuba will occupy a place down the production chain it will face a set of problems shared by other states in the same position (irrespective of their national economic ideologies). This is the position within global production where the lowest value added is produced, where the ability to tax value is at its smallest, and where perhaps most labor intensive work is undertaken.  This was both the place in production once occupied by China and Korea a generation ago.  With respect to those sectors where Cuba will occupy an apex role in global production, there is great incentive for Cuba to mimic the wealth maximizing behaviors of successful global market actors.  Yet that requires action that run counter to the basic anti-market principles that order the Cuban internal economy.
It was this dual nature of engagement with global production (and the trade that sustained it) that produced in the ideology of Caribbean Marxism, a quite distinctive preference for isolation rather than for engagement with global production and finance (e.g., Castro 1999; Castro 1995; Castro 1986; Castro 1985, Castro 1985a; Castro 1985b; and discussion in Chapter 7). That isolation was meant to protect the operation of the Cuban internal economy.  There was a strong tie between nationalism and the protection of the national territory against penetration by the “foreign”  and the construction of an ideology suspicious of the basic premises framing the global economic order was constructed and through which it operated.
At the same time, the ideology of suspicion and isolation could be modified in two circumstances.  The first was in the context of projection of Cuban economic activity outward.  That was the context in which both socialist regionalism was constructed through the Alianza Bolivariana(ALBA)(Backer and Molina 2010), and the vigorous development of Cuban SOE engagement with foreign partners.  The second was in the context of tightly controlled inward foreign investment. These were either to be confined within cordons sanitaires--the special economic zones--discussed in Chapter 6, or in tightly controlled joint ventures overseen by the Cuban military or state organs, especially in the tourist sector. This tight control was very much in the Cuban foreign investment law (Republic of Cuba 2014, Ley 118) discussed in Chapter 2. 
Both impulses found their way into efforts to create a coherent ideological framework for controlled external engagement discussed earlier in Chapter 5.  That discussion produced an outlook within Cuban ideological constructs that created a dual track for engagement with global production and its operating rules. That was based on the isolation of Cuba’s internal economy because the way that global capitalism (as the Cubans understand those terms) operates was incompatible with the basic premises of Cuban political economy. That is, one can explain Cuban insistence on insulating the national territory against direct economic interaction with foreign public and private enterprises in the view that such contact will inevitably corrupt the Cuban ideological experiment in Marxist political economy. The other consequence is the policy of choosing economic sectors for development in which Cuban authorities believe that they might leap to the front of the production chain, and thus better control its effects internally. Cuba’s biotechnology and other industries are likely to place Cuba well up the supply and production chain, and a likely home state for the production of commodities related to this high value-added work.
Yet this dual track structuring produces its own challenges. It is becoming increasingly impossible for Cuba to have it both ways--a free hand in applying its own ideological framework internally, while at the same time conforming to a different set of rules in global markets. First, even in its state to state relations, Cuba is finding it hard to avoid efforts to incorporate global standards into economic activity within Cuba that involves foreign partners.  It is being built into trade relations, though for the moment still in very soft ways, for example in the human rights provisions of the Political Dialogue and Cooperation Agreement between Cuba and the E.U. (Council of the European Union 2016 ). Second, Cuba may have little choice to b¡to comply with international standards, as those are applied outside of Cuba, when Cuba engages in economic activity abroad (Kinley 2018).  The more challenging of the problems Cuba will face will involve its engagement with emerging global standards and expectations for the societal and human rights impacts of economic activity — in whatever form engaged.
This Chapter considers the issue of Cuban engagement with these emerging business and human rights standards within the Cuban economy (Park 2014). It continues an examination begun in Chapter 10, which considered the collision of norms where the internationalism of Caribbean Marxism interacts with international human rights standards. The Chapter is divided into three sections. After this introduction, the second section provides a brief overview of the emerging structure of global human rights. More specifically, the Chapter  provides an overview of the United Nations Guiding Principles on Business and Human Rights (UNGPs) (OHCHR 2011); the OECD Guidelines for Multinational Enterprises (MNEs) (OECD 2011); the UN Global Compact (United Nations N.D.; Backer 2006, p. 565); Bilateral Investment Treaties (BITs) with human rights components (Wells Sheffer 2011, p. 484; Hang 2014); some private standards or third party ordering regimes, including the Global Reporting Initiative (GRI 2018; Sarfaty 2013), the International Organization for Standardization (ISO) Standard 26000 (ISO 2010; Diller 2012), as well as a number of emerging rules, like the International Labor Organization (ILO) Conventions (ILO 2018; Helfer 2006); and MNE internal norms (Backer 2017). The third section looks at Cuba’s investment laws, and most importantly, its state-to-state agreements, such as the ALBA framework grannacionalprojects (discussed Chapter 10), in which Cuba barters services in exchange for goods (Backer and Molina 2010). Finally, the fourth section discusses what occurs when the global regulation initiatives discussed in the second section collide with Cuba’s practices discussed in the third section and the challenges Cuba will face as a result.
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Penn State CSR Lab: Report and Observations on Non-State Based Non-Judicial Mechanisms on the Ground (Prepared Feedback for the OHCHR Accountability and Remedy (ARP) III Report)

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The United Nations Accountability and Remedy Project (ARP) was developed through a strongly backed initiative of the Office of the High Commissioner for Human Rights (OHCHR). Starting in 2014, ARP has developed in three phases under multiple mandates from the UN Human Rights Council. While ARP I and ARP II considered carefully judicial mechanisms, and state based non-judicial mechanisms, ARP III focused on non state based non judicial remedial mechanisms. This last is an important and perhaps underdeveloped mechanism within the UNGP framework.

The OHCHR released a revised Report in November 2018 to generate additional feedback, including at a meeting organized therefor that takes place 29 November 2018 in Geneva. The principal focus of that meeting is to consider in some detail the five workstreams that serve as the heart of the ARP III Report. The OHCHR has welcomed additional feedback to aid in the finalization of the ARP III Report.

To that end the Penn State CSR Lab, an informally constituted collective of students and faculty at Penn State Law have produced this Report and Observations on Non-State Based Non Judicial Mechanisms on the Ground to aid the OHCHR as it moves the ARP III Report to conclusion.I am very proud of my students who had a substantial hand in putting this together and hope that their research and analysis proves useful to those who are undertaking the valuable ARP project.

The Penn State CSR Lab's Report to the OHCHR ARPIII team follows. It may also be accessed HERE.
 
 

Penn State CSR Lab: Report and Observations on Non-State Based Non-Judicial Mechanisms on the Ground
Prepared Feedback for the OHCHR Accountability and Remedy (ARP) III Report: Enhancing the effectiveness of Non-State based Grievance Mechanisms

Submitted by Larry Catá Backer, W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802 
25 November 2018

Contents
I. Executive Summary
II. Background
III. The Penn State CSR Lab and the Object of this Report
IV. General Observations About the Work Streams
V. The Operation of Non-State Based Non-Judicial Mechanisms—Examples
VI. Recommendations

I. Executive Summary

The United Nations Accountability and Remedy Project (ARP) was developed through a strongly backed initiative of the Office of the High Commissioner for Human Rights (OHCHR). Its principal object is to address the challenges for rights holders of access to effective remedy. The UN Guiding Principles on Business and Human Rights (endorsed 2011) was understood as serving as an effective basis for meeting the challenges posed by the gap between rights and remedy that appeared substantial in many contexts.

Starting in 2014, ARP has developed in three phases under multiple mandates from the UN Human Rights Council. While ARP I and ARP II considered carefully judicial mechanisms, and state based non-judicial mechanisms, ARP III focused on non state based non judicial remedial mechanisms. This last is an important and perhaps underdeveloped mechanism within the UNGP framework.

The ARP III has progressed substantially.  Under the direction of the OHCHR, an initial report was produced and then revised after extensive formal and informal consultation.  The OHCHR released a revised Report in November 2018 to generate additional feedback, including at a meeting organized therefor that takes place 29 November 2018 in Geneva. The principal focus of that meeting is to consider in some detail the five workstreams that serve as the heart of the ARP III Report. The OHCHR has welcomed additional feedback to aid in the finalization of the ARP III Report.

To that end the Penn State CSR Lab, an informally constituted collective of students and faculty at Penn State Law have produced this Report and Observations on Non-State Based Non Judicial Mechanisms on the Ground to aid the OHCHR as it moves the ARP III Report to conclusion.  The Report is divided into two parts.  The first part provides brief observations about the Workstreams.  The Second part of the Report includes information about the way that non-state based non-judicial mechanisms have been developed in a number of large multinational enterprises and the challenges and opportunities for the five streams these efforts represent.

With respect to the five Work Streams, the Penn State CSR Lab noted the following.  

First, with respect to Work Stream 1, substantially more work must be undertaken to produce more effective guidance on the way in which the several criteria of UNGP 31 might be rationalized and connected to specific practice.  As it stands, the approach to UNGP 31 runs the risk that its criteria may not be integrated and applied as a networked whole. Particularly concerning are the methodologies that in emphasizing some of the criteria may effectively marginalize or distort others. 
Second, with respect to Work Stream 2, the CSR Lab notes the value of understanding the interface between on state non-judicial grievance mechanisms and those of the state. At the same time, Penn State CSR Lab worries that a focus on the regulatory ecosystem suggested in ARP III may both distort and marginalize the work of its principal focus.  It may distort where, inadvertently, the focus on state interface veils the critical importance of state system overlap that are central to grievances touching on the concerns of multiple public and private actors.  More importantly, it tends to conflate and compress the rich and complex network relationships in the private sector from out of which non-state non judicial grievance mechanisms that may effectively reduce downstream (and mostly global South private actors) to invisibility. It may marginalize where the focus on the state reduces both internal mechanisms and mechanisms developed to provide remedy without outsider stakeholders to contingent and peripheral function. At its limit, such a connection runs the risk of reducing non-state based non judicial mechanisms to a formality perhaps most useful for fact finding.   

Third, with respect to Work Stream 3, the CSR Lab notes the value of inter-corporate cooperation. It draws attention to those mechanisms that offer a window on patterns of success (particularly in Bangladesh). It welcomes the scenarios as both useful and effective means of conveying practical insight. However, Penn State CSR Labs note that including mechanisms for the inclusion of international organizations in the structures of these multi-corporate efforts might be useful, for example, the ILO.   Penn State CSR Lab also notes that additional fact finding would be most useful in not just mapping these structures but also in analyzing their effectiveness.

Fourth, with respect to Work Stream 4, Penn State CSR Labs notes the heavy burden of duty that falls on States in this respect.  It regrets the need for the inclusion of this Work Stream which serves as an indication of state failure in substantial respect.  And it notes with alarm that such failure in this respect may well impact the ability of States to serve as effective partners in Work Streams 2 and 3. Lastly, it notes the challenge of avoiding domination by large and powerful states on the development of the rules and structures in this area.  To that extent, consideration of this workstream cannot be undertaken without a sensitivity to the insights of Workstream 5.

Fifth, with respect to Work Stream 5, the Penn State CSR Lab notes the great challenge posed by a responsibility for meaningful involvement.  It notes that enterprises ought not to be held to the standards of states, many of which have yet to attain a full embrace of meaningful involvement within their own territories.  Rather international standards for meaningful involvement ought to be developed on top of what may pass for state standards. In that context, Work Stream 5 may fail of its purpose in the absence of the imposition of a strong responsibility on states and enterprises to develop effective and respective mechanisms for assessment and accountability that is transparent and that can be used to augment any program of meaningful involvement.

With respect to the application and development of non-state based non-judicial grievance mechanisms the Penn State CSR Lab offers examples of their work considering the operation of the following enterprises: Norsk Hydro ASA (Norway); Archer Daniels Midland Co (U.S.);  CitiGroup (U.S). Taken together, they suggest both the dynamic progress undertaken by some large multinational enterprises, but also the work that must be undertaken to better align these individual efforts to the overall structures and points of focus being developed through the ARP III framework.

The Report ends with the offer of eight (8) recommendations directed to the OHCHR and the ARP III team.

The ARP III Report provides an excellent and useful framework for guidance to those enterprises and stakeholders who are working toward the creation and operation of effective non-state based non-judicial grievance mechanisms.  The Report as it stands provides an excellent roadmap for further work and serves as model of its kind. It was with that in mind that the Penn State CSR Lab offered this Report to the ends of making those suggestions that might be of some value for the finalization of the ARP III report, and perhaps more importantly, for helping to shape the work that ARP III points toward.

II. Background

The United Nations Accountability and Remedy Project (ARP) was developed through a strongly backed initiative of the Office of the High Commissioner for Human Rights (OHCHR). It grew out of the notion that remedial rights ought to serve as a core tenet of the international human rights system. OHCHR saw in the UN Guiding Principles on Business and Human Rights (endorsed 2011) the basis for the elaboration of structures through which victims might have access to more effective remedy. At the same time, OHCHR understood the extensive gap that existed between the aspirations and its realization in the everyday conduct and operations of states, enterprises, and the civil society community.

However, extensive research has shown that in cases where business enterprises are involved in human rights abuses, victims often struggle to access remedy. The challenges that victims face are both practical and legal in nature. To begin to address these challenges, OHCHR launched the Accountability and Remedy Project (ARP) in 2014 with a view to contributing to a fairer and more effective system of domestic law remedies in cases of business involvement in severe human rights abuses. (OHCHR Accountability and Remedy Project: Improving accountability and access to remedy in cases of business involvement in human rights abuses).

ARP has now proceeded through two completed phases pursuant to multiple mandates from the Human Rights Council (Resolutions 26/22, 32/10 & 38/13). The aim of each is to provide credible, workable guidance to States (principally)  and collaterally to enterprises and civil society actors, to enable each to adopt behaviors, systems, and approaches more consistent implementation of the UN Guiding Principles on Business and Human Rights in the area of access to remedy.

Phase one, ARP I: Enhancing effectiveness of judicial mechanisms in cases of business-related human rights abuse, commenced in 2014 pursuant to a UN Human Rights Council Mandate. It’s work was completed in 2016.  Phase two, ARP II: Enhancing effectiveness of State-based non-judicial mechanismsin cases of business-related human rights abuse, had its start on 30 June 2016 with the adoption by the Human Rights Council of Resolution 32/10. Its final report was submitted and presented at the Human Rights Council’s thirty-eighth session in June 2018.

On 6 July 2018, the Human Rights Council adopted consensus resolution 38/13. Among other things, it requested OHCHR commence work on a third phase of the Accountability and Remedy Project (ARP III). The core objective set for the ARP III project was ““to identify and analyse challenges, opportunities, best practices and lessons learned with regard to non-state-based grievance mechanisms that are relevant for the respect by business enterprises for human rights, . . . and to submit a report thereon to be considered by the Human Rights Council at the 44th session.” (OP 9). 
The OHCHR started its work on this mandate in an initial paperwith two principal objectives, both tied to a close examination of non-state based non-judicial remedies.  The first was to provide preliminary assessment of current practices and challenges with a mind toward enhancing access to remedy.  The second was to be serve as the practical expression of the themes and issues identified in the first.  That is, the paper was to identify the scope, work streams and set out a preliminary program of work for the implementation of ARP III.

The initial paper put forward its approach to an appropriate scope of the research (including a typology of mechanisms).  I have spoken to this issue generally elsewhere (e.g., Effective Remedy and Accountability Through Non-State Non-Judicial Mechanisms: How Typology Matters). It then suggested a set of proposed priority issues to be addressed in the course of ARP III.  On that basis the initial paper proposed a set of research methodologies to be employed during the course of work on ARP III. It then suggested a general timetable and work plan, including extensive time for broad consultation, data gathering, and analysis.

The research methodologies revolved around a proposed set of five (5) workstreams. Work stream 1 was to focus on practical steps that grievance mechanisms (however those may be understood or approaches according to adopted typologies) can take to meet the “effectiveness criteria” of UNGP 31. Work stream 2 was to develop an understanding of the interface between the work of non-State-based grievance mechanisms and the powers and functions of State-based institutions. Work stream 3, then, was to develop a better understanding of the manner in which companies and other organizations use non-State-based grievance mechanisms to work together to improve the prospects for effective remedy. Work stream 4 was to focus on safeguarding rights-holders, human rights defenders and others from retaliation and intimidation.  Lastly, Work stream 5 was to turn to the always complex and difficult issue of meaningful stakeholder involvement in the design and implementation of remedial outcomes.

The initial paper received feedback received from a wide variety of sources, including a two-day, multi-stakeholder expert meeting held in Geneva in September 2018. A final version, ARP III Paper on Scope and Programme of Work, 1 November 2018, incorporating this feedback was distributed at the beginning of November 2018 and in time for further feedback to be received during a meeting OHCHR is organizing on Thursday, 29 November in Geneva, following the UN Forum on Business and Human Rights.

It is expected that during this meeting, the OHCHR will present the five work streams it intends to focus on during the course of ARP III and will invite participants to discuss how best to approach each work stream, including with respect to potential collaborations. Information on the September and November events may be found below.

The Office is currently undertaking substantive work on ARP III in accordance with the mandate of resolution 38/13 and the above-mentioned paper. Updated information and documents related to ARP III will be posted on this webpage as they become available.

III. The Penn State CSR Lab and Objectives of this Report.

The Penn State CSR Lab is an informally constituted collective of graduate students undertaking the study of corporate social responsibility.  They include Law Students and graduates seeking the LL.M. degree at Penn State Law, State College Pennsylvania, under the guidance of Larry Catá Backer. The students represent diverse backgrounds and are from the North America, Europe, Asia, and Africa.  They have undertaken the quite specific examination of the development and operation of the norms, policies, structures and delivery mechanisms of a set of six multinational enterprises, and the states in which their apex organizations are located. The object was to map the operation of enterprises, within the network of states and production chains within which they operated, to understand the scope and application of the normative structures of social responsibility embedded in each, and to analyze the ways these enterprises operationalized their responsibilities throughout their production chains and within the multi-state context on which such responsibilities must be delivered.   

The work of the Penn State CSR Lab is particularly germane to the objectives of the OHCHR meeting of 29 November respecting the development of practical, globally relevant and readily implementable systems of non-state based non-judicial mechanisms. From their work, it is possible to better understand the way that enterprises, especially well-meaning enterprises, have now begun to try to adopt non-state based non-judicial remedial mechanisms in the spirit of the UNGPs, as well as the opportunities and challenges those efforts have produced to date. These observations of the actual contemporary efforts of enterprises to forge new and effective mechanism, it is hoped, may prove to be of some value as experts consider the five Work Streams that make up the heart of the ARP III project.   

IV. General Observations About the Work Streams

With respect to the five Work Streams, the Penn State CSR Lab noted the following.  

A. Work Stream 1: Practical steps that mechanisms can take to meet the “effectiveness criteria” of UNGP 31.

CSR Labs agrees that UNGP 31 and its criteria ought to serve as the central and organizing element of any project of non-state non-judicial grievance mechanisms. However, with respect to Work Stream 1, substantially more work must be undertaken to produce more effective guidance on the way in which the several criteria of UNGP 31 might be rationalized and connected to specific practice.  

The problem is simple enough to state—UNGP 31 offers an undifferentiated list of criteria, each thought to be important enough to include as an element of effectives. This poses two problems. The first is that the undifferentiated criteria each are themselves in need of development on an “as applied” basis. Each of these criteria touch on some of the most sensitive issues of political organization within many of the states in which enterprise separate. And the approach of political bodies to the meaning and operationalization of these terms may differ as amongst each other and more importantly may deviate in some respect from global consensus. The second is that taken together there is no useful methodology for aiding enterprises in the delicate work of putting the criteria together for the construction of a system of grievance mechanism. Ironically, this very list provision by its undifferentiation poses as much of a tarp as it serves as a basis for good constriction of effective (within the meaning of UNGP 31) systems. Lists are notoriously weak building blocks for systems.  It is to the development of systems from lists that Work Stream 1 might most usefully serve. As it stands

As it stands, the approach to UNGP 31 runs the risk that its criteria may not be integrated and applied as a networked whole. Particularly concerning are the methodologies that in emphasizing some of the criteria may effectively marginalize or distort others.  Enterprises now are free either to pick and choose from among the criteria—at least with respect to emphasis—or to put them together in ways that may produce substantial differences in product (the grievance mechanisms themselves) even among enterprises operating in the same geographical space.  Most importantly, there are no touchstones for assessment, and no basis on which accountability measures may be imposed. Producing effective examples—at the operational level—of how systems can be created that give appropriate weight to each of the criteria, is essential. And yet it is nowhere to be found. Without some order, again, assessment and accountability remain unattainable, and the possibility of either abuse or inadvertent system failures (for lack of conformity to criteria) becomes more real.

B. Work Stream 2: Understanding the interface between the work of non-State-based grievance mechanisms and the powers and functions of State-based institutions.

Penn State CSR Lab agrees that the interface between state and the enterprise is a central concern. It notes the value of understanding the interface between on state non-judicial grievance mechanisms and those of the state. At the same time, Penn State CSR Lab worries that a focus on the regulatory ecosystem suggested in ARP III may both distort and marginalize the work of its principal focus.  There is a fear that shifting the gaze from the enterprise to the state may prove distracting (e.g., which state in a system organized globally), and might undermine the autonomy of the Pillar II enterprise responsibility by subsuming them within state mechanisms and limiting the scope to state based rights (and remedial preferences) only.

Distortion potential is particularly acute where (no doubt inadvertently) the focus on state interface veils the critical importance of state system overlap that are central to grievances touching on the concerns of multiple public and private actors.  State interface that fails to confront the issue of polycentricity—the possible application of the law and state mechanisms of multiple states simultaneously because the source of the grievance may be located in a variety of places (simultaneously) and because the locus of the enterprise may be deemed to exist (simultaneously) in multiple locations requires careful consideration. Perhaps the model of global arbitration might prove helpful.  But this is very much a work in progress that bears careful monitoring by the OHCHR for its (inadvertent) potential for abuse. More likely what may result is confusion.  And in the wake of confusion may come a reluctance to offer non state based non judicial grievance mechanism that might otherwise be effective from the point of view of rights holders (even if less so from the point of view of states). This last point touches as well on an underexplored connection between the implications of this workstream and workstream 5.

More importantly, it tends to conflate and compress the rich and complex network relationships in the private sector from out of which non-state non-judicial grievance mechanisms that may effectively reduce downstream (and mostly global South private actors) to invisibility. It may marginalize where the focus on the state reduces both internal mechanisms and mechanisms developed to provide remedy without outsider stakeholders to contingent and peripheral function. At its limit, such a connection runs the risk of reducing non-state based non judicial mechanisms to a formality perhaps most useful for fact finding.   Penn State CSR Lab worries that while the focus of the workstreams is on the apex states and their apex enterprises, the critical and important role of states and enterprises lower on the production chain may be marginalized in ways that eviscerate the effectiveness of remedy where they count most—usually well below the level of apex states and enterprises.  Our work with such enterprises suggests the need for guidance at the middle and lower levels, and effective and sensitive state interface, to ensure that operational mechanisms closer to the locus of grievance are adequately understood and operated.

C. Work Stream 3: Understanding how companies and other organisations can work together through non-State-based grievance mechanisms to improve the prospects for effective remedy.

Penn State CSR Lab commends the ARP III report for this section of the Report. It provides a wealth of useful structuring information that has operational level application. Penn State CSR Lab notes the value of inter-corporate cooperation and considers such mechanisms to be ultimately more useful than at present. It hopes for greater OHCHR efforts to develop guidance and encourage such mechanisms. Penn State CSR Lab draws attention to those mechanisms that offer a window on patterns of potential success (particularly in Bangladesh). It welcomes the scenarios as both useful and effective means of conveying practical insight.

However, Penn State CSR Labs notes that there is a role for international organizations to play in these inter-enterprise systems, one that might be elaborated in the APT III Report.  Penn State CSR Lab notes that incorporating mechanisms for the inclusion of international organizations in the structures of these multi-corporate efforts might be useful, for example, the ILO.   Penn State CSR Lab also notes that additional fact finding would be most useful in not just mapping these structures but also in analyzing their effectiveness. Lastly, it notes that these are structures and operations that lend themselves particularly well to accountability mechanisms and transparency.  They also provide a basis for the development of an informal jurisprudence that may effectively contribute to the evolution to the cultures and traditions of business activity that might in turn change behaviors (see, e.g., with respect to the OECD NCP special instance procedures: Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations).

D. Work Stream 4: Safeguarding rights-holders, human rights defenders and others from retaliation and intimidation.

Penn State CSR Labs notes the heavy burden of duty that falls on States in this respect.  It regrets the need for the inclusion of this Work Stream.  To some extent this Workstream suggest the relevance of privatizing this function and of the governmentalization of enterprises in the wake of the inability of states to adequately undertake their duties either under their own constitutional systems or pursuant to their international law-based obligations. Yet that is also a cause for concern.  To the extent that this Workstream effectively deputizes enterprises to undertake duties traditionally undertaken by states in the context of the exercise of their police powers, then it poses substantial risks to enterprises.  The workstream might usefully underline those risks, complicity especially, with state and non-state actors with effective control over territories where these activities occur. Penn State CSR Lab wonders, for example, how enterprises might reconcile the duty to avoid interference with political rights with the obligation to ensure respect for international human rights in specific contexts. Greater guidance here is likely quite useful.

Penn State CSR Lab notes the great distinction between the risks of safeguarding in that larger context, from the responsibility of enterprises to provide as safe and protected work place for is employees and to ensure that it does not interfere with the exercise of rights by people. However, again, the exercise of those civil and political rights (as understood at the international level) may well constitute a gross violation of the rules of the domestic legal orders in which the enterprise operates. It is to those interface issues that the workstream might provide advice and toolkits for the constriction of grievance mechanisms they may oversee.

Lastly, Penn State CSR Lab notes with alarm that such failure in this respect may well impact the ability of States to serve as effective partners in Work Streams 2 and 3. Lastly, it notes the challenge of avoiding domination by large and powerful states on the development of the rules and structures in this area.  To that extent, consideration of this Workstream cannot be undertaken without a sensitivity to the insights of Workstream 5.

E. Work Stream 5: Meaningful stakeholder involvement in the design and implementation of remedial outcomes.

Penn State CSR Lab notes the great challenge posed by a responsibility for meaningful involvement.  At a base level, Penn State CSR Lab understands meaningfulness to be a function of the relationship between enterprise and stakeholders. That suggests that the community of interested persons (and the character of their values) will vary widely from enterprise to enterprise and within enterprises depending on location.  Yet it is not clear that enterprises might be protected in tolerating such wide potential differentiation in the design and implementation of non state based non judicial grievance mechanisms. Indeed, if accountability measures conflate all such measures and subjects them to a single standard, then the ARP III project will create a contradiction from which there is no solution. The middle ground—a quite clearly specified management of the boundaries within which variance is permitted, and the criteria justifying such variation (perhaps here tied to the Workstream I UNGP 31 constraints). Might appropriately be constructed.   

Penn State CSR Lab notes that the foundational issues respecting engagement remains unresolved.  This is especially the case where individuals are clothed with representative authority.  Enterprises require guidance with respect to rules for the recognition of the capacity and legitimacy of representative authority.  And they ought to expect protection for good faith reliance.  At the same time, enterprises likely will have to build robust systems of data gathering and assessment with respect to such issues where the position of representatives is fluid and the extent of their authority quite contingent.

Penn State CSR Lab also notes that enterprises ought not to be held to the standards of states, many of which have yet to attain a full embrace of meaningful involvement within their own territories.  Penn State CSR Lab suggests that, following the UNGP Pillar II framework, it may be necessary to guide enterprises in the application of international standards for meaningful involvement ought to be developed on top of what may pass for state standards. In that context, Work Stream 5 may fail of its purpose in the absence of the imposition of a strong responsibility on states and enterprises to develop effective and respective mechanisms for assessment and accountability that is transparent and that can be used to augment any program of meaningful involvement.

V. The Operation of Non-State Based Non Judicial Mechanisms—Examples

With respect to the application and development of non-state based non-judicial grievance mechanisms the Penn State CSR Lab offers examples of their work considering the operation of the following enterprises: Norsk Hydro ASA (Norway); Archer Daniels Midland Co (U.S.);  CitiGroup (U.S). Taken together, they suggest both the dynamic progess undertaken by some large multinational enterprises, but also the work that must be undertaken to better align these individual efforts to the overall structures and points of focus being developed through the ARP III framework.

Norsk Hydro ASA Report: Hydro is committed to the UNGP. To fulfill our obligation to provide an effective grievance mechanism for potentially impacted rights holders, we have created our own grievance mechanism in Brazil.  The advantage with such a mechanism compared to the traditional judicial process is first and foremost that it is more accessible to our stakeholders because it is free, gives them direct access to us as the responsible party and does not require them to get legal representation. In addition, there is the issue of our stakeholders not actually having a legal claim against us, because of lack of protective legislation in some of the countries we operate.

Archer Midlands Daniel Report: From information publicly available, ADM appears to have created efficient mechanisms for the filing of complaints. The administration of grievances has been given thought and focus, and is elaborate. The effect of the elaboration remains to be analyzed over the long term. The resolution mechanisms are not yet proven as efficient, but ambition is high and the fact that they make the summary table makes for higher incentives and transparency. The connection to the UNGP is tenuous, ADM’s grievance mechanisms are driven y its own business model and forms of engagement.

CitiGroup Report: Citi’s grievance mechanism outlined in Part 1 is best suited to inform the ARP III’s considerations within the scope of work stream 1. Work Stream 1: Practical steps that mechanism can take to meet the “effectiveness criteria” of the UNGP31. This section will analyze Citi’s grievance mechanisms under the lens of the effectiveness criteria for UNGP31 and offer suggested improvements the ARP III should consider when proposing practical solutions.  The ARP III should consider of number of areas when seeking to improve grievance mechanisms for human rights violations.

More detailed consideration follows for each in the Appendix below.

VI. Recommendations

The ARP III Report provides an excellent and useful framework for guidance to those enterprises and stakeholders who are working toward the creation and operation of effective non-state based non-judicial grievance mechanisms.  The Penn State CSR Labs is grateful to its authors and the OHCHR for the work and thought that has produced a Report that develops  many of the quite challenging issues in very useful ways.  The Report as it stands provides an excellent roadmap for further work and serves as model of its kind.

It was with that in mind that the Penn State CSR Lab offered this Report to the ends of making those suggestions that might be of some value for the finalization of the ARP III report, and perhaps more importantly, for helping to shape the work that ARP III points toward. And it is in that context that Penn State CSR Lab offers the following few modest recommendations:

1. Greater effort must be undertaken to connect the UNGP with emerging efforts to develop non-state non-judicial grievance mechanisms. 

2. Greater attention must be paid to the role of enterprises in the middle and lower levels of global production chains; there must be a balance between autonomy and control by apex enterprises.

3. Greater attention must be paid to the connection between accountability and such mechanisms; accountability must be understood in two senses, first with respect to the development of standards, and second with respect to the operation of such mechanisms. 

4. Technical assistance and education programs remains a central element with respect to which the OHCHR must exercise leadership; the worksteams will die on the vine without effect measures to ensure that they can be understood and undertaken by enterprises globally.

5. Greater attention must be paid to the systematization of the UNGP’s Paragraph 31 principles; the OHCHR with stakeholder input might undertake a project of fleshing out the categories in Paragraph 31 and providing guidance on how they fit together within appropriately created and operated mechanisms.

6. The issue of the protection of protecting rights holders and their defenders requires the development of substantially more effective mechanisms at the international level that might encourage states to undertake their duties in that regard, and on that basis to serve a legitimate function with respect to which enterprise activity will serve as a complement; the OHCHR ought to avoid governmentalizing enterprises in this respect.

7. The development of ARPIII mechanisms ought to be undertaken with substantial sensitivity to local context; to that end the OHCHR ought to encourage the development of guidelines to aid enterprises in recognizing and providing effective mechanisms that are compatible with local conditions; this includes respect for different political and social systems within which enterprises may operate. 

8. Greater transparency appears to be a vital key element to the effective operation of these systems; the OHCHR ought to encourage the development of guidance for the reporting of grievance mechanisms, and their use in ways that might respect privacy but which also serve to enhance the development of cultures of appropriate behavior by enterprises and their stakeholders, as well as by states.  



APPENDIX:
Enterprise Reports

Archer Daniels Midland Co (U.S.)

OHCHR Accountability and Remedy Project  - ARP III

·      How can one raise Questions and Concerns at ADM?
-       Bottom Up Strategy of Information Processing 
-       ADM Offers several communication channels to administer complaints
à Internal
o   Local resources, such as supervisors, managers or human resources professionals
o   In some locations, appropriate representatives selected by colleagues such as labor unions and works councils
à External
o   Welcomes correspondence from any external parties, including individuals, government organizations and non-governmental organizations, regarding the implementation of and compliance with ADMs Commitment to No-Deforestation and the Human Rights Policy. Any concerns can be sent to responsibility@adm.comor compliance@adm.com
o   The ADM Way Helpline – Available 24h, 7 days a week (anonymity possible when legal) https://admway.alertline.com/gcs/welcome.  

       
           
·      What can one make a complaint about?
o   Law
o    Breaches of ADM's Social and Environmental Corporate Policies

              



·      ADM’s Code of Conduct and main internal Human Rights documents are based upon:
àInternal
o   ADM Supplier Expectation Guidelines < https://www.adm.com/our-company/procurement/supplier-expectations>
à External
o   International Labour Organization (ILO) Conventions 29, 105, 138 and 182
o   United Nations (UN) Universal Declaration of Human Rights
o   UN Guiding Principles on Business and Human Rights
o   UN General Assembly Resolution A/RES/64/292


                        

·      Supplier-Related Issues
-       https://assets.adm.com/Our-Company/Procurement/SupplierExpectations.pdf
o   Individuals with concerns about supplier-related issues are encouraged to contact the ADM Helpline at www.theadmwayhelpline.com, or call any of the designated numbers listed in the column posted at < https://www.rspo.org/acop/2016/archer-daniels-midland-adm/P-Policies-to-PNC-laborrights.pdf >
o   Suppliers may direct questions or report concerns to ADM via postal mail: P.O. Box 1470, Decatur, IL, USA 62525; email: compliance@adm.com; telephone: +1-800-637-5843 ext. 4929; or online: www.theadmwayhelpline.com. Reports may be made anonymously where permitted by law
·      ADM commitment to Supplier-Related Issues
§  If learnt that any supplier does not satisfy the principles or misrepresents the conditions under which crops, goods or services have been produced, ADM will take appropriate action. If that supplier does not demonstrate a good-faith effort to address issues in a timely manner, those actions may include exclusion from new direct contracts or the termination of our relationship.
·      Making an complaint either through the alertline or through other channel:
·      How Does ADM Handle Reports?
o   ADM’s Law Department and Compliance Office are responsible for taking prompt and appropriate action to investigate reports of possible ethical or legal misconduct. ADM will keep details of investigations confidential to the maximum extent possible, consistent with resolution of the issue and in compliance with applicable laws.

·      Outsourced Administration and Grievance Mechanisms

·      ADM will respond to communication in accordance with the workflow in their protocol
·      Their Grievances and Resolutions aspirations are depicted in below chart
·      ADM Grievances and Resolutions Summary Table
-       ADM’s Grievances and Resolution Summary Table is made public. All complaints that are deem to be of public character are posted there together with actions taken

·      ADM Human Rights Action Plan 2018-20
-       To proactively track and contribute to resolving grievances using the Grievance and Resolutions Mechanism
-       See Human Rights Progress Report 2018 < https://assets.adm.com/Sustainability/2018-Progress-Report-Human-Rights-Policy.pdf>



·      Conclusions
à ADM has created efficient mechanisms for the filing of complaints
à The administration of grievances has been given thought and focus
à The resolution mechanisms are not yet proven as efficient, but ambition is high and the fact that they make the summary table makes for higher incentives and transparency


Norsk Hydro ASA
Introduction - Norsk Hydro ASA – Key Facts

Norsk Hydro ASA is a Norwegian industry company established in 1905.[1]Hydro´s headquarter is located on Oslo in Norway.[2]Hydro´s main production is bauxite, aluminum and energy production.[3]We sell products all the way through the production, serving more than 30 000 customers.[4]More than 35 000 people work at Hydro,[5]and we operate in more than 41 countries on all continents.[6]The main production is in Brazil, Qatar, Germany, Norway, Slovenia and Canada.[7]

Brazil is Hydro's main source of the important raw material bauxite and is the country where the company has the most employees - or more than 5,000 if long-term contractors are included. Hydro Brazil conducts large mining operations to extract bauxite and refine Alumina. The operations in Brazil impact the local population to a greater degree than at our other production sites. This is why we have developed a local grievance mechanism in Brazil, which will be a prototype for a company-wide grievance mechanism.

Hydro and UNGP Grievance Mechanisms - Reflections
Hydro is committed to the UNGP. To fulfill our obligation to provide an effective grievance mechanism for potentially impacted rights holders, we have created our own grievance mechanism in Brazil.[8]The advantage with such a mechanism compared to the traditional judicial process is first and foremost that it is more accessible to our stakeholders because it is free, gives them direct access to us as the responsible party and does not require them to get legal representation. In addition, there is the issue of our stakeholders not actually having a legal claim against us, because of lack of protective legislation in some of the countries we operate. For us there is an economic advantage in being able to settle disputes and provide reparation without costly legal processes. Furthermore, one can assume that a judicial process would get greater media coverage and cause more reputational damage than settling things directly and more privately. The UNGP points to advantages such as “speed of access and remediation, reduced costs and/or transnational reach”.[9]

Our grievance mechanism in Brazil was introduced in 2014[10]and is called Canal Direto.[11]  It is available from our Brazilian web pages, by phone or email.[12]To inform our stakeholders about the solution when it first was launched, we held information meetings about it and handed out flyers in the local communities in Bacarena and Paragominas.[13]We also used the local radio as a way of informing our stakeholders of the Canal Direto.[14]As of today, in informing affected third-parties of this means of giving complaints we are using open meetings, newsletters and our website.[15]  The Canal Direto is a channel where the public can register complaints, doubts, compliments or suggestions, anonymously if so is preferred.[16]Grievances may be of any kind, including social or environmental issues.[17]We received approximately 100 complaints in 2017, most of them related to environmental issues.[18]The local CSR division was responsible for addressing these complaints.[19]

The Danish Institute of Human Rights has, in its report from 2017, recommended that we the
 Use the results of the Canal Direto pilot to develop a global mechanism for both communities and others to raise concerns to Hydro on the impacts of operations. This should be communicated to all business partners, including suppliers and JV partners and be published on Hydro’s website.[20]
In regard to our responsibilities under the UNGP we realize that such a mechanism should be developed and in place.[21]However, the exact obligation of businesses in this regard can be said to be unclear under the UNGP. First of all, it is unclear whether or not businesses must provide a grievance mechanism themselves or if other available alternatives are sufficient, either state-based or non-state based. Businesses are required to “provide for or cooperate in” remediation of any adverse impacts they are responsible for.[22]This obligation can be met by providing operational-level grievance mechanisms.[23]The wording of UNGP principle 29 indicates that it is up to the discretion of the company whether or not to provide such a mechanism.[24]Businesses “should” either “establish” or “participate in” such mechanisms.[25]Given that Hydro can be brought before the National Contact Points established under the OECD Guidelines for Multinational Enterprises, the obligation under the UNGP can be said to be met. The NCPs are such operational-level grievance mechanisms and the Norwegian NCP, as an example, strives to be in accordance with the effectiveness criteria for non-judicial mechanisms in UNGP principle 31.[26]Hence, Hydro is participating in such mechanisms in accordance with UNGP principle 29.[27]

In attempting to go beyond our minimum obligations we are however currently working on a group-wide solution, inspired by the mechanism in Brazil.[28]The responsibility for a development of a worldwide mechanism lies with Corporate CSR.[29]The work is a bit on hold at the moment, since we are waiting for clarifications as to what kind of solution we will be in need of to cover the entirety of what we want to achieve.[30]Canal Direto is based on a system delivered by a company called Darzin.[31]The company delivers a number of solutions that we will now be testing to determine what will be best suited as a global solution for Hydro and our stakeholders.[32]As mentioned, the UNGP has a number of effectiveness criteria for non-judicial grievance mechanisms, but yet the concrete features that such a mechanism must have is unclear.[33]This is the second challenge in regard to the UNGP. The expectation is that a grievance mechanism is to be legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and based on engagement and dialogue.[34]The principle’s wording is broad, giving few concrete guidelines in the development of a solution. We are unaware of any clear global consensus as to the obligations under the UNGP in this respect, but are aware that the UN currently is working on the development of guidelines in the establishment of operational-level grievance mechanisms. Our recommendation is to keep track of this work and take any recommendations into account when we develop the worldwide solution for Hydro.

Our experience from the last year in respect to our current mechanism in Brazil is that most of our stakeholders wish for more direct contact with us by phone or in meetings, rather than through the Canal Direto.[35]Therefore, our experience with this particular solution is a bit mixed as of today.[36]In Paragominas an important part of the work that has been done has rather been to establish forums for having such direct contact with the local stakeholders.[37]This is the background for our establishment of the Sustainable Bacarena Initiative, which is a multistakeholder platform designed to facilitate greater inter-communal cooperation and dialogue.[38]

Another problem with the mechanism in Brazil as of today might be that we are not particularly transparent as to what type of remediation a stakeholder might achieve by contacting us through the Canal Direto. We do not provide much information on the website as to whom the complaint will be received by, how long the processing time of a complaint is or what procedures we follow in assessing any adverse impacts and the sufficient remedy for such impacts.[39]




CitiGroup

PART I: UNDERSTANDING CITIGROUP’S GRIEVANCE MECHANISMS
Whistleblower Program
The Ethics Hotline for whistleblowers was created in light of a number of regulatory issues in 2005. That year Citigroup was involved in large-scale scandals on three continents involving unethical business practices including a high profile bond trading debacle in Europe, loss of its private banking license in Japan, and the US the WorldCom and Enron scandals as it was one of the big firms in the global settlement with regulators over conflicted stock research (which cost the firm over $5.5 billion in fines).  In response, Citi’s CEO at the time, Charles Prince immediately required mandatory ethics classes for all employees. Prince also worked with his executive team to enact long-term preventative measures. Their key objective was to strengthen Citi’s independent controls and the control environment throughout the company to grow responsibility, minimize, mistakes, and to ensure that when mistakes occur, they are handled appropriately. To accomplish that, Citi created an independent compliance unit which reports poor results on audits and regulatory and risk-control tests regularly directly to the CEO. Additionally, all employees are required to complete annual ethics training. Lastly, Citi created an “ethics hotline” where employees can raise issues anonymously.
There are multiple avenues through which employees can raise issues. They include: their manager or other members of management, their human resources or labor relations representative, internal legal counsel, a designated compliance officer and all members of the Ethics Office. However, when Sherry Hunt utilized these avenues and they yielded no results, she was forced to turn to litigation.
Sherry Hunt blew the whistle on one of the world’s largest banks and won. In 2004, at the height of the housing boom, Hunt started a new job as quality-control manager at CitiMortgage. It was Hunt’s duty to inspect the loans Citi planned on buying or underwriting, making sure they were good investments, and to protect the company. Even with the 65 mortgage inspectors working under her, it was impossible to check every loan every time. Over the next two years, Hunt noticed the bank’s standards slip. It was underwriting loans with sloppy paperwork or missing signatures, and extending loans to people who would never be able to pay them off.
In 2012, investigators would claim that more than 30 percent of the Department of Housing and Urban Development–insured loans that CitiMortgage underwrote or sold since 2004 — 9,636 of them — would default, costing nearly $20 million in insurance claims. But at the time, Hunt remained dutiful: For each problematic loan that crossed her desk, she followed protocol, put it in her report, and sent it upstairs. By 2007, Hunt estimates that a full 60 percent of the loans Citi was processing were at least missing some type of documentation. Still, her superiors didn’t seem concerned. Her direct boss, Richard Bowen, did take the mounting deficient home loans seriously. He even sent an email to his superiors with the subject line “URGENT — READ IMMEDIATELY — FINANCIAL ISSUES.” For his troubles, Bowen was gradually stripped of his responsibilities and fired in 2009.
For doing her job, Hunt’s bosses at Citigroup started making Hunt’s life as miserable as they could. Hunt had begun recording everything she saw on her home computer — every bad loan, every email from her superiors telling her to keep the defective loan rate low. Hunt reported these incidents to the Human Resources department and the Ethics Office, both of which failed to provide a remedy or even feedback. Finally, Hunt hadhad enough. As the Vice president and chief underwriter at CitiMortgage, she quit her job, blew the whistle, and decided to take the world’s largest bank to court — a Manhattan federal court in 2011. With a computer full of evidence, she gifted the Justice Department a near-perfect case.
The DOJ’s complaint against Citi was damning: Since 2004, Citi has endorsed nearly 30,000 mortgages for FHA insurance, totaling more than $4.8 billion in underlying principal obligations. Of those loans, 9,636 (or more than 30% percent) have defaulted. Citi’s default rate soared to more than 47% for loans originated in 2006 and 2007. In other words, nearly every other loan Citi endorsed for FHA insurance in the critical years leading up to the financial crisis defaulted, resulting in foreclosures and evictions and ultimately depressed real estate values, all to the detriment of the national housing market and the national economy.
The result of this litigation was a new Code of Conduct. In October 2017, Citi issued a new employee Code of Conduct which outlines the standards of ethics and professional behavior expected of employees whilst also illustrating how employees can make ethical decisions through a decision-making guide. Most notably, the new Employee Code of Conduct creates an affirmative duty to report using the language: “If you have reason to believe that any Citi employee, or anyone working on our company’s behalf, may have engaged in misconduct, you have a duty to our colleagues and to Citi to promptly report your concerns.…”
Ethics Hotline
Citi believes it essential that individuals feel secure when raising a concern, and it encourages individuals to communicate concerns openly. All contact to the Citi Ethics Office and related investigations are treated as confidentially as possible, consistent with the need to investigate and address the matter, and subject to applicable laws and regulations.
Employees, customers, and third parties may raise or escalate concerns through the ethics hotline when they suspect or become aware of a possible violation of a law, regulation, Citi policy, or the Citi Code of Conduct. The Citi Ethics Hotline is available twenty four hours per day, seven days a week staffed with live operators who process submissions in English, Arabic, Chinese, French, German, Japanese, Polish, Portuguese and Spanish. Reporting is also available through a dedicated email, physical mailing address and fax number.
Concerns may be raised anonymously via any of the channels listed above to the extent permitted by applicable laws and regulations. If reporters wish to report anonymously, the operator will alert the reporter not to identify their name or other identifying information when submitting their concern. However, if the reporter chooses to remain anonymous and does not provide a means to be contacted, the Citi operator will make clear that Citi may be unable to obtain the additional information needed to investigate or address the concern.
The Ethics Hotline was originally created as an avenue for whistleblowers in place. In 2016 when Citi announced its new financing initiative, the Dakota Access Pipeline, it made the Ethics Hotline outward facing for members of the general public and third parties to report concerns. This action was taken to ease the burden of the customer service line, in response to the large volume of calls received.
Part II: APPLYING CITIGROUP’S APPROACH TO THE ARP III WORK STREAMS
            Citi’s grievance mechanism outlined in Part 1 is best suited to inform the ARP III’s considerations within the scope of work stream 1. Work Stream 1: Practical steps that mechanism can take to meet the “effectiveness criteria” of the UNGP31. This section will analyze Citi’s grievance mechanisms under the lens of the effectiveness criteria for UNGP31 and offer suggested improvements the ARP III should consider when proposing practical solutions.  The ARP III should consider the following areas when seeking to improve grievance mechanisms for human rights violations.
CITI’S STRENGTHS
Legitimate
Enabling trust from the stakeholder groups for whose
use they are intended, and being accountable for the fair conduct
of grievance processes;
Citi’s Approach: Citi’s primary grievance mechanism and the reports generated therein are reported to shareholders during annual meetings;


Accessible
Being known to all stakeholder groups for whose use
they are intended, and providing adequate assistance for those
who may face particular barriers to access;

Continuous Learning
Drawing on relevant measures
to identify lessons for improving the mechanism and preventing
future grievances and harms;


CRITERIA TO CONSIDER IN IMPROVEMENT
Predictable
Providing a clear and known procedure with an
indicative time frame for each stage, and clarity on the types
of process and outcome available and means of monitoring
implementation;
Citi’s Approach: Citi currently provides no information on timeframes, processes, and potential outcomes through its grievance mechanism - the ethics hotline. The ethics hotline offers little recourse for both the general public and whistleblowers beyond merely providing an opportunity to report.  This information helps Citi respond to potential violations and stop human rights or other violations before they reach the level of scandal but does nothing to remedy reported grievances in the form of restitution or damages.

Suggested Improvement: The ARP III should encourage companies to create grievance mechanisms with clearly defined stages, provide what the grievant can expect at each stage, and an approximate timeframe for an outcome in that stage. For example, Citi could include an escalation stage, an investigation stage, and an implementation or action stage with a description estimated timeframes and clear outcomes at each stage.
Equitable
Seeking to ensure that aggrieved parties have
reasonable access to sources of information, advice and expertise
necessary to engage in a grievance process on fair, informed and
respectful terms;
Citi’s Approach: Citi’s ethics hotline falls short of being equitable under the effectiveness criterion for UNGP31 because it only provides for information to be received. While access to the ethics hotline is convenient and readily available (see “Accessible” above) grievants are only able to call to provide information, there is no mechanism to receive information, advice, and/or expertise.

Suggested Improvement: The ARP III should encourage companies to adopt grievance mechanisms that provide information, advice, and expertise in addition to collecting information from grieving parties.
Transparent
Keeping parties to a grievance informed about
its progress, and providing sufficient information about the
mechanism’s performance to build confidence in its effectiveness
and meet any public interest at stake;
Citi’s Approach: The ethics hotline collects more information from grieving parties than it provides. Once an incident is reported to Citi there is little additional communication or dialogue.  Grieving parties must blindingly trust, without any evidence from Citi, that internal investigations are taking place and that concrete action will be the result. Even in best case scenarios where this does occur, the grieving party is not made aware nor is any kind of remedy provided for reported harm.

Suggested Improvement: Consistent with the suggested improvement regarding predictability, the ARP III should encourage grievance mechanisms that continue to provide the grieving party with sufficient information about that stage of the process. While, for example, specific details of an internal investigation need not be provided a simple update that an investigation is being conducted and an estimated timeline for an outcome is likely to build confidence and create transparency.
Rights Compatible
Ensuring that outcomes and remedies accord
with internationally recognized human rights;
Citi’s Approach: Citi’s ethics hotline is aimed at collecting information, investigating, and ending those violations. There is no information provided on how well Citi is performing that function. The hotline is not focused on outcomes and remedies and it does not specifically address human rights.

Suggested Improvement: The ARP III should encourage companies to create grievance mechanisms that do more than provide for reporting violations and collecting information. While reporting is crucial in recognizing and stopping human rights violations it provides no remedy or relief for violations that have already been committed.

III. KEY CONSIDERATION
            While Citi’s grievance mechanisms are accessible and legitimate, they may appear to fall short of providing any real remedy to aggrieved parties. The Ethics reporting and investigation function is contained within the Environmental and Social Risk Mitigation or “ESRM” Framework. In 2017, ESRM screened 328 transactions and out of those, 27 were flagged as requiring enhanced due diligence for human rights risks related to indigenous people, labor, resettlement, security practices and water.
Citi states, “as a financial institution, their approach to remedy usually involves working with clients to ensure they have the right policies in place and channels available to enable victims to lodge grievances.” This description is quite intentionally, nondescript. By way of remedies, Citi asserts (1) it has updated its ESRM policies to fill in the governance gaps between legal requirements in developed countries, where present, and international human rights norms; (2) by becoming a member of the Roundtable on Sustainable Palm Oil taskforce “RSPO” they have helped upgrade the labor provisions and standards; and (3) helped finance the construction of an infrastructure project in the Middle East, bringing in an influx of 100,000 migrant workers.
Although commendable, efforts that do nothing more than collect information (usually for their own purposes in the form of preventing PR scandals and legal/financial liability) should not be treated as a legitimate grievance mechanism when they function merely as a data collection tool for companies. In order to meet the effectiveness criteria of UNGP31 non-state, non-judicial grievance mechanisms must be aimed at providing meaningful remedy in the form of damages, restitution, resolution, etc. Additionally, these mechanisms should be designed to provide grieving parties with information, advice, expertise, and outcome expectations.
           













[4]https://www.hydro.com/en/products/all-products/ (26.08.2018)
[8] Annual Report, Board of Directors Report page 27
[9] Commentary on UNGP principle 28
[10] Annual Report, Board of Directors Report page 27
[12] Annual Report, Viability performance page 92
[13] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[14] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[15] Annual Report, Viability performance page 92
[16] Annual Report, Board of Directors Report page 27
[17] Annual Report, Viability performance page 92
[18] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[19] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[20] Danish Institute’s Report page 29
[21]See UNGP principle 29
[22] UNGP principle 22
[23] Commentary on UNGP principle 22
[24] UNGP principle 29
[25] UNGP principle 29
[27] UNGP principle 29
[28] Annual Report, Board of Directors Report page 27
[29] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[30] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[31] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[32] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[33]See UNGP principle 31
[34] UNGP principle 31
[35] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[36] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[37] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018
[38] E-mail from CSR Manager Nina Schefte at Hydro to Heidi Egeland from 11/12/2018


14-Introducing "Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era" ("From Ideology to Cuban Constitutional Reform")

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I reported the publication of Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press 2018; ISBN: 978-1-949943-00-9 (pbk); I SBN: 978-1-949943-01-6 (ebk)) (here). Cuba’s Caribbean Marxism is the first offering through Little Sir Press, a self-publishing collective that is a new project in broader knowledge dissemination of the Coalition for Peace & Ethics (more about that project here). Join us! 

https://images-na.ssl-images-amazon.com/images/G/01/SellerCentral/legal/amazon-logo_black.pngCuba’s Caribbean Marxism eBook may be accessed through these sites:


  https://www.kobo.com/us/en/ebook/cuba-s-caribbean-marxism-essays-on-ideology-government-society-and-economy-in-the-post-fidel-castro-era   


Paperback ordering information to follow. Individual Chapters also may be ordered in pdf format.

I promised that over the course of future posts I would be introducing readers to the book. This post completes that overview with an introduction to Chapter 12 ("From Ideology to Cuban Constitutional Reform"),  which follows below.  Here for access to other posts in this series.  HERE for the video recording of the launch event for Cuba's Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era, which took place 12 November 2018 at Penn State.




     
Chapter 12
From Ideology to Cuban Constitution Reform
     
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      The 2018 version of the Cuban Constitution was adopted in 1976 (the first after the 1959 Revolution) and last amended in 2002 (effective the next year). It is a constitution drafted in the fashion of the old Soviet constitutions of the post-Stalin era. It asserts the primacy of the Cuban Communist Party (PCC) and its organs. It grounds the social state (Sozialstaadt), that is in the state’s role in the protection and enhancement of economic and societal well-being, in the concept of continuous class struggle and a principle of formal equality of wealth. It rejects the neutrality and value of markets and of the private sector; it views the state as the means to achieve and protect the objectives for which the Cuban revolution was undertaken. It viewed culture, society and economics as expressions of politics that required a firm guiding hand. But most importantly, perhaps, it provides a strong expression of the role of the state in the promotion and protection of the principles and premises of Caribbean Marxism as the fundamental political philosophy of the state. Within that framework, it acknowledges the delegation of political authority to the PCC. 
       As a consequence, the constitution in Caribbean Marxist acquires a character that is in some respects fundamentally different from that of the constitutions in Western liberal democracies.  The 1976 Cuban Constitution was not meant to serve as the core organizing principle of political power and the constitution of a state apparatus through which it could be legitimately asserted.  Instead, the Cuban Constitution serves as the expression of the guiding political ideology of the state manifested in the construction of the administrative mechanisms through which it can be exercised under the guidance of the institutions of political power—the PCC within the structures of Leninism. This structure was conformed in the Conceptualizaciónand its focus on the role of the PCC as the apex institution of political authority.
Understood in its Leninist context, the role of constitutions becomes clearer. A Leninist state constitution is not a primary constitutive document. A Leninist state constitution does not organize and constrain power.  A Leninist state constitution is the means for memorializing the organization of a government.  The normative structures of that government, and the principles through which administrative power may be exercised and constrained, may be expressed in a Leninist state constitution.   This suggests that in Leninist political organization, the fundamental separation of powers is not between an administrative, judicial and executive function within a government that serves as a holder of all political authority.  Rather Leninist separation of power distinguishes between political authority, which is delegated to the Leninist vanguard party, and administrative authority that is vested in the apparatus of government. The model for this expression of 21st century political Leninism is China (Backer 2012). 
The relationship of the state constitution to the political constitution of the vanguard party (and holder of legitimate political authority) is straightforward: the state constitution is the highest external expression of the political line of the vanguard party and read in line with the principles through which the vanguard retains power. “So, the Constitution is the Communist Party line!” (Backer and Wang 2014, 313). “It follows that through the principle of adherence to the mass line, the CCP is obligated to form a government for the people, which has been accomplished through the promulgation of a written constitution. The Chinese constitution therefore reflects the official Party Line. The CCP is bound by its own party line—a fundamental tenant of the CCP as the party in power” (Ibid., p. 278). It is in this sense that one might speak to fundamental principles of “socialist legality”, for example as declared in the Cuban Constitution itself (Republic of Cuba 1976, art. 10).
The development of constitutionalism in Cuba appears to suggest a transposition of these emerging Chinese Leninist principles into the discourse of Caribbean Marxism. But the difference lies in the context in which Leninism  is applied. In Cuba, the political Leninism of state constitutionalism is also fundamentally molded by the concept of constant and active resistance to outside enemies (“of heroic resistance against all kinds of aggression and the economic war engaged by the government of the mightiest imperialistic power that has ever existed.” Republic of Cuba 1976, art. 3). The Cuban state constitution has been created for the operationalization of principal and its expression as the policy of the PCC in its role as the holder of all legitimate political authority within the national territory.  In keeping with Leninist theory, that political authority was contingent.  It required a continued fidelity by the vanguard (and its cadres) to the fundamental principles of Marxism, and it required the implementation of that Marxism in a way that was compatible with national conditions. These principles were written into the state constitution itself:
The Communist Party of Cuba, Martian and of Marxist-Leninist, the organized vanguard of the Cuban nation, is the superior leading force of the society and the State, organizing and guiding the common efforts aimed at the highest goals of the construction of socialism and advancement toward the communist society (Republic of Cuba 1976, art. 5).
Democratic elements were derived from the collectivity principle at the core of Leninism--and the organization of the state and its people would reflect this through the activities of a large variety of mass organizations, from a national legislative authority (arts. 3, 69 et seq.). to other organized collectives (Ibid., arts. 6 (mass youth organizations); art. 3 (popular sovereignty); art. 7 (mass and social organizations)). That, at any rate, is the theory--the attainment of which has to a greater or lesser extent eluded perfect implementation. 
       As such, Caribbean Marxism is driven by ideology, which finds expression in the great ideological documents that organizes the principles and structures of the political project the obligation for the attainment of which is left to the PCC. That ideology is then applied to the construction of the state through its organizing documents--the constitution and related text. Thus, as Chapters 2-5 suggested, the documents of state follow from the development of the principles derived from the ideology on which society is organized. As those principles are changed, that is, as ideology developed in light of movement from one historical stage to another, then the organizing documents of state must also be modified to reflect these developments.
       Over the arc of a long trajectory from the development of the Guidelines for reform of 2011 (Lineamientos) of the 6th PCC Congress (Partido Comunista de Cuba 2011), to the 2016 articulation of a new Conceptualization for the organization of politics, economics, and society  (Conceptualización del Modelo Económico y Social Cubano de Desarrollo Socialista) and its related Economic Plan (Plan Nacional de Desarrollo Económico y Social hasta el 2030) of the 7th PCC Congress (Partido Comunista de Cuba 2016), the fundamental ideology of the Cuban state and Party underwent substantial enough change to warrant as well parallel changes in its government, and thus in its constitution. And, indeed, after the close of the 7th PCC Congress and the finalization of its theoretical documents that effectively provided the new political constitution for the state, it became necessary to also revise the state constitution to conform the provisions of the state organs to the political constitution of the nation. 
       It is on that basis, that first the PCC, and then the state organs representing popular opinion (as attenuated as that might be) through the National Assembly of Popular Power, determined that constitutional reform was necessary to align the changes to governing ideology to the articulation of administrative authority. On July 14, 2018, Cuban Communist Party (PCC) authorities announced substantial changes to its 1976 State Constitution (“Anteproyecto de Constitución” 13 July 2018). The changes represent an effort by the PCC apparatus to build the changes it had instituted since 2011 into the formal structures of the governmental apparatus of the state (Backer July 15, 2018). The reforms were reviewed during  Cuba's 7th Plenary Session of the PCC Central Committee (“Cuba: Proposal of the Constitutional Reform Under Review” July 4, 2018).
The constitutional revisions were overseen by a Commission chaired by Raúl Castro Ruz, which also included Miguel Díaz-Canel Bermúdez, José Ramón Machado Ventura. Most Western coverage has treated these changes as if they mattered, in the sense of producing innovation in the political economy of Cuba,  “The panel pointed out the political significance of the ongoing review process, as well as the importance of the work undertaken by the 33 members of the commission. He also noted that the current constitution has been in force since 1976 and that proposed reforms are intended to respond to historical circumstances that have changed over time, according to Prensa Latina.” (Ibid.).  The Draft Constitution was then widely circulated to the masses for consultation (“Central Committee plenum analyzes first draft of proposed constitutional reform” July 4, 2018).  
       Those consultations, in turn, followed the model of the consultations that produced the final version of the Lineamientos--a substantial number of state organized meetings throughout the nation at which officials would listen to gathered groups and produce summaries of the discussion suggestions for change.  These would then be passed on to the state and Party organs that would consider those suggestions in producing a final version of the Constitution. That final version would then be submitted to a popular referendum for approval, expected to occur in 2019 (“Cuba constitution referendum date set for February 2019” August 10, 2018), after the publication of this book.
This Chapter considers this constitutional project.  It does so not for the purpose of a deep analysis of the likely final version of the constitutional document.  Instead, Cuban state constitutional revision is considered as the manifestation of the principles and objectives developed in the ideological documents. If constitution follows ideology, then to understand the constitutional process one must first understand its ideological foundation.
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2-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 6 Statutes of Limitations))

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 2 focuses on Article 6 of the Zero Draft (Statutes of Limitation). 

 Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 6 (Statutes of Limitations)
Flora Sapio 



“elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”

By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.

The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions -  Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions -  Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9  – summary of discussions - Tuesday 16 October 2018
Article 10  – summary of discussions -  Wednesday 17 October 2018
Article 11  – summary of discussions - Wednesday 17 October 2018
Article 12  – summary of discussions -  Wednesday 17 October 2018
Article 13  – summary of discussions -  Tuesday 16 October 2018
Article 14  – summary of discussions - Thursday 18 October 2018
Article 15  – summary of discussions -  Thursday 18 October 2018

 
Article 6. Statute of limitations


1. Statutes of limitations shall not apply to violations of international human rights law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation, particularly in cases where the violations occurred abroad.



This is article affirms concepts, principles and rights contained, among others, in the following international instruments:




Article 6 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Tuesday October 2018, from 10  AM to 13 PM, together with articles 7 (Applicable Law) and 13 (Consistency with International Law).

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 6 were submitted by 4 experts. Written comments specific to Article 6 were submitted by:

   • 10 states (Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, Russian Federation, South Africa)
      2 NGOs


Comments by Experts

Lilián Galán, Member of the Parliament of Uruguay: the wording of article 6 includes non-binding language as the reference that states “should”, which gives this provision the character of a recommendation. The scope of the statute of limitation in civil and administrative cases is not clear. This article uses indeterminate legal concepts, and this reduces the capacity to impose effective obligations on states in relation to the prescription of human rights violations.

Written comments byNicolas Guerrero, Senior Legal Officer, WHO FCTC Secretariat are not available on the OHCHR website.

Written comments by Sam Zia-Zarifi, Secretary General, International Commission of Jurists  are not available on the OHCHR website.

Makbule Sahan, International Trade Union Confederation (representing207 million workers in 163 countries): with respect to the articles we are discussing this morning, I would like to express that we consider article 6 on the statute of limitation and article 7 on applicable law generally as helpful. We have some comments regarding the clarity of the language used, which you can find in the joint position of the trade unions.
Comments by States

Written comments on Article  were submitted by Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, Russian Federation, and South Africa.

Argentina:  domestic statutes on limitations can change depending on the legal system of each state, therefore they are not uniform. Article 6 states that the period of prescription for civil claims should not be restrictive. Proposals that contravene provisions of domestic legal systems cannot be ruled out.

Chile: genocide, crimes against humanity and war crimes are not subject to the statute of limitation. This is a binding norm for all states, but a consensus on statutes of limitations for other types of violations does not exist. Therefore it is not appropriate for Article 6 to make allusions to the statutes of limitation for crimes under international law (crímenes de derecho internacional). If this article remained in its current form it would generate controversies among states. Terms as “unduly restrictive”, “adequate period”, and “particularly in cases where the violations occurred abroad” are in need of an explanation relevant to their inclusion in or elimination from the text.

China: the provision about “crimes under international law” is not relevant to the statues of limitations. First, the concept of "crimes under international law" is not clear, and existing international instruments do not provide a commonly accepted definition. Interpretation of this concept can lead to inconsistency and uncertainty, and does not meet the principle of legality. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity was ratified only by 55 state parties. The introduction in this Treaty of a statute of limitation without a clear scope and definition will constitute an obstacle to the participation of states. In applying the statute of limitation for other acts, national law should be universally applicable, without distinctions based on the cause of the claim or the identity of the claimant.

Egypt: my delegation believes that the statute of limitations should be linked to the time when the violation occurred in the framework of the Legally Binding Instrument became known. In addition, the host country should be aware of the occurrence of such violation. Article 6.1 needs to be re-drafted according to article 8.3, which requires all State parties to investigate all human rights violations and take actions against allegedly responsible persons.

India: on Article 6, there is a reference to the phrase ‘crimes under international law’. It is pertinent that the instrument should define what constitutes a crime under international law in the domain of business and human rights.

Mexico: the provision about the statute of limitations is already included in the Rome Statute of the International Criminal Court, therefore its inclusion in this project is not necessary. Concerning the statute of limitation for violations of human rights that do not constitute international crimes, expressions as “should not be unduly restrictive” and “adequate period” are imprecise and subject to the interpretation of each state. In the medium term they will give rise to disputes among contracting parties. We consider it appropriate to replace the term “unduly restrictive” (excesivamente restrictivas) with “unnecessarily restrictive” (innecesariamente restrictivas).

Namibia: in Namibia we have a statute of limitation, which prescribes time limits for civil action, in which category most of the cases would fall and some criminal cases and we will have to consult in great detail on the way forward. However, one thing we are clear on is that victims should be granted a fair and reasonable opportunity to bring a matter before a court that has jurisdiction for adjudication. The way for an indigent victim to the doors of the courts is never an easy one and can take many years because of obvious reasons. Piercing of the corporate veil and other mechanisms used to establish culpability are often time consuming and complicated procedures. Provision should be made for prescription to be interrupted and/or being extended in cases based on violation of human rights by TNC’s especially because of the complexities of their transnational character. We should be weary of making a fallacy of the remedies to be offered in terms of this treaty as the focus is on these remedies.

Peru: this article is of difficult application because it does not practically introduce any limitation to the cases that can be brought before a court.

Russian Federation: this rule is so general that it does not allow to establish what particular actions are in question. However, in such matters there should be absolute clarity, as they relate to the rights not only of the victims, but also of the persons who are brought to justice. Today there is no comprehensive list of international crimes enshrined in a single treaty. International crimes are defined in the statutes of the Nuremberg and Tokyo tribunals. The 1948 Convention also included genocide as an international crime. If Article 6 refers only to these universally recognized international crimes, this should be specified. International crimes as territorism, hostage-taking, money laundering, piracy, drug trafficking and others are covered by existing conventions. The question arises whether such crimes are covered by Article 6.
This procedurally important article contains categories that do not have a clear definition, such as “unduly restrictive” and “adequate period”.

South Africa: it is imperative that the treaty not only apply to all violations of international human rights law but also to international humanitarian law which constitutes crimes under international law. There must be no hierarchy of human rights. South African courts approach a conflict over competing rights by attempting to find a balance between the various rights, instead of promoting one over the other.
South Africa comes from a brutal history of apartheid to which business was a central feature to the oppression of the majority of our people. As a “victims text” therefore, it would thus be a shame to limit this instrument to atrocities which have taken place after this Treaty has come into force.

Comments by NGOs

FIAN International: we support Article 6 as statute limitations can represent a barrier to access justice.

International Organization of Employers: the reference to "crimes under international law" is not clearly defined. When Article 6 says that that domestic statutes of limitations “should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation…" the adverb “unduly” and the adjective "adequate" are very vague. This is a big problem for a proposed legally binding instrument. State parties must be able to limit liability to cases where there is a predictable and causal relationship between the damage and the action or omission.

Live Stream United Nations Forum on Business and Human Rights With Links to Events and Documents

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Information about the 2018 United Nations Forum on Business and Human Rights thatis taking place 26-29 November 2018 in Geneva. Information and links on live streaming, documents and social media. Well worth exploring. 
 
Social media: Hashtag: #UNForumBHR / #bizhumanrights. Twitter follow: @WGBizHRs


Date and location: 26-28 November 2018, Geneva (Switzerland)
Central theme: "Business respect for human rights – building on what works"
Programme:2018 Forum Programme
Registration:Please register online through the Indico platform
Badge collection:All participants must collect their badge and enter at Pregny Gate (8-14 avenue de la Paix, 1211 Geneva)

NB: To collect your badge and enter the Palais (all days), you must bring: your passport and/or a valid national ID (with photo) and the "e-ticket" with a QR codeof your registration confirmation.

Badge collection opening times:
  • Sunday 25 November: 14:00-19:00
  • Monday 26 November: from 07:00
  • Tuesday 27 November: from 07:00
  • Wednesday 28 November: from 07:30
Come early to avoid long queues (especially on Monday & Tuesday morning)!
Documents:Statements and submissions
Quick guide to the Forum programme
Practical information for participants
Modalities of participation
Background reading:
Follow us on Twitter for updates:@WGBizHRs
Hashtag:#UNForumBHR / #bizhumanrights
Contact: For general queries: forumbhr@ohchr.org
For logistics and registration queries: registrationforumbhr@ohchr.org

About the UN Forum on Business and Human Rights

The UN Forum is the world's largest annual gathering on business and human rights with more than 2,000 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, national human rights institutions, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights  (the United Nations "Protect, Respect and Remedy" Framework), as well as current business-related human rights issues.

The Forum is the foremost event to network, share experiences and learn about the latest initiatives to promote corporate respect for human rights.

The UN Human Rights Council established the Forum in 2011 to serve as a global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided and chaired by the Working Group on Business and Human Rights, as per Human Rights Council resolutions 17/4 and 35/7.



3-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 7 Applicable Law)

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 3 focuses on Article 7 of the Zero Draft (Applicable Law). 




Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 7 (Applicable Law)
Flora Sapio 



On 14 July 2014, the Human Rights Council created an Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and Other Business Enterprises  with respect to human rights (OEIGWG). According to Resolution 26/9, the Working Group has the mandate to: “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”
By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses. 
In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions. 
The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.
Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments. 
The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft. 
In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.
Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions -  Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions -  Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9  – summary of discussions - Tuesday 16 October 2018
Article 10  – summary of discussions -  Wednesday 17 October 2018
Article 11  – summary of discussions - Wednesday 17 October 2018
Article 12  – summary of discussions -  Wednesday 17 October 2018
Article 13  – summary of discussions -  Tuesday 16 October 2018
Article 14  – summary of discussions - Thursday 18 October 2018
Article 15  – summary of discussions -  Thursday 18 October 2018
Article 7. Applicable law


1. Subject to the following paragraph, all matters of substance or procedure regarding claims before the competent court which are not specifically regulated in the Convention shall be governed by the law of that court, including any rules of such law relating to conflict of laws.

2. At the request of victims, all matters of substance regarding human rights law relevant to claims before the competent court may be governed by the law of another Party where the involved person with business activities of a transnational character is domiciled. The competent court may request for mutual legal assistance as referred to under Article 11 of this Convention.

3. The Convention does not prejudge the recognition and protection of any rights of victims that may be provided under applicable domestic law.



Article 7 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Tuesday October 2018, from 10  AM to 13 PM, together with articles 6 (Statute of Limitations) and 13 (Consistency with International Law).

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 7 were submitted by 4 experts. Written comments specific to Article 7 were submitted by:

    • 8 states (Chile, China, India, Mexico, Namibia, Peru, the Russian Federation, South Africa)
      4 NGOs.


Comments by Experts

Lilián Galán, Member of the Parliament of Uruguay: it is necessary to eliminate the word  “relevant”, referring to “human rights law”, because all human rights law are relevant, and this provision only expands the margins for companies and states to discuss what rights are important or not for those affected.

It is essential to have a guiding principle which provides, in case of conflicts of law, that the law most beneficial to those affected should apply. We recommend this notion is explicitly incorporated in the second paragraph of this article.

The text of this article should include provisions facilitating victims in their choice of applicable law. Victims are in a disadvantaged situation from multiple aspects, compared to companies involved. It is important to allow victims to assert their rights and make this treaty prevail over international treaties of a commercial nature.

Written comments byNicolas Guerrero, Senior Legal Officer, WHO FCTC Secretariat are not available on the OHCHR website.

Written comments by Sam Zia-Zarifi, Secretary General, International Commission of Jurists  are not available on the OHCHR website.

Makbule Sahan, International Trade Union Confederation: I would like to express that we consider article 7 on applicable law generally as helpful. We have some comments regarding the clarity of the language used, which you can find in the joint position of the trade unions.

Comments by States

Written comments on Article 7  were submitted by 8 states: Chile, China, India, Mexico, Namibia, Peru, the Russian Federation, South Africa

Chile: more precision is needed in the drafting of this article, given it relates to substantive and procedural aspects and in our opinion is written in an “open” form, which may cause divergent interpretations.

It should be debated whether the inclusion of paragraph 2 in the Draft Treaty is relevant. This article involves a complex procedure, that could lend itself to a series of abuses and divergent interpretations. One of the interpretations possible under this paragraph is that claims of human rights violations may be known by the court of a country other than the one where the fact occurred. The court may be able to apply their own national law to evaluate the conduct of the company, if national legislation on conflict of law allows. This would indirectly imply an evaluation of the conduct of the State where the fact occurred.

China: the concept of choice of law reflected in the article applies only to civil proceedings and does not apply to criminal cases.

Unlike contract cases, the applicability of law is a mandatory norm of national legal systems, which should not be altered “at the request of victims”, in line with general principles of law. Paragraph 1 of Article 7 should refer to generally applicable rule in domestic legislation, included the law relating to conflict of laws. If good reasons and a legal basis exist, provisions on conflict of law in the state of the competent court can point to laws in the state where the TNC is located. Paragraph 2 can therefore be deleted.

India: this article needs more clarity, particularly with respect to paragraph 2. The term “involved persons” need to be well defined to avoid any ambiguity. Providing a “choice of law” option needs adequate safeguards to avoid forum shopping. The Draft Treaty should provide guidace to establish a genuine relation between the violation and the chosen law.

Mexico: Mexico expressed its concerns over the following:

  • paragraph 2 allows victims to invoke the legislation of the host state of TNCs. This may provoke reservations and objections, given the national regulation of the applicable law and jurisdiction, restrictions justified by public order, or by other reasons that limit the applicability of foreign law;
  • the Draft Treaty should incorporate a language allowing Parties to produce reciprocal obligations to modify domestic legislation, to allow for actions initiated by citizens of another State party. Actions are to include those cases when, according to the domestic criteria for jurisdiction, jurisdiction can be exerted or acknowledged by more than one state.

Namibia: the purpose of MLA is to provide States the opportunity and ability to solve many complex legal issues even where a conflict of laws exists. Thus, it can be employed also with regards to this treaty.

Peru: this article is redacted in a very general form, and allows no limits to applicable legislation. In some respects it reminds of a most-favorite-nation clause. This clause originates from other fields of international law, and furthermore has ceased to be used. In this respect we echo the commentary of the Russian Federation.

We consider that this article should be sent to the International Law Commission for comments.
Russian Federation: we can not comment on paragraph 2 of Article 7. It provides for the right of the victim of a violation to require that the substantive issues be considered by the court under the law of the other Party. In general, the choice of applicable law is a category of civil law. This, as a rule, is about the right of two parties to a commercial transaction with a foreign element to agree that it will be governed by the law of any one state. In criminal proceedings, this principle, to our knowledge, does not apply. The national court examines the criminal case and passes judgment on the laws of its state, if necessary, taking into account the law of the place of the crime.
It is hard to imagine, Mr. President, that, for example, a judge in Ecuador will pass judgment on someone on the basis of the Criminal Code of the Russian Federation. Namely, this possibility is now mentioned in paragraph 2 of Article 7 - it is not limited to civil claims. But even if this is so, it is unclear how this logic relates to the principle of equality of the parties to a dispute before the law and the court.
South Africa: providing victims with the choice of the most favorable applicable law, between theat of the State where the harm occurred (home state) or where the TNC is domiciled (host state) is paramount. There are circumstances when a victim is not able to utilize the courts of the home or the host state, but those of a third state, and this needs to be taken into account.
The applicable law should make reference to competent regional courts as an avenue of remedy.
Comments by NGOs
FIAN International: we fully support Article 6. On the one hand, it corresponds to the definition of jurisdiction in a broad manner, and on the other hand, it strengthens the protection of victims as they can choose the law which is more favourable to them.

FoEI: Article 7 should be better coordinated with Article 5. It should make explicit that any dispute between States, or between a State and a TNC that may affect human rights should always primarily be subject to international human rights law, or to the legislation most favorable to persons affected.

For more details we refer to the commentary to Proyect Cero, presented by CETIM, IPS y FoEI in name of the Campaign, and to the Treaty of People we presented during the 3rd Session.

International Indian Treaty Council: none of the rights elaborated in the UN Declaration on the Rights of Indigenous Peoples are mentioned in the zero draft. Since the first session of the UN Forum on Business and Human Rights, there has been consensus that Indigenous peoples worldwide suffer the greatest human rights abuses by transnational corporations and business enterprises. We recommend that this Declaration be added to the List of Documents consulted for the preparation of this treaty.  We recommend that CERD General Recommendation No. 23 on the Rights of Indigenous peoples be added to the list of documents consulted.

Article 7 fails to recognize Indigenous laws and customs. Article 11 of the UNDRIP  addresses situations of redress developed with Indigenous peoples where property was taken in violation of their laws, traditions and customs. 

International Organization of Employers: the text on "Applicable Law" would result in the extraterritorial application of one State's domestic law in another jurisdiction. There are many problems with this:
  • The focus placed on expanding extraterritorial jurisdiction does not respect national sovereignty and the principle of non-intervention in the domestic affairs of other States.
  • The provisions take the focus off the need for States to improve victims' access to effective remedy at the domestic and local level.
  • They ignore the practical and procedural shortcomings of extraterritorial jurisdiction
  • Furthermore, this text contradicts the internationally recognized principle of the Rome II Regulation– under which the law in the jurisdiction where the tort occurred applies in general.




 

2018 UN Forum for Business and Human Roghts--Speaking to Coherance and Alignment in Open Markets for BHR Guidance

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The 2018 U.N. Forum for Business and Human Rights has as its central theme: "Business respect for human rights – building on what works." That theme is realized through a focus on the central element of the UN Working Group's 2018 General Assembly Report on the role of the United Nation's Guiding Principles for Business and Human Rights (2011) Second Pillar (corporate responsibility to respect human rights) "human rights due diligence" mechanism (UNGP ¶¶ 17-22).  Many of the sessions at its program have been built around this theme.

This brief post considers the issues raised around a consequential issue of human rights due diligence underlined in the Forum through the opening statement of the High Commissioner for Human Rights ("The movement to ensure businesses uphold human rights is gaining momentum"), and highlighted panels on the 2nd day of the Forum")--the issue of coherence and alignment in business and human rights guidance.



The Working Group brought out its "biggest guns" to push its objectives of emphasizing human rights due diligence as a central element of the Second Pillar corporate responsibility to respect human rights,  and the value of using human rights due diligence as a means of achieving policy and practice coherence through  measures designed to bring convergence and alignment across the quite variegated approaches to the manifestation of the UNGP through human rights due diligence.  In the process, the Working Group appeared to emphasize the guiding authority of major international organization actors, and the key role of states in  managing the societal sphere through the extension of regulatory authority over human rights due diligence directly or indirectly.

The initial discussion focusing on the work at an operational level of civil society thought leaders and international organizations, set the stage for the 27 November plenary session involving senior leaders from international organizations charged with the task of promoting corporate responsibility and responsible business, with business respect for human rights as a bedrock. The formal descriptions of both panels follow revealing through their summaries and the list of spokespeople, the nature and character of the "learning" meant to be disseminated to those expected to follow the developing line.


Building coherence on essential elements of human rights due diligence.   Organized by the UN Working Group on Business and Human Rights in collaboration with the OECD

Short description of the session:
The UN Guiding Principles on Business and Human Rights clarify that all business enterprises have an independent responsibility to respect human rights, and that in order to do so they are required to exercise human rights due diligence to identify, prevent, mitigate and account for how they address impacts on human rights. The introduction of this concept was one of the major contributions of the Guiding Principles.

The 2018 release of the OECD Due Diligence Guidance for Responsible Business Conduct provided another important step forward in helping clarify what human rights due diligence involves in practical steps. As it is in full alignment with the UN Guiding Principles, these two frameworks together provide a solid foundation promoting and scaling up responsible business conduct in a coherent and effective way. Also issued in 2018, a report by the UN Working Group on Business and Human Rights on to the UN General Assembly further highlights key features of human rights due diligence and why it matters; gaps and challenges in current business and Government practice; emerging good practices; and how key stakeholders — States and the investment community, in particular — can contribute to the scaling-up of effective human rights due diligence.

Session objectives
This Forum session takes place against this background with a view to:
  • Highlight the essential elements of human rights due diligence set out in the UN Guiding Principles and the OECD Due Diligence Guidance.
  • Demonstrate the close alignment between these two frameworks.
  • Engage stakeholders in a discussion on the way forward for achieving wider and comprehensive uptake of human rights due diligence in standard business practice.
 Plenary II: Building coherence and reaching scale on human rights due diligence – International organizations' leadership perspectives.

Under the title “Building coherence and reaching scale on human rights due diligence – International organizations' leadership perspectives”, the plenary convenes senior leaders from the UN and international organizations working to promote responsible business conduct and sustainability.

The high-level plenary provides an opportunity for signaling alignment of international standards and action to promote corporate respect for human rights, as well as for reinforcing the message that business respect for human rights must be at the heart of corporate contributions to the 2030 Agenda for Sustainable Development.

A central aim is to signal alignment on the importance of corporate human rights due diligence to enable business enterprises meet their responsibility to respect human rights.



Moderator/ Introductory Remark...
avatar for Dante Pesce

Dante Pesce

Chairperson, UN Working Group on Business and Human Rights
Mr. Dante Pesce holds a Masters in Political Science from the Catholic University of Chile and a Masters in Public Administration from Harvard University. He is the Founder and Executive Director of the VINCULAR Center for Social Responsibility and Sustainable Development at the... Read More →

Speakers
avatar for Michelle Bachelet

Michelle Bachelet

United Nations High Commissioner for Human Rights, Office of the High Commissioner for Human Rights
On September 1, 2018 Michelle Bachelet assumed her functions as the United Nations High Commissioner for Human Rights.  The Office of the High Commissioner for Human Rights was established in 1993 and Ms. Bachelet is the seventh Commissioner.Ms. Bachelet was elected President of... Read More →
avatar for Lise Kingo

Lise Kingo

CEO & Executive Director, UN Global Compact
Lise Kingo is the CEO and Executive Director of the United Nations Global Compact, which is the world’s largest corporate sustainability initiative with more than 13,500 signatories from 170 countries that have committed to aligning strategies and operations with universal principles... Read More →
avatar for Masamichi Kono

Masamichi Kono

Deputy Secretary-General, The Organisation for Economic Co-operation and Development (OECD)
Mr. Masamichi Kono was appointed Deputy Secretary-General of the OECD in August 2017. His portfolio includes the strategic direction of OECD policy on Environment, Development, Green Growth, Science and Technology Policy and Innovation, Financial and Enterprise Affairs and Anti-C... Read More →
avatar for Guy Ryder

Guy Ryder

Director-General, International Labour Organization (ILO)
ILO Director-General Guy Ryder took office on 1 October 2012. Guy Ryder sees the ILO as absolutely central to the questions of the day: jobs, social protection, the fight against poverty, and equality. For this reason, he wants to reinforce the ILO's place at the centre of international... Read More →
avatar for Haoliang Xu

Haoliang Xu

Assistant Administrator and Director for the Regional Bureau for Asia and the Pacific, United Nations Development Programme (UNDP)
Haoliang Xu was appointed Assistant Administrator and Director for the Regional Bureau for Asia and the Pacific by the United Nations Secretary-General in September 2013. Previously, Mr. Xu was Deputy Regional Director of the Regional Bureau for Europe and the Commonwealth of Independent... Read More →

The objectives of the sessions were quite clear, and equally worthy.  They intend to underline the central importance of the mechanics of human rights due diligence as the vessel through which the normative elements of the UNGP could be made coherent and the variegated approaches to its realization aligned both among enterprises and between states and enterprises. To that end, in ways that brought to mind the forms of vanguard party leadership organized on Leninist principles, international organizations ought to play a leadership role whose guidance might be tinged with a mandatory character built on an extended premises of the hierarchy of law in which international law and norms must be treated as superior to and binding on the domestic legal orders of participating states.  None of this is new; though much of this remains contentious. 

There were, however, several profoundly interesting insights.

The first was on the development of additional mechanisms around the UNGP for the purpose of glossing the UNGP, but in a way that suggests elements of implementation.  The object appears to be, at some higher level of generality, to bring unity to diversity through instruments like the OECD Due Diligence Guidance for Responsible Business Conduct around which portions of one of the programs focused.

The second was the invitation to states to engage more positively in the management of the responsibilities of business within the Second Pillar through law. Domestic lawmaking, of course, ought to be guided by the leadership of key international organs (the representatives of which populated the plenary panel). Yet it is to the state the international organizations appear to turn to discipline and manage the otherwise wild zone of the societal sphere which marks the territory of the Second Pillar responsibility to respect.

The third was the conflicting messages delivered about this Second Pillar wild zone. On the one hand, the influence leaders recognize the foundational premise of the UNGP that envisions the development of context-related approaches to human rights due diligence and the glosses on the normative provisions of the UNGP these then produce. On the other hand, they also worry that such variegation opens the door to incoherence and abuse. They worry that variegation produces robust markets for regulation that, beyond the firm leadership of the international community (principally) and states (consequentially), these robust markets will produce anarchy (order without a center) at best and chaos (and incoherence) at worst. To mediate, it is necessary, in the words of the program, to firmly engage in "signaling alignment of international standards" to be undertaken by leading institutions driving processes of alignment and coherence by encouraging convergence through these markets for standards and regulation. That alignment, in turn, ought to constrain market exuberance in the production and operationalization of regulatory packages.

The fourth was that the object of convergence and alignment is directed toward those international organizations that view themselves as driving the global discourse of business and human rights, generally, and human rights due diligence in particular.  The "Working Group will bring together leaders from key UN organizations and OECD, for the first time, in a dedicated panel to highlight alignment in our respective efforts to promote responsible business conduct. . . . joined by our common purpose and emphasis on the importance of rules-based global governance for solving the problems we are here to discuss" (Opening Remarks by Mr. Dante Pesce).

The fifth was the malleable character of human rights due diligence itself. It appears now to serve not just as the incarnation of the substantive principles of the UNGP, but as well, as the instrument through which a human rights based system of managing enterprise behavior may confront the potential threat posed by an approach that centers a larger set of sustainability development goals for the specific objectives of human rights.  One the one hand, human rights is viewed as embedded within specific SDGs; on the other hand, the SDGs may be understood as specific expressions of human rights in economic activity.  The choice of lens will tend to re-frame the approaches and analysis that follows.  But using human rights due diligence as a common basis for operationalization provides a mediating mechanics through which, perhaps either human rights and SDGs may converge, or their distinct goals my be aligned, or through which the SGDs may be re-cast in human rights related terms. Already there is a move in that direction as notions of rights to a safe environment, rights to be free of the constraints of poverty and others have begun to be cast as elements of a human rights centered discourse.  On that basis, and with human rights as the analytical baseline for understanding and regulating human activity, human rights might lose its specificity as a set of specific norms and rights, and instead assume a role of ordering principle  rather than of duties and responsibilities or rights.  

And the sixth, was based on a tentative embrace in some quarters of the view that human rights becomes the baseline for gauging and managing all human activity. The consequences were noted. Some noted that  a fundamental refocus of human rights due diligence was necessary--from a focus on risk to the enterprises (compliance and risk management approach traditional to business) to a focus on risk to rights holders, including internal stakeholders who presumably were not connected to the enterprise leadership group (parent companies, shareholders, and the like). In doing so, of course, a subtle change in the objectives of corporate governance are also achieved--from an orientation grounded in the institutional welfare of the institutions through which economic activities are undertaken, to an orientation on the welfare of those who are affected by undertaking economic activity.  In effect, the change re-orients economic activity from a private enterprise to one with a principal public (social) purpose. 

I will leave the issue of the legalization of the corporate responsibility to respect human rights for another day. Its perverse effects, at least at the limit, are well known, though embraced by adherents of this approach. These include issues around the continuing trend to governmentalize the private sector, a regulatory trajectory that is unlikely to be changed soon (e.g., here, and here). Legalization both empowers states as the authoritative source for regulatory policy, while at the same time devolving effective authority of the management of that regulation to private enterprises that serve as both the object of regulation and as the administrative organ through which it is enforced. Major actors involved in pushing this approach tend either to dismiss this as an issue worth spending resources on, or where recognized, have applied the well worn patterns of 20th century cultures of public administrative regulation to "solve" the problem.   The result just augments the issue--for if enterprises are, with respect to human rights, to be treated as an administrative agency of the state, then to what extent have we erased the distinction between state owned enterprises (or the state itself) and private enterprises. In so doing, of course, is the core question--to what extent does this trajectory erase the difference between the first and second pillars of the UNGP, and reduce the second pillar to an aspirational standard for national legislation? 

But, beyond these questions left hanging, two points appear to have eluded recognition. The first include a cluster of issues around accountability and assessment.  The second include the tensions between convergence, coherence, and alignment.  Each is worth brief unpacking.  Neither was.

4-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 13 Consistency with International Law)

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 4 focuses on Article 13 of the Zero Draft (Consistency with International Law)




Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 13 of the Zero Draft (Consistency with International Law)
Flora Sapio 



“elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”
By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses. 

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions. 

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments. 
The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft. 

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions -  Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions -  Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9  – summary of discussions - Tuesday 16 October 2018
Article 10  – summary of discussions -  Wednesday 17 October 2018
Article 11  – summary of discussions - Wednesday 17 October 2018
Article 12  – summary of discussions -  Wednesday 17 October 2018
Article 13  – summary of discussions -  Tuesday 16 October 2018
Article 14  – summary of discussions - Thursday 18 October 2018
Article 15  – summary of discussions -  Thursday 18 October 2018

 
Article 13. Consistency with International Law

1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.

2. Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.

3. Nothing in these articles shall be construed as restricting or derogating from any rights or obligations arising under domestic and international law. The present articles are without prejudice to any obligation incurred by States under relevant treaties or rules of customary international law, including the obligations under any other treaty that governs or will govern, in whole or in part, mutual legal assistance.

4. The provisions of this Convention shall be applied in conformity with agreements or arrangements on the mutual recognition and enforcement of judgements in force between Parties.

5. This Convention shall not affect the rights and obligations of the Parties under the rules of general international law with respect to the international responsibility of States.

6. States Parties agree that any future trade and investment agreements they negotiate, whether amongst themselves or with third parties, shall not contain any provisions that conflict with the implementation of this Convention and shall ensure upholding human rights in the context of business activities by parties benefiting from such agreements.

7. States Parties agree that all existing and future trade and investment agreements shall be interpreted in a way that is least restrictive on their ability to respect and ensure their obligations under this Convention, notwithstanding other conflicting rules of conflict resolution arising from customary international law or from existing trade and investment agreements.



Article 13 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Tuesday October 2018, from 10  AM to 13 PM, together with articles 6 (Statute of Limitations) and 7 (Applicable Law).

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 13 were submitted by 4 experts. Written comments specific to Article 13 were submitted by:

• 10 states (Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation, South Africa)
  6 NGOs.


Comments by Experts

Lilián Galán, Member of the Parliament of Uruguay: Article 13 is problematic in two respects:

  • the linking of the domestic law of each country with international human rights law. Article 13.1 refers the principles of sovereign equality and territorial integrity. Only states can interpret what conforms to the Treaty and what does not. Article 13.3 refers to international law, and Treaties are to be interpreted in good faith, without enacting domestic legislation with the goal not to comply with Treaty obligations. This is an eclectiv position, and emphasizing the position of Article 13.1 or Article 13.3 is a political option.
  • the linking of this Treaty, a human rights treaties, with trade and investment treaties. The Treaty does not establish the prevalence of human rights over trade and investment agreements. Article 13.7 allows States to interpret trade and investment agreements in a way “least restrictive” of their ability to respect the Treaty. This is an implicit reference to the fact that trade and investment agreements may impact over the human rights enshrined in the Treaty.

The relation between the Treaty and trade and investment agreements has caused enourmous political reticence. Ecuador and its allies have kept the inflexible position to introduce an express mention of the primacy of human rights over trade and investment agreements.

Written comments by Nicolas Guerrero, Senior Legal Officer, WHO FCTC Secretariat are not available on the OHCHR website.

Written comments by Sam Zia-Zarifi, Secretary General, International Commission of Jurists  are not available on the OHCHR website.

Makbule Sahan, International Trade Union Confederation: the formulation of Article 13.7 is far too narrow in order to explicitly recognize the primacy of human rights obligations over trade and investment agreements. What we are looking for in the binding treaty is realignment of disproportionate protection afforded to companies through legally enforceable rules and the soft law approaches when it to business and human rights.

Article 13.6 indicates that trade and investment agreements should not contain any provisions that conflict with the implementation of the binding treaty. This provision is too broad in order to be meaningful.

We propose to introduce a new sub-article in order to introduce the obligation to integrate a human rights clause in existing and future trade and investment agreements. This should include an obligation to renegotiate agreements, which are in contradiction with the treaty. This proposal is based on General Comment No.24 of the Committee on Social, Economic and Cultural Rights.

Article 13.1 and 13.2 could undermine the Treaty. The provisions relating national sovereignty and territorial integrity should not be used as an excuse to decline jurisdiction on the ground of forum non-conveniens, which we have on and again highlighted as a serious barrier to access to justice. If this Article is interpreted broadly, then the measures under Article 9 will be hindered.

Comments by States

Written comments on Article 13  were submitted by 10  states: Argentina, Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation, South Africa

Argentina: Article 13.6 and 13.7 can restrict a state’s decision of trade policy, if such decision is to undergo a test of compatibility with the provisions of the Treaty.

China: as a general rule, the Treaty is neither higher than nor it affects other applicable rules of international law, including mutual legal assistance.
Paragraphs 6 and 7 of Article 13 should be carefully reviewed in accordance with the principle of equal emphasis on human rights and development.

Chile: we believe that Article 13 should only refer to Article 31.3.c of the Vienna Convention on the Law of Treaties.

Egypt: sub paras 6 and 7 from article 13 deals with a vital issue which is the relation between the legally binding instrument and the future trade and investment agreements, both articles need elaboration and to be drafted in a way that takes into consideration various interests and concerns, taking into consideration going efforts to revise trade and investment agreements by many countries including my country Egypt.

India: On Article 13, we once again believe that this article requires significant revision. Clarity is required on the term ‘rights and obligations’, as whose rights and obligations are being referred to in point 3 of the article. It may be noted this article has the potential to conflict with the trade and investment obligations of states as it is infeasible to re-negotiate existing bilateral investment agreements. Once again, we believe the text should bring in balance rather than conflict with the domestic laws.

Mexico: in international law no hierarchy exists among different norms, except for norms of jus cogens, which admit of no derogation. It cannot be assumed that the Treaty prevails over other norms of international law, except for the cases when the criteria of special law or later law so permit.

The last part of Article 13.7 “notwithstanding other conflicting rules of conflict resolution arising from customary international law or from existing trade and investment agreements.” should be eliminated. The reference to customary international law is particularly problematic, because an obligation deriving from a bilateral or multilateral treaty cannot derogate from general norms. This provision may have the effect to violate existing customary international standards.

The delegation of Mexico asked the following question to the Chair: “Would it be preferable to emphasize that the obligation to respect human rights still exists during the negotiation and conclusion of trade or investment treaties, as a way to avoid conflicts of norms between the different types of treaties?”

Namibia: we have to pay extra attention to the provisions of an international instrument before we become a State party thereto. We welcome the way in which Article 13 is crafted, although it can be streamlined to draw a clearer connection with Trade and Investment Treaties with the aim to highlight the primacy of human rights obligations, as indicated by some of the panellists. Sovereignty is a principle, which cannot be compromised, but which should also not be used a veil to refuse cooperation.

Peru: this article should be carefully revised, to ensure an equilibrium between state obligations related to trade and investment, and human rights.

We echo the comments of Mexico and other countries: there exist no hierarchy of norms in international law, except for norms of jus cogens, which admit of no derogation.

Russian Federation: Article 13.1 does not  list all principles of international law, as the principle of peaceful settlement of international disputes, equal rights, and the self-determination of people. It is necessary to list all principles defined in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, or avoid privileging some principles over others.

Yesterday, many speakers noted that the task of the Convention was to consolidate the extraterritorial nature of jurisdiction over human rights violations. If so, then this approach does not fit in with the principles of sovereign equality and non-interference in internal affairs, which are confirmed in paragraphs 1 and 2 of Article 13.

Paragraph 3 of article 13 is not very compatible with paragraph 7 of the same article. In the first case, the obligations of states under existing international treaties are confirmed, and paragraph 7, on the contrary, states that such existing trade and investment agreements should be implemented with an eye to the Convention.

Paragraph 6 of Article 13 provides that all future agreements in the field of trade and investment should include human rights provisions. Given the ambiguous formulation of the Draft Treaty, any future such agreement can, if desired, be deemed to conflict with the Draft Treaty. This provision sets the priority of one branch of international law over another. I wonder what the legal rationale is. This approach is based on the authors of the project. This paragraph does not at all take into account the nature of the content of trade and investment agreements, as well as the mechanisms for resolving disputes over them. The inclusion of human rights clauses in trade and investment treaties would mean that the competence of arbitral tribunals should extend over human rights. This is not the task of professionals in investment affairs. 

The entire system of WTO agreements falls under the trade agreements referred to in paragraph 7 of Article 13. Itwould be useful to get an assessment of the implications of the Draft Trety for WTO law.

The Draft Treaty is based on good intentions and a good theoretical knowledge of human rights, but it is still divorced from the reality and context in which these obligations are to be fulfilled.

South Africa: While respecting the principles of sovereign equality and territorial integrity, the duty to cooperate as a fundamental tenet of international law must apply and must be incorporated in the text. 

In Article 13, 7, clear language underpinning investment agreements which calls for equitable relations and respect for human rights should be emphasized. This article must not preclude any measure to address disadvantageous and constraining bilateral trade investments. It is important for Agenda 2030.

Comments by NGOs

FIAN International: we have major concerns how the Zero Draft deals with trade and investment agreements.The discrepancy between the binding agreements and effective arbitration mechanisms in the area of trade and investment on one side and human rights law in the area of business and human rights on the other side is well known. This leads to situations where trade law trumps over human rights law when there exist contradictions.

The draft at least recognizes this potential conflict. The formulation of article 13 attempts to build a bridge between those defending existing trade and investment agreements and those calling for the primacy of human rights. What we perceive as a compromise text results in fact in a weak protection of human rights and does not really contribute to overcoming the problem. We consider that the existing reference to international treaties in art. 13.3 should be eliminated and that the primacy of human rights should be affirmed, based on articles 103, 1 and 55 of the UN Charter.

Although article 13.6 aims at preventing the negative effect of arbitration mechanisms, the compromise text used is too ambiguous in order to be effective. We therefore propose to add the following text:

“When the use of arbitration mechanisms has the potential to impair or nullify States’ capacity to meet their human rights obligations derived from international human rights law, the use of such mechanisms shall be excluded and the case shall be addressed to the formal justice systems of the involved States, following the rules of international law.”

Article 13.6 as it stands will only have a real effect only on future trade and investment agreements. Therefore, we consider a para. should be added stating that, within a given period, existing trade and investment agreements shall be examined by means of Human Rights Impact Assessments whether they contradict the Convention, and if so, shall be adapted so as to comply with the Convention.

FIDH: the zero draft should be amended in order to contain a specific article regarding State parties obligations when negotiating and implementing trade and investment agreements. Such provision should:
  • to conduct independent human rights impact assessments and consult potentially affected peoples and human rights treaty bodies when negotiating trade and investment agreements
  • Provide for an independent complaint mechanism with the competence to rule on any negative impact trade and investment may have on human rights, including when these impacts result from their dispute settlement mechanisms
  • Require the Parties to ensure that trade and investment agreements oblige States, companies and investors to respect international human rights obligations and not only domestic laws
  • Oblige the parties to ensure trade and investment agreements allow them to maintain adequate policy space to meet their human rights obligations
  • Oblige the Parties to develop clean hands provision requesting investors to respect international human rights standards during all the duration of their investment and obliging them to remedy any negative impact, before to have access to any form of investor-State-Dispute-Settlement
  • Oblige the Parties to protect and provide financial support to CSOs seeking to address the negative impacts trade and investment agreements may have on human rights, including from any SLAPP actions;

Friends of the Earth International: Articles 13.6 and 13.7 should be replaced by a state obligation to conduct an impact assessment of human rights prior to concluding any trade or investment agreement involving an enterprise of another state party. An obligation should be included to review existing trade and investment treaties, and renegotiate them or unilaterally denounce them in case of potential or actual inconsistencies.

The first sentence of Article 13.3 should be deleted, because it implies that state parties may ignore any obligation created by this Treaty, if it is believed such obligation conflicts with national law. This article should also include an obligation for TNCs and other business enterprises to respect judicial decisions and domestic legislation, and request from suing another state party before international arbitral tribunals for any decision based on public interest, that affects the human rights of citizens, or the State’s ability to comply with its human rights obligations.

Article 7 should be better articulated with Article 5, and include a clause making explicit that in case of disputes that may affect human rights, the applicable law must in the first place be the international law of human rights.

We agree that prevention of human rights abuses should be the heart of the treaty. However, none of the rights elaborated in the UN Declaration on the Rights of Indigenous Peoples are mentioned in the zero draft. Since the first session of the UN Forum on Business and Human Rights, there has been consensus that Indigenous peoples worldwide suffer the greatest human rights abuses by transnational corporations and business enterprises. We recommend that this Declaration be added to the List of Documents consulted for the preparation of this treaty.

International Indian Treaty Council:  in Article 13.1 there is little recognition of Indigenous peoples whose territories have been divided by arbitrary state colonial borders. Article 36 of the UNDRIP addresses rights of Indigenous peoples separated by borders.

International Organization of Employers: presented the following comments:

• Some provisions under this Article – that correctly assert the sovereignty and territorial integrity State Parties – are incoherent with other provisions in the draft Treaty concerning extraterritorial jurisdiction.
• The provisions on trade and investment raise problems about the potential for a hierarchy of international law (beyond jus cogens). For the record, the UNGPs do not assert the primacy of international human rights law.

MISEREOR, Asia Pacific Forum on Women, Law and Development, BUND, CCFD, CIDSE, CIEL, FIAN International and SOMO:

  • Article 13.6 declares that future trade agreement “shall not contain provisions that conflict with the implementation of the convention and shall ensure upholding human rights in the context of the activities by parties benefiting from such agreements”. However, for greater legal clarity, the vague term of “upholding” should be replaced with “respect, protect and fulfill” and concrete measures such as human rights impact assessments should be added.

  •  According to Article 13.7, States shall interpret trade and investment agreements “in a way least restrictive on their ability to respect and ensure their obligations under the Convention”. This is certainly well intended. De facto however, the wording would legitimize derogations from human rights obligations and leave it to ill-prepared arbitrators of investment tribunals to interpret which restrictions are acceptable and which are not.

  • Article 13.3 is highly problematic as it says that the Convention cannot restrict other domestic and international obligations. The unintended result would be that trade and investment agreements could restrict human rights while the human rights could not restrict trade and investment agreements. This would contradict General Comment N° 24 of the UN Committee on Economic, Social and Cultural Rights, Principle 9 of the UNGP and the EU Lisbon Treaty that obliges to respect and promote human rights in its trade and investment policy within and outside the EU.

We would like to recommend the following modifications in the next Draft:

·      delete Article 13.3 in order not to neutralize the impact of the Treaty on other areas of international and domestic law;
·      to re-insert the principle of the primacy of human rights over trade and investment agreements in articles 2 and 13, to add a specific supremacy clause and to specify that this primacy must be secured in rulings of any international dispute settlement mechanism;
·      modify Article 13.7 in the sense that “existing and future trade and investment agreements shall be reviewed, interpreted and implemented in a way that they do not restrict the ability of States to respect and implement their obligations under this Convention and other applicable human rights treaties.

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1-Reflections on the 2018 U.N. Business and Human Rights Forum

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(Pix © Larry Catá Backer 2018)


The United Nations Working Group is to be commended for putting together yet another highly interesting, relevant and successful set of programs for its 2018 Forum on Business and Human Rights (and here). As the Forum has increased in visibility and popularity, the task of producing relevant and up to date programs that engage key stakeholders in a rapidly changing environment becomes ever more difficult. 



This post includes reflections on the 2018 and some suggestions for future consideration as the Working Group continue to strive for perfection in the organization of this important event. 




1.  The Rise of "Statements Sessions".

There was a curious increase in the tendency for speakers to produce statements, formal expressions of policy or assertions of undertakings and achievements, that brought a measure f formality to the proceedings.  We should, of course, welcome such statements from states  and other political communities.  Surely such an opportunity  enhances the value of the Forum especially to state participants. And yet one wonders whether such statements, especially when they absorb all of the time of a session, effectively contribute to enhancing the value of the sessions for participants. The value of the sessions, in part, derive form the ability, even in small ways, to interact with those with the authority to issue statements.  It is, in effect, one of the few institutionalized venues in this field to engage with power. States, civil society organs, and enterprises have power aplenty within the scope of their authority.  They have much to say.  They say this carefully.  But should they perhaps concede a little larger space for engagement?

There are two alternatives that might be considered.

The first alternative would require statement makers to deliver their statements before the session.  The statements would then be posted to the site at which the session is described on the Forum website (or its program).  The session would then be devoted to participant comments on the statement or questions to the statement makers related to the substance of the statements.

The second, alternative that might be considered--engagement with an absent power holder.  For this alternative, the first half of the session might be devoted to the statement maker (states, civil society officials, enterprise representatives, etc.) for the purpose of reading their statements (and perhaps also permitting publication). The second half of the session (with equal time) would be devoted solely to comments from participants, during which statement holders remain silent, and listen.

I understand that neither alternative will likely gain much traction.  Power holders--states, enterprises, and the great civil society actors--tend to be prisoners of their own group cultures. They tend to be reluctant to move beyond their customary practices in their usual interactions with others.  Moreover the customs of the Forum itself is becoming institutionalized, creating even at this stage an inertia with respect to practices and expectations, especially in interrelationships between power-holders and others. Moreover there is a perhaps well founded fear that the sessions will devolve form polite spaces for the conveyance of views (though not necessarily for conversation or engagement to be undertaken off site and out of the glare of public spaces) to spaces hijacked by those who cannot resist the allure of agit prop tactics to make a point or leverage their own interventions. One has seen versions of this in other spaces associated with other business and human rights mechanisms. Still, one has to start some place and this may be a way.

2. Accountability and Assessment.
One of the oddest things about the development of the discourse of the UN Forum has been its love-hate relationship with accountability and assessment.  On the one hand, there is a tendency to engage in ersatz assessment of the UNGP grounded in the perceived lack of speed within which the objectives of the UNGP have managed (to the satisfaction of those who make these assessments) to evidence uptake of the UNGP and its preferred behavior norms for states (but mostly for business).  On the other hand, there is a somewhat surprising lack of interest in assessment and accountability mechanisms.

Of course, assessment and accountability are two different things.   Assessment focuses on the relationship between practice and objective, it focuses on the extent of alignment between expectations and performance.  To that end assessment requires engagement in the difficult enterprises of developing practice  and of defining objectives in ways that can be measured.  It requires the even more daunting task of figuring out how to understand the ways that expectations can be created that can be connected, in effect, to forms of performance. More important, assessment poses substantial human rights issues around data and analysis.

Accountability, on the other hand,  suggests the process of applying judgment to analytics.  That is, while assessment produces a set of relational measures, accountability then applies a different site of measures to the ends of making a determination about the quality of assessment and its consequences. Those consequences range from needs to improve performance, revise operations, or indicate the need to engage in remediation. Accountability, of course, is central to the UNGP.  But its centrality is fractured along a number of lines--enterprise self accounting (internal monitoring); accounting to others by states, by enterprises and others, rendering account (remediation) and the like.   

The processes of accountability, then, are quite distinct from those of assessment. Both are necessary to the enhancement of the integrity of systems developed and operated in conformity with the UNGP.  Both are intimately bound up with human rights due diligence as a mechanism for assessment (though not its entirety) and as a means of producing analysis that are ripe for accountability, especially for rendering account. It is a pity, then, that neither assessment nor accountability in its rich and complex embedding within the UNGP, have been centered.  There has been attention paid to both from a high degree of generality. Devoting more space to both issues at the operational level might be useful in the future.   

3.  The political economy of business and human rights.
No one really focuses on the political economy of human rights. Everyone is aware of costs of remediation, but few consider the cost to develop and operate systems of remediation, and modalities of human rights due diligence.As a result there is an unacknowledged emphasis on fairly well resourced apex companies, and fairly well developed states as the model proxies for the development of the "ideal" in the relationship between these actors and the UNGPs. That is a pity.

The political economy of the UNGP on enterprises and on states remains under-explored.  One element is centered on issues of technical capacity.  These are usually embedded in the discussion of the "challenges" of small and medium sized enterprises, especially those in the middle or lower levels of global production chains.  They are also embedded in discussions of the "North-South" problem in building and operating effective UNGP mechanisms.  The usual course of discussion consists of identifying the challenges of capacity, and then using that as a doorway for the intervention of either developed states and international organizations, or of apex enterprises. And then the discussion returns where it started--the leading role of these powerful actors as the most "equal" members of communities of states or of enterprises aligned in production chains. But that sometimes blind reinforcement of power hierarchies in economic and political spheres ought not to go un-noticed.

A related challenge revolves around issues of funding.  Many developing states and smaller enterprises do not have the financial capacity to embed the UNGP to an ideal level. That, in turn, may open the door to discussion of the acceptance of current premises about appropriate business models, or relating to how one understands profitability (or economic or political viability).  Instead, it suggests the means through which developed (OECD and related states) states and apex enterprises ought to displace, in effect, the other stakeholders in the construction of UNGP operational systems.  Those reflexes, certainly, are worth discussing.  They tend to occupy a space at the margins.  Perhaps these ought to move closer to the center.  But so moved, they ought not to be developed as complaints sessions. Rather they suggest the central role of the political economy of compliance at the heart of the UNGP project--not just with respect to remedy, but also with respect to the character of a duty to protect and a responsibility to respect that itself respects the autonomy of states and of enterprises.  
 
4. Empowerment and Victimhoodand Forum Self-Reflection.

If issues of capacity under the UNGP already surround some of the fundamental approaches to the UNGP with respect to states and enterprises, it also appears in the re-construction of the capacity of rights holders. I have had much to say about this in other contexts (here and here).
There are two trajectories whose arcs appear to be pushing in different directions, both of which appear to be joined in newer approaches to human rights instruments (discussed briefly here in that context). Both also appear to more and more clearly define  the "new era" of human rights in economic activity, especially (and for some only) when undertaken by classical profit making enterprises. The first touches on the legal construction of the status of "victim" bound up in the relation between individual and their attached rights. The second suggests the way that this new legal status appears to strip its bearer of agency--the conferral of the status of victim makes an individual a victim twice over. The first takes place when the individual's (legal, moral, societal, communal or other) rights have been violated; the second occurs when the state confers a status on the rights holder that effectively shifts agency over both rights and vindication from the individual to those who mean to manage both.  (Here).
The victimization of rights holders in business and human rights, the ease with which those with power take it on themselves to develop well meaning systems that effectively strip rights holders of agency (all for perfectly respectable reasons or to further perfectly respectable causes) is a subject ripe for discussion at at future Forum. This might be considered one aspect of the larger issue of empowerment (the other side of the victimization coin) that lies at the heart of the UNGP--empowering states to fulfill their duty to protect human rights, empowering enterprises to fulfill their responsibility to respect human rights; and empowering rights holders to determine their own fate and to fairly vindicate their rights.  The issue of empowerment, then, within the modalities of human rights due diligence and grievance mechanisms, ought to assume a larger role in the proceedings of the Forum.  But empowerment must be understood not just with respect to a voice in the creation and operation of human rights due diligence and grievance mechanisms, but also in the joint ownership of information and the processes through which rights may be protected, and if violated, then vindicated.And again, it folds back into challenges posed by the political economy of human rights.

The issue of the slide toward the victimization of rights holders in whose service those with power appear ready points to a larger issue--the need for the Forum and the Working Group to engage in the practice of self-criticism, that is of a public session for assessment of the Working Group's efforts and an openness to hearing from the Working Group's key stakeholders in an open forum on issues and challenges that may require attention.  One will welcome the development of a robust mechanism for Working Group assessment of its own work as part of the practice of accountability where the Working Group might help by leading by example. 

5. The Snapshots
The Snapshots remain a work in progress.  I have been a great fan of this mechanism (e.g. here). There is still room for improvement for thr snapshot element of the Forum.  That requires, first, a sensitivity to complaints that snapshots are marginalized by way of their room assignment or references in Forum discussion. Second, it also requires a sensitivity, in a Forum that cannot escape its class based divisions (states, civil society, and enterprises), that snapshots are places where sub-classes of these actors are parked. There was a sense among many of the participants that their neither understood the "snapshot", nor its relation to the "real" sessions at the Forum and thus in thinking about attending might have chosen to pass on otherwise excellent presentations of forward looking work.  

There are a number of small things that can be done to make the snapshot more effective, and to draw it suggestions. First, live stream the snapshots. That leverages the audience beyond those who might be able to attend in person. Second, move snapshots into the web site where Forum information is distributed.  As it stands web searches for snapshots usually prove frustrating at best. Third, reconsider the present means used to distribute calls for participation in snapshots.  It is not clear that current distribution modalities are effective as they could be.

6. The role of technology.
Block chains, analytics and algorithm as a substitute for or as the future of human rights due diligence? What is the business model for blockchain in human rights within companies and as a stand alone industry? What is the the role of algorithm in decisionmaking? Should it substitute for human judgment or should it serve as a basis for accountability of that judgment? How might one understand the landscape for the corruption of analytics and data mining as human rights laden? To what extent should the process of data gathering, of the analytics undertaken through them, and related algorithms, are themselves subject of human rights due diligence for their effects? These and related questions require much further study, and much greater attention from the Working Group.  The problem with technical questions, of course, are that they are technical.  And for many stakeholders the technical may prove daunting.  Yet if the application of the UNGPs and its operationalization will increasingly be undertaken with and through technology it seems that the Working Group is in the best position to provide a space where education and discussion might be undertaken. The Working Group has taken the initial steps in that direction over the course of the last two Forums, but perhaps they might better integrate issues of technology more generally.

7. Small and Medium Size Enterprises
One of the most dynamic areas of development in the operationalization of the UNGP touches on the role SMEs.  SMEs are interesting in at least twp respects.  The first is as independent centers of responsibility at the top of localized production chains.  The second, and more difficult role is as a subordinate organization within larger global production chains.  Sometimes SMEs occupy both roles simultaneously. Most often these are the enterprises through which the the production chain (finally) meets rights holders in direct interaction. SMEs are sometimes autonomous actors; sometimes SMEs are severely constrained by the policies and operational constraints imposed on them by apex companies who tend to garner almost all of the interest of stakeholders in prior UN Forums. It may be time (again) for the Forum to center SMEs within the the operational and normative universe of UNGP.  Perhaps in the coming years at least one principal stream might focus on the SME and the UNGPs.




5-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 9 Prevention)

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 5 focuses on Article 9 of the Zero Draft (Prevention). 




Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 9 (Prevention)
Flora Sapio 


On 14 July 2014, the Human Rights Council created an Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and Other Business Enterprises with respect to human rights (OEIGWG). According to Resolution 26/9, the Working Group has the mandate to: “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.

The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions - Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions - Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9 – summary of discussions - Tuesday 16 October 2018
Article 10 – summary of discussions - Wednesday 17 October 2018
Article 11 – summary of discussions - Wednesday 17 October 2018
Article 12 – summary of discussions - Wednesday 17 October 2018
Article 13 – summary of discussions - Tuesday 16 October 2018
Article 14 – summary of discussions - Thursday 18 October 2018
Article 15 – summary of discussions - Thursday 18 October 2018

Article 9 Prevention



1. State Parties shall ensure in their domestic legislation that all persons with business activities of transnational character within such State Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations throughout such business activities, taking into consideration the potential impact on human rights resulting from the size, nature, context of and risk associated with the business activities.

2. Due diligence referred to above under Article 7.1 shall include, but shall not be necessarily limited to:
a. Monitoring the human rights impact of its business activities including the activities of its subsidiaries and that of entities under its direct or indirect control or directly linked to its operations, products or services.

b. Identify and assess any actual or potential human rights violations that may arise through their own activities including that of their subsidiaries and of entities under their direct or indirect control or directly linked to its operations, products or services.

c. Prevent human rights violations within the context of its business activities, including the activities of its subsidiaries and that of entities under its direct or indirect control or directly linked to its operations, products or services, including through financial contribution where needed.

d. Reporting publicly and periodically on non-financial matters, including at a minimum environmental and human rights matters, including policies, risks, outcomes and indicators. The requirement to disclose this information should be subject to an assessment of the severity of the potential impacts on the individuals and communities concerned, not to a consideration of their materiality to the financial interests of the business or its shareholders.

e. Undertaking pre and post environmental and human rights impact assessments covering its activities and that of its subsidiaries and entities under its control, and integrating the findings across relevant internal functions and processes and taking appropriate action.

f. Reflecting the requirements in paragraphs a. to e. above in all contractual relationships which involve business activities of transnational character.

g. Carrying out meaningful consultations with groups whose human rights are potentially affected by the business activities and other relevant stakeholders, through appropriate procedures including
through their representative institutions, while giving special attention to those facing heightened risks of violations of human rights within the context of business activities, such as women, children, persons with disabilities, indigenous peoples, migrants, refugees and internal displaced persons.

h. Due diligence may require establishing and maintaining financial security, such as insurance bonds or other financial guarantees to cover potential claims of compensation.

3. State Parties shall ensure that effective national procedures are in place to enforce compliance with the obligations laid down under this article, and that those procedures are available to all natural and and legal persons having a legitimate interest, in accordance with national law, in ensuring that the article is respected.

4. Failure to comply with due diligence duties under this article shall result in commensurate liability and compensation in accordance with the articles of this Convention.

5. States Parties may elect to exempt certain small and medium-sized undertakings from the purview of selected obligations under this article with the aim of not causing undue additional administrative burdens.

_________


Article 9 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Tuesday 16 October 2018, from 16  PM to 18 PM.

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 13 were submitted by 4 experts. Written comments specific to Article 13 were submitted by:

• 9 states (China, Costa Rica, France, India, Mexico, Namibia, Russian Federation, South Africa, Switzerland)
·              1 observer state (Palestine)
• 13 NGOs


Comments by Experts

Baskut Tuncak, UN SR on human rights and toxics:

1.  States should compel all businesses in their territory or jurisdiction to actively monitor, identify and prevent human rights violations. Due diligence requirements may seem obvious, but  human rights due diligence is not conducted in a number of chemical companies. Existing initiatives do not follow the letter of the Guiding Principles on Business and Human Rights, nor the spirit of human rights in general.

2.  HR due diligence must be traceable throughout supply and value chains.   However, the limitations placed on the scope of monitoring, identification, prevention, as well as environmental and human rights impact reporting, seem to leave the potential for human rights abuses to persist in supply chains. The provisions also do not seem to adequately cover suppliers, such as those to companies in electronics and textiles sectors whose products are made with toxic products that again poison workers and their families.  For these and other sectors, the most significant risks to workers and local communities may be buried deep within supply chains, including the activities of small and medium enterprises, which could be exempted.   Also, subsection (e) seems unnecessarily limited to those under direct control. Perhaps include language on the lifecycle approach to business activities

3.  Due diligence should be transparent. Transparency about toxic chemicals in products and production processes has been the key to advancing change in most instances where companies have transitioned away from carcinogens, chemicals that alter hormone systems and impact fertility and brain development.  The intent of the language is section “d” is very much welcome.   However, I am concerned that it does not go far enough to ensure transparency. 

4.  Due diligence should explicitly include actual and potential exposures to hazardous substances. The due diligence applied under this treaty may not adequately address crosscutting thematic human rights issues such as the insidious threat posed by hazardous substances and wastes to human rights.  The section may wish to highlight some key issues that should be included in the due diligence requirements, such as the exposure of communities and workers to hazardous substances.   

Written comments by Elżbieta Karska, UN Working Group on Business and Human Rights are not available on the OHCHR website.

Robert McCorquodale, Inclusive Law: Article 9 uses the wrong terminology of “due diligence”, while the UNGPs use the term “human rights due diligence”. These are substantially different. Human rights due diligence was introduced not to confuse it with business due diligence and to link it with international human rights law. My strong recommendation is that “human rights” must be added before “due diligence” wherever it occurs in this Article and in the Treaty and Optional Protocol.

Article 9 does broadly – but not precisely – cover the four elements set out by the UNGPs as mandatory human rights due diligence. There is, though, no specific “mitigation” or “tracking” aspects, and these should be added as both are important elements of HRDD. The OECD Guidance on Responsible Business Conduct in relation to HRDD is a very good template.

Article 9.2(c) includes “financial contributions” within the coverage of the operations for which there are HRDD requirements. I think that the role of the financial institutions is significant in this area. The specific inclusion of financial institutions within the businesses covered by this Article and across the entire draft should be made clearer.

The responsibility of international organizations should be included in the draft.

I have concerns about the ability of States expressly to exclude small and medium-sized businesses (SMEs) from the obligations under Article 9.5. This exclusion could lead to a form of immunity of SMEs, and the creation of new new legal structures by transnational corporations of a series of SMEs, which would undermine the purpose of the treaty. States could raise awareness, provide support and incentives to SMEs to implement the Treaty. SMEs may rely on the HRDD of larger businesses in their supply chain.

Article 9.2(c)  refers to “preventing harm”. Some concerns have been raised that this is different from “seeking to prevent” human rights impacts under GP 13. A duty to prevent human rights harms on a business for its own activities that cause or contribute to human rights harms, would reinforce the core concern of the draft Treaty of prevention of human rights impacts. It also moves the obligations from being on victims to show a business link, a causal connection and a necessary forum, to that on the business to have the burden of showing that it is serious about its implementation of effective HRDD for its own activities. If this duty to prevent on business extends beyond subsidiaries and those under the control of a business to those in a business relationship, it would go beyond the UNGPs. There is, though, some national legislation, such as the French Duty of Vigilance Act and the UK’s Modern Slavery Act, which does extend this duty to suppliers

Including a defence of effective HRDD would be a powerful incentive for businesses to undertake HRDD and to act to prevent human rights abuses. Such a defence could be added simply by inserting a new sentence in Article 9.4: “This liability may not arise if the business enterprise/legal person or association of legal persons can prove that it took all reasonable precautions within the circumstances, had an effective policy and procedure in place, and exercised all human rights due diligence to prevent the adverse impact”.

Written comments by Gabriella Rigg Herzog, USCIB are not available on the OHCHR website.

Gabriela Quijano (Amnesty International): A future draft should clarify who exactly would be placed under such a requirement as “persons with business activities of transnational character” is equivocal. The obligation to conduct due diligence should be premised on a duty to respect human rights, or to prevent human rights abuses. This is consistent with the responsibility to respect human rights under the UNGPs. To avoid confusion and streamline international standards, we would recommend following the key due diligence steps under the second pillar of the UNGPs more strictly, and only add language where necessary to make concepts clearer or more detailed.

This article should be expanded to include obligations to ensure critical procedural rights that enable individuals and communities to defend their rights and prevent abuses, such as access to information; participation in decision making, meaningful consultation and the need to ensure the FPIC of IPs; protection of HRDs; the possibility to claim injunctive or precautionary measures; and provisions to address the differentiated, and often disproportionate negative impact of corporate activities on women.

Comments by States

China: the concept of due diligence in human rights is related to balancing human rights and development, and promoting respect of human rights in business activities, while avoiding an excessive burden on enterprises, that may affect their contribution to development. The core content of Article 9 is to establish a legal obligation to due diligence, which may be beyond the basis consensus of our negotiations. As the Chairman clearly stated yesterday, the proposed instrument does not seek to create new rights and obligations. There is a consensus on cautiousness in the implementation of human rights in industry and commerce, but countries at different stages of development may have different understandings. If a legal concept is clarified in the text, an examination is needed to see if conditions are mature, and a commonly accepted rule of international law exists. The UNGPs mainly “encourage” human rights due diligence.

Given the core purpose of the Draft Treaty is to provide effective relief mechanisms to victims, from a legal-technical point of view we do not need specific provisions on prevention. The absence of overly specific provisions on prevention does not affect the implementation of the UNGPs, or appropriate caution of States in accordance with their national legal principles.

Costa Rica: the delegation asked the following questions:

Does this article have the goal to give a binding force to UNGPs 17 to 20? If so, how can a uniform capacity to comply with these obligations be guaranteed throughout the world? If all states had the same legal basis to acknowledge the main international legal instruments on human rights, and the same capacity to implement them, we would not be performing this exercize.

Prevention should start from taking into account the capacity of states, because Article 9.3 introduces an obligation for states to  ensure that effective national procedures are in place to enforce compliance. This would imply creating an ad hoc national institution to regulate the operations of TNCs.

How can the state provide a legal guarantee of due diligence by enteprises, in addition to its existing obligation to have law respected? Is the establishment of a national institutions to monitor due diligence by enterprises, with respect to the human rights obligations of enterprises, which are enshrined in national legislation?

France: the French delegation described legislation on the duty of care for business companies, promulgated in March 2017 (Loi de devoir de Vigilance), inviting states and the OEIGWG to take into consideration this type of mechanism and the cases to which it applies. The French delegation stated it believed that prevention is the first guarantee of respect for human rights in business, and that because of this reason the scope of the Treaty cannot be limited to TNCs.

India:  the duty to prevent human rights violations as elucidated in article 9.2.c is an onerous one and the threshold must be reduced to 'seeking to prevent' human rights violations which is a reduced standard. Further, 'seeking to prevent' human rights violations should be treated as a mitigating factor while affixing liability under Article 10.

Article 9.4 also needs to be re-drafted to make 'due-diligence' understood as a 'standard of conduct' and not as a 'standard of result'.

India appreciates the exemption clause provided in article 9.5 for protection of certain small and medium enterprises from additional undue administrative burdens. However the carve out is only for select obligations under Article 9. Considering the importance of SMEs in the economy, more flexibility in exemptions may be provided to SMEs.

Mexico: implementing obligations under Article 9 will require the setting of deadlines to adapt national legal systems, and a deep process of legal harmonization.

We would like to propose an amendment to Article 9.1, to avoid limiting the adverse impact of transnational business activities to direct consequences, and also extend it to indirect and foreseeable consequences:

…taking into consideration the potential impact on human rights resulting from or associated with the size, nature, context of and risk associated with of the business activities.”

Paragraph 9.2(g) can, as the Convention 169 of the ILO, recognize the right to consultation and participation of various groups, but the elderly an other vulnerable groups should be included in the consultations referred to in this article.

It would be worth considering whether it would be desirable to include a general provision on the obligation to carry out a prior, free and informed consultation, when from impact evaluations is apparent that there could be a negative impact on human rights. Consultations would not be limited to groups in a position of vulnerability.

The Mexican delegation expressed reservations about Article 9.2, given its high degree of discretion and legal uncertainties. The option to exempt SMEs from due diligence obligations would result in a weak protection regime.

Namibia: Article 9 should refer to the term “human rights due diligence”, as indicated by one of the panellists, as this will capture the essence of the prevention sought through the treaty. We further propose that the listing in Article 9 (g) be carefully considered in order to be all-inclusive as the list currently poses a risk of exclusion of groups with a heightened risk of violation, especially farmers and/or farmworkers. We also propose this sub-article to include awareness raising as a specific element of the consultations alluded to.  Whilst SME’s should not be encumbered with unnecessary due diligence administrative burdens, they should not be excluded from the primary obligations to prevent abuses from occurring.  We reiterate our preference to use the term "abuses" or "adverse impacts" with respect to the human rights violations caused by the transnational activities of the companies.

Russian Federation: states should be able to independently determine the forms and mechanisms that will be used to ensure that obligations are fulfilled and violations are prevented. States will take into account their legal systems, capability, regional circumstances and legal traditions. The main thing is ensuring a universal standard! In this regards we do not see the need to include extensive provisions on preventive measures.

We are concerned about Article 9.2(f) because it  does not take into account the nature of the content of commercial contracts, including the mechanisms for resolving disputes over them. Inclusion of human rights clauses in such agreements would mean that the jurisdiction of courts should include a category of cases on compliance with human rights standards, fundamentally different from commercial relations. The same considerations are fully applicable to Article 13.6. Inclusion of human rights provisions would induce a radical reform of the international system for resolving trade and investment disputes. In addition, it is unclear what “all” contractual relations mean? The inclusion of human rights committment may become a formality, and such an approach may not be correct.

We would prefer not to include provisions on preventive measures in the Draft Treaty. It would be more correct to issue them as comments or recommentations, following the UNCITRAL practice. This would allow to adjust provision during the implementation of the Treaty.

South Africa: this article must be guided by the “duty of care” which creates the legal obligation for transnational corporations and other business enterprises to adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.

Article 9.1 should refer to the consideration of human rights impacts as well as environmental impacts and these assessments must be conducted independently and transparently at cost to the company involved.

The reporting referred to in Article 9.2(d) should include financial and non-financial matters.

The principle of Free Prior Informed Consent should be explicitly mentioned and guide the consultations in Artcle 9.2(g). The notion of “continuous consent” should be added to ensure that communities have the right to suspend or stop developments that were not previously agreed upon.

Under Article 9.5, it is very important that TNCs and OBEs understand that Prevention Mechanisms should be an integral part of the business model as opposed to being viewed as “additional administrative burden”, and subsidiaries, agencies, representatives and so forth should be held acccountable for violations.

The text should refer to clear obligations to halt production, and mitigating strategies. The article should make provisions for prevention mechanisms in situations of conflict and occupation.

Switzerland: the concept of due diligence and the terminology used in the Draft Treaty are not aligned with those in the UNGPs and the OECD Guidelines for Responsible Business Conduct. The Draft Treaty recognizes that enterprises can be involved in human rights abuses but the categories used in the Draft Treaty do not correspond to notions of direct and indirect involvement in corporate abuses, as contained in the UNGPs.

Comments by Observer States

Palestine: in its current format the Treaty does not shed light on the importance of requiring strict due diligence by both the state and corporate actors in situations of conflict. “Special attention” under article 15 remains insufficient to address the increasing role of corporations in the commission of and involvement in grave breaches of international law, as well as their significant role in protracting and sustaining conflicts, particularly those relevant to the arms industry and natural resources. Adding a provision under Article 9 on prevention requiring enhanced due diligence in conflict areas is essential. Where a tiaution violates international law in conflict areas, the Treaty must require states to create regulations to ensure that companies refrain from activities contributing to such violations and/or terminate existing business activities.


Comments by NGOs

Amnesty International:“persons with business activities of a transnational character” is ambiguous, so a future draft should clarify who exactly would be placed under due diligence obligations. This obligation should be premised on a duty to respect human rights, or prevent abuses. This is consistent with the UNGPs. We would recommend following kay due diligence steps under the second pillar of the UNGPs more strictly, and add language only where necessary to make concept clearer or more detailed. This article should be expanded to include obligations to ensure critical procedural rights that enable individuals and communities to defend their rights and prevent abuses, such as: access to information; participation in decision making, meaningful consultation and the need to ensure the FPIC of IPs; protection of HRDs; the possibility to claim injunctive or precautionary measures; and provisions to address the differentiated, and often disproportionate negative impact of corporate activities on women.   

Association for Women’s Rights in Development (AWID) and Feminist for a Binding Treaty group: effective prevention absolutely depends on a gender justice approach, seeking to address impacts of abuses on women. Article 9 should include the obligation as part of due diligence to carry out gender impact assessment.  The need for gender integration in human rights impact assessments has been recognised by the CESCR, the UNWG on TNCs and OBEs and even in the new OECD Due Diligence Guidance for Responsible Business Conduct. Monitoring and reporting should include gender-disaggregated data. The appropriateness of persons undertaking the assessment in Article 9 should be measures against the minimum criteria of independence; appropriate expertise; adequate funding; diversity including but not limited to gender balance; and engagement of affected communities.Article 9 does not include any measure regarding due diligence in the context of business activities in conflict-affected and high-risk areas, which is a major gap.

Brazilian AIDS Interdisciplinary Association (directly coordinating 17 NGOs in Brazil, indirectly representing more than 600 movements and organizations): TNCs should have direct obligations to prevent violations of the riht to health. They should be held responsible under civil, administrative and criminal law. In practical terms, the instrument must state that TNCs have the obligation to prepare, publish and effectively implement vigilance plans, and to evaluate their activities in light of human rights obligations. The consultation process  must be: transparent and ensure the participation of independent, public interested-oriented groups. Those processes cannot be a mere formality

Groups listed in Article 9.2(g) should include “LGBT and people living with chronic and non-communicable diseases”.

CAFOD, CIDSE (International family of Catholic social justice organisations), Trócaire and CCFD-Terre Solidaire: the references to mandatory due diligence in article 9 build on the UN Guiding Principles and offer an opportunity for the Treaty to complement and significantly strengthen the impact of all existing National Action Plans. The UN Guiding Principles were adopted 7 years ago. We can learn from experiences on Human Rights Due Diligence in the interim to develop the zero draft text here and ensure that the final Binding Treaty is effective in practice.

It is also important to further explore the link to liability set out in the draft. This link is more likely to drive actual change by company directors when it comes to their decisions about the activities of their subsidiaries, environmental practices, negotiating prices with firms in their supply chain and consultations with workers and affected communities.

Centre Europe Tiers Monde: the definitions included in Article 9 suppose a distancing from original parameters. Its current formulation reflects important deficiencies in the monitoring and accountability of TNCs. We are dealing with a concept of due diligence close to voluntariness, in line with the spirit of the UNGPs, and not a truly binding regulation. The control of compliance with due diligence falls on states, and the original vector of Resolution 26/9 has been diverted, because the goal of directly regulating the international obligations of companies has been abandoned in favor of establishing obligations for states.

FIAN International: it is important that the Treaty includes a more adequate concept of consultation with affected persons, changing the concept from “meaningful consultation” to “free, previous and informed consultation”, according to Convention 169 of the International Labor Organization; guarantee that decisions taken by affected communities be respected; clearer dispositions about the right to consultation, emphasizing how consultation should be independently organized by states, rather than by corporations.

Friends of the Earth International: to the concept of “due diligence”, we prefer the concept of duty of care, inspired from the French law, which includes not only the obligation to develop preventive measures, but also the obligation to implement them effectively, to evaluate their effectiveness. Above all it includes the obligation to repair with a mechanism to incur the liability of the company. It is also important to stress the responsibility of parent and outsourcing companies for the activities of companies in their corporate group (subsidiaries) but also throughout their supply chain. Article 9 (1c) should thus more clearly include subcontractors and suppliers.

With regard to paragraph 2g, the term "meaningful consultations" is too vague; an explicit reference must therefore be made to the obligation for States to obtain the free prior and informed consent of the communities potentially affected by any investment project in their territories. Preventive measures must be developed with the participation of affected communities and social organizations. A gender perspective should be integrated in the Draft Treaty. 

International Association of Democratic Lawyers (IADL): Article 9 should follow the mandate of Resolution 26/9 which is regulating the activities of TNCs and other business enterprises, therefore it should establish direct obligations for TNCs and their supply chains. Obligations related to prevention should be differently addressed both to states and TNCs. Global supply chains should be included in this article, and language that may narrow down the scope of application of due diligence should be avoived. Human rights due diligence should not be confused with other forms of due diligence. As signalled by the Human Rights Commissioner in 2018, the key difference is that we are not elaborating a mechanism to riduce economic risk, but to prevent corporate crimes. Therefore, we do not understand the inclusion of “financial security, such as insurance bonds or other financial guarantees to cover potential claims of compensation.”

Under Article 9.2(g) the inclusion of women among groups in need of special attention should be avoided in favor of measures integrating gender in impact assessments.

Regarding the elimination of the reference to vigilance plans, we consider it fundamental to include the obligation to elaborate, publish and implement such plans, independently evaluate their efficiency, with the full guarantee of information and transparency.

Indigenous Peoples International Centre for Policy Research and Advocacy: for indigenous peoples, mere consultation as provided in Article 9, sub para 2 g is inadequate. We therefore recommend that a provision on Free Prior and Informed Consent be added to the treaty.   FPIC  for indigenous peoples is protected in international law, including International Labour Organization Convention (ILO) 169 and the UN Declaration on the Rights of Indigenous Peoples (Articles 10,11,19,28, 29). We also refer members of this Honorable Working Group to the study made by the Expert Mechanism on the Rights of Indigenous Peoples submitted to the Human Rights Council in September 2018 (A/HRC/39/62), to further support this recommendation.

International Commission of Jurists: the language of Article 9 is not entirely satisfactory. Prevention amount only to human rights due diligence but the Draft could contemplate additional ways for states to prevent human rights abuses by companies, or to require companies to prevent abuses. The form of human rights due diligence in the Draft departs from existing standards of due diligence. Article 9 brings additional requirements to the four-step process of due diligence, such as “meaningful consultation” with affected groups, the requirement of financial security to cover potential compensation claims, the incorporation of some measures into transnational contract. Greter alignment with UNPGs 17 to 21 and existing practices would be desirable.

International practice and the French Loi de devoir de Vigilance should be taken into account, and a separate article should be included to provide more specific guidance on human rights due diligence.

The Draft should address other forms of prevention, that could be modelled on those identified by UNGPs 3, 15, General Comment 16 of the Committee of the Rights of the Child, and General Comment 24 of the Committee on Economic, Social, and Cultural Rights.

International Organization of Employers:Article 9 unduly mess with and creates confusion with the four-step human rights due diligence process under the UNGPs, that is understood and carried out by more and more businesses. The Zero Draft Treaty formulation is unworkable by establishing human rights due diligence as a standard of outcome.

Attaching liability for non-compliance with human rights due diligence exposes parent companies, buyers and retailers to legal risks regardless of their involvement in the harm. Companies would need to adopt stricter policies in cross-border suppy chains, that would require vastly greater abilities and powers. This approach would further undermine the state as some of its traditional functions would be transfered to global business.

Article 9.5 trying to offer exemption to SMEs offers no assurance that an exemption would happen in reality, and offers to clarity as to the application of its vague language. The provision requiring “all persons with business activities of a transnational character” to undertake due diligence obligations is completely unrealistic. The speaker referred to the IOE Paper on State Policy Responses to Human Rights Due Diligence.

RIDH: the delegate described the human rights adverse impacts of transnational businesses in Colombia, and domestic legislation limiting the binding character of existing forms of popular consultation. The Colombian national environmental movement supports the inclusion of a right to a binding consultation as a central element of implementation of projects of TNCs.

Sudwind and International Clean Clothes Campaign: conceptual alignment with Pillar II of the UNGPs is needed to reduce definitional and operational ambiguities in the Draft Treaty.

Article 9.2 deviates from the formulation adopted in the UNGPs and does not provide that mitigation measures shall be taken, to to assess any adverse impact on human rights. The OECD  Due Diligence Guidance frames the tracking and monitoring impacts and responses and the public reporting as crucial and intrinsic parts of Due Diligence. The reference to due diligence measures should follow the sequence foreseen in the UNGPs to avoid confusion and potential difficulties in interpretation. Greater alignment with the UNGPs would provide more precision, greater clarity and an increased level of comfort by all parties stakeholders who are already familiar with the concepts. The UNGPs are clear on this front and reflect a consensus among states and stakeholders.
Meaningful public disclosure is a cornerstone of making this article meaningful, and we would invite to consider stronger and clear language on this. Clarity needs to be provided on the point that human rights due diligence is a dynamic concept. We suggest a continuous obligation and not an exercise confined to pre- and post-event assessments; so, we would encourage article 9.2.e, which refers to “pre and post’ assessments, to be modified to be continuous.

On SMEs, responsibility is no longer a function of the size of the company, but needs to be commensurate with the human rights risks at hand.

Perros desamparados en Cuba [Homeless Dogs in Cuba] (Rene Gómez Manzano)--Fighting Against Animal Abuse in the Caribbean

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Animal rights is not a conceit of developed states. There are those in the Caribbean who have also become much more active in the development of social knowledge of human dignity as expressed in human treatment of animals, and in the defense of animals against cruel and abusive treatment.  Among these is the  Cubanos en Defensa de los Animales (CEDA) [Cubans in Defense of Animals], a civil society which characterizes itself as a sociocultural and humanitarian project [un proyecto sociocultural y humanitario] centered in the Havana region. Its principal objective is to reduce the populaitons of street dogs and cats and to educate the public, especially children and youth , against animal violence ["El objetivo central de CeDA es disminuir las poblaciones callejeras de perros y gatos y educar a la población, especialmente niños y jóvenes, en la no violencia contra los mismos."].


CEDA's work has come to the attention of social media recently.  Rene Gómez Manzano writes about the efforts of CEDA which resulted in the punishment of an individual associated with a government research center who engaged not only in acts of cruelty to animals, but posted his activities on line. But Gómez Manzano also notes the dearth of public sanction against some of the conduct alleged to have been committed by this person and opens the issue of the need for legislation or other avenues of conduct management, to reduce the incidence of such acts. The article,  Perros desamparados en Cuba, follows below (Castellano only) and may be accessed where originally posted to CubaNet. While Gómez Manzano focuses on the sexual abuse involved in that case (see, e.g., here, and here for story from Indonesia), the more general issue of the human rights implications of animal abuse is worth much more intense consideration both in Cuba and among CARICOM states--to start. 

Important, as well, is the relationship between abuse and social media that is coming to occupy a more important role in these activities.  Social media appears to provide a larger space in both the performance of acts of cruelty (some abusers appear to crave an audience to enhance the value to them of their own debasement through acts of cruelty to animals), and in the possibility of the secondary effects that seem to satisfy an element of the population that appears to derive some vicarious pleasure from watching. Suppression may be impossible, but management may be more effective.  It is in this respect, in any case, that a "social credit" or data driven governance approach to managing human behavior might gain traction (e.g., here).




Perros desamparados en Cuba

Un hecho despreciable ha hecho resaltar la ausencia de leyes para proteger a los animales del maltrato en la Mayor de las Antillas

RENÉ GÓMEZ MANZANO

VIERNES, 30 DE NOVIEMBRE, 2018 | 12:07 PM

Cubano detenido por torturar a animales. Foto Facebook

LA HABANA, Cuba.- Recientes informaciones periodísticas dan cuenta de la detención en Cuba de un aberrado que se dedicaba a torturar y violar perros, a los cuales después mutilaba y mataba. El sujeto, al parecer orgulloso de su depravación, filmaba las macabras escenas y las publicaba en foros digitales. La plataforma Cubanos en Defensa de los Animales (CEDA) denunció el caso “con dolor y repugnancia”.

Se trataba de un trabajador del Centro de Neurociencias del Polo Científico, entidad que “escuchó y apoyó desde el primer momento” a los protectores de animales, por lo cual la mencionada plataforma le extendió un “agradecimiento especial”. El individuo “fue expulsado del sector al conocerse y verificarse sus actividades ilícitas y repugnantes”.

El asqueroso incidente pone de nuevo sobre el tapete el tema de la inexistencia de normas legales que protejan a los animales en Cuba. Como se recordará, el asunto fue incluso uno de los más abordados en el recién concluido “debate popular” del actual Proyecto de “nueva Constitución socialista”. Durante ese proceso, muchos ciudadanos plantearon la necesidad de un amparo de ese tipo que figurase en la misma carta magna.

Las numerosas gestiones realizadas en ese sentido, han encontrado los oídos sordos de las autoridades castristas. Cibercuba, en un post consagrado a ese asunto, recoge las palabras de una activista del CEDA: “Quienes han abogado por la necesidad de una ley de protección animal nunca han recibido una respuesta oficial de por qué se ha seguido de largo sobre el tema”.

Según la misma publicación, se registra “un aumento de casos de maltrato animal, más visible en los últimos años gracias a las redes sociales”. Por estos medios “han salido a la luz casos extremadamente dolorosos e insólitos”. Y se concluye que hechos de ese tipo se producen “sin que exista una vía legal para juzgar a los responsables”.

Este último planteamiento pone el dedo en la llaga. Por supuesto que, en principio, uno tiende a ver con buenos ojos que, al menos por esta vez, quien da con sus huesos en una cárcel cubana sea no un ciudadano que discrepa del gobierno, o un infeliz que, para mitigar sus muchas necesidades, hurta o estafa. Todo lo contrario: En este caso, quien ha perdido su libertad es el autor de actos feroces como los arriba mencionados.

Pero, como abogado criminalista, uno no puede dejar de estudiar el aspecto puramente jurídico de la cuestión. ¿Qué fundamento legal (si es que alguno) tiene el arresto ahora anunciado? ¿De qué delito se acusará al sádico que martirizaba a los canes y hacía pública ostentación de su crueldad?

En base a lo publicado hasta el momento, los hechos ocurridos no sirven para justificar la detención. Existe en verdad el vacío jurídico que denuncian los defensores de animales. Los castristas, en su indolencia, no se han ocupado de erigir salvaguardas legales para esos otros seres vivos. Las acciones perpetradas contra los perros, en sí mismas, no constituyen delito alguno. Son —utilizando el adjetivo forense— atípicas.

A lo sumo, podríamos pensar en alguna sanción imponible por los actos de bestialismo. Pero ese castigo no se derivaría del acto sexual impuesto al ser irracional; esta situación, de por sí, no es punible, por no encontrarse prevista en la ley penal. No importa, a estos efectos, cuán repugnante ella resulte.

La ilegalidad se derivaría únicamente de otro aspecto de la realidad: Resulta evidente que, para mostrar al público un acto sexual (sin importar que éste haya sido realizado con un individuo de otra especie), el autor tiene que exhibir sus propios órganos reproductivos mientras realiza esa actividad aberrante.

Es cierto que el nombre del posible delito (“ultraje sexual”) no parece ajustarse mucho a hechos como los descritos. Pero también es verdad que el artículo 303 del Código Penal, que sanciona esa conducta, parece aplicable a este caso. Ese precepto castiga a quien “ofenda el pudor o las buenas costumbres con exhibiciones o actos obscenos” y a quien “produzca o ponga en circulación […] cintas cinematográficas[…], fotografías u otros objetos que resulten obscenos, tendentes a pervertir o degradar las costumbres”.

En un país como Cuba (donde quien sacrifique de manera ilegal una res puede recibir una pena más larga que un homicida y permanecer encarcelado durante decenios), las sanciones que contempla el artículo citado no son impresionantes: “privación de libertad de tres meses a un año o multa de cien a trescientas cuotas”. Pero algo es algo.

El escandaloso sucedido ha puesto de manifiesto una lamentable omisión en las leyes cubanas. El régimen castrista, al permanecer por años enteros sin prestar atención a los insistentes pedidos de los defensores de animales, ha cometido otra pifia más. Veremos si, ante la situación creada, es capaz de subsanarla.
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6-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 8 Rights of Victims)

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 5 focuses on Article 8 of the Zero Draft (Rights of Victims). 





Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 8 (Rights of Victims)
Flora Sapio 


On 14 July 2014, the Human Rights Council created an Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and Other Business Enterprises with respect to human rights (OEIGWG). According to Resolution 26/9, the Working Group has the mandate to: “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.

The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions - Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions - Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9 – summary of discussions - Tuesday 16 October 2018
Article 10 – summary of discussions - Wednesday 17 October 2018
Article 11 – summary of discussions - Wednesday 17 October 2018
Article 12 – summary of discussions - Wednesday 17 October 2018
Article 13 – summary of discussions - Tuesday 16 October 2018
Article 14 – summary of discussions - Thursday 18 October 2018
Article 15 – summary of discussions - Thursday 18 October 2018

Article 8 (Rights of Victims)

 1. Victims shall have the right to fair, effective and prompt access to justice and remedies in accordance with international law. Such remedies shall include, but shall not be limited to:
a. Restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition for victims.
b. Environmental remediation and ecological restoration where applicable, including covering of expenses for relocation of victims, and replacement of community facilities.

2. State Parties shall guarantee the right of victims, individually or as a group, to present claims to their Courts, and shall provide their domestic judicial and other competent authorities with the necessary jurisdiction in accordance with this Convention in order to allow for victim’s access to adequate, timely and effective remedies.

3. States Parties shall investigate all human rights violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those natural or legal persons allegedly responsible, in accordance with domestic and international law.

4. Victims shall be guaranteed appropriate access to information relevant to the pursuit of remedies. State parties shall ensure that their domestic laws and Courts do not unduly limit such right, and facilitate access to information through international cooperation, as set out in this Convention, and in line with confidentiality rules under domestic law.

5. States shall provide proper and effective legal assistance to victims throughout the legal process, including by:
a. Informing victims of their procedural rights and the scope, timing and progress of their claims in an opportune and adequate manner;
b. Guaranteeing the rights of victims to be heard in all stages of proceedings without prejudice to the accused and consistent with the relevant domestic law;
c. Avoiding unnecessary formalities, costs or delay for bringing a claim and during the disposition of cases and the execution of orders or decrees granting awards to victims;
d. Providing assistance with all procedural requirements for the presentation of a claim and the start and continuation of proceedings in the courts of that State Party. The State Party concerned shall determine the need for legal assistance, in full consultation with the victims, taking into consideration the economic resources available to the victim, the complexity and length of the issues involved proceedings. In no case shall victims be required to reimburse any legal expenses of the other party to the claim.

6. Inability to cover administrative and other costs shall not be a barrier to commencing proceedings in accordance with this Convention. States shall assist victims in overcoming such barriers, including through waiving costs where needed. States shall not require victims to provide a warranty as a condition for commencing proceedings.

7. States Parties shall establish an International Fund for Victims covered under this Convention, to provide legal and financial aid to victims. This Fund shall be established at most after (X) years of the entry into force of this Convention. The Conference of Parties shall define and establish the relevant provisions for the functioning of the Fund.

8. States shall provide effective mechanisms for the enforcement of remedies, including national or foreign judgements, in accordance with the present Convention, domestic law and international legal obligations.

9. Victims shall have access to appropriate diplomatic and consular means, as needed, to ensure that they can exercise their right to access justice and remedies, including, but not limited to, access to information required to bring a claim, legal aid and information on the location and competence of the courts and the way in which proceedings are commenced or defended before those courts.

10. Victims shall be treated with humanity and respect for their dignity and human rights, and their safety, physical and psychological well-being and privacy shall be ensured.

11. States shall protect victims, their representatives, families and witnesses from any unlawful interference with their privacy and from intimidation, and retaliation, before, during and after any proceedings have been instituted.

12. States shall guarantee the right to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement of victims, their representatives, families and victims.

13. Victims shall have the right to benefit from special consideration and care to avoid re-victimization in the course of proceedings for access to justice and remedies.



This is article affirms concepts, principles and rights contained, among others, in the following international instruments:




Article 8 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Monday 15 October 2018, from 3 to 6 PM, together with article 2.

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 8 were submitted by 4 experts. Written comments specific to Article 8 were submitted by:

·      11 states (Azerbaijan, Bolivia Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation, South Africa)
·      6 NGOs.


Comments by Experts

Molly Scott Cato, Member of the European Parliament, expressed her pride for the work of the European Parliament in supporting the future Treaty, and her regret for the EU’s refusal to engage in the negotiations. She conveyed the testimony of a Mexican woman activist, who attempted to obtain remedy from the harm caused by the economic activity of a Canadian TNC, but Mexican “ laws are not strong enough to resist the power of massive global companies who are larger than many countries.” Chapters of trade agreements including protection for human rights and the rights of indigenous people are not parts of legally binding treaties.

Written comments by Ibrahim Salama (OHCHR) are not available on the OHCHR website.

Ana María Suárez Franco (FIAN) expressed appreciation for the attempt to reduce barriers to access to justice, for the creation of an International Fund for victims, and for Article 8’s emphasis on judicial remedies. She suggested that Article 8 should include new elements:

  • the right for victims to present legal claims and demand reparation against any of the companies part of an economic group and involved in value chains;
  • joint responsibility for companies allegedly involved in human rights abuses;
  • right to be informed about all the different companies allegedly involved in abuses, or a rebuttable presumption of control in case of unaivailability of such information. This would ensure the principle of the equality of arms for the alleged victims;
  • the right to demand precautionary measures to stop immediately the harm or to prevent the harm until the case is decided;
  • a clause on the application of the pro-persona principle

Gabriela Quijano (Amnesty International) suggested to:

  • include a new article addressing key human rights, and corresponding duties and protections, of individuals and communities who are at risk of becoming victims of corporate abuse, and of human rights defenders who work to defend their rights. This should include provisions relating to access to information, participation in decision-making, meaningful and inclusive consultation, injunctive relief and precautionary measures, Free, Prior and Informed Consent of Indigenous Peoples, protection of human rights defenders and of the rights of minorities, and special provisions to address the differentiated, sometimes disproportionate and gender-specific abuses suffered by women in the context of corporate activities;
  • include an express duty of States to identify and remove barriers, and establish a clear obligation to take all measures necessary to remove or mitigate existing barriers;
  • (8.4) clearly articulate the definition of the following wording: “state” (8.2, 8.3) , “information relevant to the pursuit of remedies”, “confidentiality rules under domestic laws”;
  • (8.11, 8.12) include the protection of human rights defenders that do not fall under the categories of “victims, representatives, families and witnesses”. These paragraphs should operate outside of litigation, also in the context of work to defend and protect human rights;


Comments by States

Written comments on Article 8 were submitted by 11 states: Azerbaijan, Bolivia, Chile, China, Egypt, India, Mexico, Namibia, Peru, the Russian Federation South Africa

Azerbaijan: the International Fund for Victims indicated in article 8 should be covered under a separate article with the view to further elaborate this matter.

Bolivia: the International Fund for Victims should be covered under a separate article. The Fund should be financed by developed countries, and by TNCs. The Fund should be regulated by states, and used also to build the capacity of developing states.

Chile: the main right should be the right to access to justice. It should be clarified whether the forms of reparation listed by Article 8 are a responsibility of states, enterprises, or both. The meaning of Environmental remediation and ecological restoration  is unclear.

Paragraph 8.3 is only applicable to allegations about crimes or administrative violations.

The notion of adequate and effective remedies is vague, and allows discretionality, because it does not indicate the specific form or venues of remedies. The possibility to take action against persons allegedly responsible for violations opens up the way to abuses.

Paragraphs 8.5 and 8.6 could be merged.

Paragraph 8.5.d should be amended by specifying victims should in no case cover the costs of litigation only with their consent.

Paragraph 8.9 excessively broadens the duties of consular and diplomatic assistance of states

It is not clear how paragraphs 8.11 and 8.12 differ from existing obligations of states to safeguard the lives and the security of persons in their territory under existing human rights conventions.

The creation of the International Fund deserves further consultation.

China:  Article 8 does not create any new obligations for states, it reaffirms existing general obligations. Therefore:

  • it may be simplified, leaving the content of specific obligation to domestic and international law
  • it may enumerate the specific rights, and then combine existing applicable international law, review specific provisions one by one, to avoid creating separate victims for the treaty
  • paragraph 8.1.b can be deleted as it refers to general legal concepts, already included in the international legal documents on which this article is based;
  • out of respect for national sovereignty, the principle of extraterritorial jurisdiction requires caution;
  • state investigation is based on domestic rather than international law;
  • the right to access to information is a new concept, requiring further clarification. This concept should be understood and agreed upon based on the legal framework of each country;
  • provisions on legal assistance should be discussed based on existing national legal frameworks, to avoid creating new rules; the resource and capacity of countries should be considered, to avoid frivolous litigation;
  • the International Fund for victims requires careful consideration. It requires a separate article;
  • the enforcement of decision by foreign courts should take place in accordance with relevant bilateral and multilateral treaties;
  • the concept of diplomatic and consular channels should be clarified. States should not be made responsible for non-compliance by market actors;

Egypt: a separate article shall be devoted for the establishment of the international fund for victims, as the establishment of this fund will be one of the major deliverables of the legally binding instrument and shall be further elaborated in a separate article.

India: Article 8 needs  considerable revision. What we should try to do is to make this article more flexible. It can list out the minimum standards while leaving it the states to work out the model of implementation as per their domestic legal framework.

Mexico: the term “victim” should be replaced by a language of greater legal and procedural precision – such as “alleged victim” or “applicant” (demandante) or “initiator” (promovente). A gender perspective should be included in access to justice, remedies, and legal aid.

Exempting victims from the reimbursement of legal expenses may cause frivolous litigation.

The creation of an International Fund entails the assumption of subsidiary responsibility by state for the damage caused by enterprises, and duplicate state-based initiatives. The creation of an International Fund therefore is not appropriate.

Paragraphs 8.9 to 8.13 duplicate existing norms of international law, therefore they can be deleted.

Namibia: Namibia welcomes the establishment of a fund for victims.

Peru: the wording of this article should be more precise. Paragraph 8.1 does not specify who the holder of obligation is. The terms “environmental remediation” and “ecological restoration” are not part of international law, so they should be defined. The remainder of Article 8 places obligations that may be excessive for developing states. Paragraphs 8.8 and 8.9 should be aligned with existing processes and norms on foreign judgments and consular and diplomatic protection.

Russian Federation: the approach of Article 8 is contrary to the fundamental principles and the very concept of human rights, it undermines the integrity of justice systems through the criterion of the subject of violations of human rights. It makes the state responsible for providing individuals with a privileged protection regime, in cases when rights are violated by TNCs, but not by the state or other actors. The unjustified choice of some privileged groups or categories of rights fragments the regime of human rights protection, and reduces its integrity.

Many of the rights and procedural guarantees under Article 8 already exist in international law, therefore the detailed listing of Article 8 is superfluous.

Environmental rights do not have a universally recognized definition, therefore Article 8.1.b is not enforceable.

Class action is absent from Russian law.

Paragraph 8.3 falls outside of the scope of the convention, and it is not related to violations of human rights by TNCs and other business enterprises.

Exempting defendants from the costs of litigation may result in frivolous litigation.

The creation of an International Fund involves and understanding of its practical consequences. Such consequences are unknown.


South Africa: a definition of “victims” and “right holders” for the purpose of the Treaty should be consisìdered. Paragraph 8.1 should recognize that the family or dependants of victims, who suffer harm individually or collectively, are central to the Draft Treaty.

Paragraph 8.10 should be placed at the front.

The Chair and the Panelists are requested to share their views on the modality of the International Fund, included contributions by TNCs, and where the Fund could be located. The treaty must recognize that TNCs must contribute to implementation of the treaty.

Comments by NGOs

Asia Pacific Forum on Women, Law and Development and the Feminists For a Binding Treaty. (Representing 250 feminist organizations in Asia Pacific and globally): Article 8 should:

  • Recognise historical and structural barriers to women’s access justice and ensure gender-responsive remedies.
  • Recognise and address multiple and intersecting barriers to women’s access to justice in the context of conflicts, particularly conflicts over resources where transnational companies often plays significant role and extract profits.
  • Recognise the central role of women human rights defenders in resisting corporate abuse and impunity, during which course they face threats, attacks and even killings; and ensure safety and protection of women human rights defenders.


CETIM: the project talks about rights of victims, but we are affected by, we are the subjects and the main characters in an unequal struggle taking place on our territories. We are not just victims. We would like the word “persons affected” (afectados) to be included in the Treaty.

Congregation of Our Lady of Charity of the Good Sheperd (representing Sisters of Mercy, Mercy International Association and 13 members of the NGO Mining Working Group): Establish forums where people, in particular women, can testify, safely and privately, in regards to injustices (Article 8.11 and 8.12); and at all costs, reject forums in which foreign investors have access to private dispute tribunals.

FIAN International: include an explicit right to information about all actors in value chain, to facilitate access to justice; recognize the right of victims to make demands to actors based on their solidary responsibility; include victims’ rights to cautionary measures, to contain or avoid damage caused by business activities.

FIDH, Justiça Global, LHR, Al-Haq, ESCR-net, SOMO: article 8 on the rights to victims should explicitly mention HRDs and include their right to access relevant information, particularly in the pursuit of accountability and remedies.

International Organizations of Employers:  presented the following comments on Article 8:

  • the section on "Rights of Victims" includes provisions (that appear elsewhere) that would seek to increase victims' ability to bring extraterritorial claims against a company for violations in the context of business activities of a transnational character. This causes problems involving sovereignty;
  • the overall definition of victim as a person "alleged" to have suffered harm does not make sense as it would allow anyone to claim victim status and the corresponding rights simply by alleging that a harm occurred. It is not clear how the various forms of reparation would relate to companies and States. Also, the text does not specify how consideration for domestic and international law would be managed, especially if the two systems are incompatible;
  • the inclusion of "environmental remediation and ecological restoration" as a form of remedy that victims would be entitled to opens the door to another body of law that is not part of the IGWG's mandate (under Resolution 26/9) and it does not clarify the relationship between the environment and human rights;
  • the provision that stipulates that "State Parties… shall take action against those natural or legal persons allegedly responsible" is ambiguous;
  • the provision that "victims shall be guaranteed appropriate access to information" in relation to "the pursuit of remedies" would mean that the principle on the production of evidence would not apply. At the same time, the provision may contradict other laws, principles and incentives governing corporate conduct;
  • the draft text encourages frivolous litigation and bad-faith actions being filed against businesses when it says that "in no case shall victims be required to reimburse any legal expanses of the other party to the claim;
  • it is not clear what the terms "satisfaction" as a form of remedy means. Similarly, it is not clear what the provision that victims'"psychological well-being and privacy shall be ensured" means and how State Parties would "ensure" this.



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"Acabar con la corrupción y con la impunidad"--Text of the Speech delivered by Mexico's New President Andrés Manuel López Obrador en la tribuna del Congreso de la Unión

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Andrés Manuel López Obrador, the new President of Mexico, today delivered a speech in the Mexican Congress as he was sworn in to office. It received the usual sort of coverage in the mainstream media, notable for the adoption of the prism through which all of his actions will be seen in the coming years: Reuters (Mexico new president vows to end 'rapacious' elite); CNN (Mexico swears in new leftist president); Washington Post (The Latest: Mexico's president joins in indigenous ceremony). 

The emphasis of the Western Press, of course, was on those issues that either confirmed pre-judgment, or that might produce the sort of scare mongering that increases "clicks" and related revenues.  For all that the speech was quite important and  worth careful consideration. Yes, of course, he severely criticized prior administrations in language that U.S. voters have become more accustomed to since 2016.  And yes, he blamed what he calls "neoliberalism" for the ills that now beset Mexico, rereading Mexican history in ways that may require greater consideration. His prediction that Mexico can spend within its means without the need for austerity programs, which he correctly viewed as unhelpful, and that the fruits of anti-corruption efforts would significantly increase revenue might reflect more hope than realism. Much of the speech will require careful unpacking and likely some revision in practice--though it made for the sort of "moment" that the Western press would lap up, but in a way that distorted the President's central message rather than in ways that more modestly even sought merely to report it in its entirety accurately.

More important, however, was the quite explicit olive branch he extended to the U.S. administration, the promise of respecting Mexico's national and international obligations, and the commitment to develop Mexico precisely to transform migration from a necessity to a choice. Equally important was the commitment to shift development efforts to the south of the country. He made accusations against the cronyism of prior regimes, but promised to look forward and not to embroil his office in an orgy of investigations (that themselves would replicate the very forms of corruption against which he campaigned). That, by no means suggested anything like an amnesty program, the reverse appears to be true, but his office will at least officially remain unconnected with the investigations of past corruption.

Lastly, and quite heartening, it followed that corruption policy will play a central role in his administration.  Though what that means precisely remains unclear, one was given a taste of what is to come, especially in the objectives of strong anti-corruption efforts.  
Por eso estoy optimista, creo que ya estamos logrando, se está iniciando y ya vamos en el camino de lograr el renacimiento de México, que nos vamos a convertir en una potencia económica y, sobre todo, en un país modelo que habrá de demostrar al mundo que acabar con la corrupción es posible, y así lo haremos, porque de esa manera construiremos una sociedad más justa, democrática, fraterna y siempre alegre. [That is why I am optimistic, I believe that we are already achieving, it is starting and we are already on the road to achieving the rebirth of Mexico, that we are going to become an economic power and, above all, a model country that will have to demonstrate to theworld that ending corruption is possible, and we will do it, because in that way we will build a more just, democratic, fraternal and always happy society.]
That focus against corruption ought to be taken seriously, and such efforts ought to be aided by those who have Mexico's best interest at heart. That focus explicitly tied anti-corruption efforts to a commitment to deepen rule of law structures in Mexico, not just for those who could afford it, but to all Mexicans. 

The future will test the new President's view of "neoliberalism" and the path toward reform.  There is much in there that echoes the views of regional neighbors, especially Cuba, with respect to the nature and character of regional integration and national aspirations. But this may not point to a socialist trajectory as much as a nationalist one. That said, careful attention will have to be paid to the consequences, in law and policy,  derived from a quite clear and direct connection that the President made between corruption and privatization, and the indictment of "neoliberalism" in that unhappy union ("El distintivo del neoliberalismo es la corrupción"). Yet his indictment of what he calls "neoliberalism" did not amount to an attack on markets, or on the private sector as such. 

The speech was published in the original Castellano in Processo and follows below. It may be accessed HERE.



López Obrador en su Mensaje a la Nación (Texto Íntegro)
CIUDAD DE MÉXICO (apro).- A continuación, el texto íntegro del Mensaje a la Nación pronunciado por el presidente Andrés Manuel López Obrador en la tribuna del Congreso de la Unión.

Diputadas y diputados. Senadoras, senadores, autoridades locales y federales. Invitadas e invitados del extranjero. Licenciado Enrique Peña Nieto, le agradezco sus atenciones. Pero, sobre todo, le reconozco el hecho de no haber intervenido, como lo hicieron otros presidentes, en las pasadas elecciones presidenciales.

Hemos padecido ya ese atropello antidemocrático y valoramos el que el presidente en funciones respete la voluntad del pueblo. Por eso, muchas gracias, licenciado Peña Nieto.

Amigas y amigos, por mandato del pueblo iniciamos hoy la cuarta transformación política de México, puede parecer pretencioso o exagerado, pero hoy no solo inicia un nuevo gobierno, hoy comienza un cambio de régimen político.

A partir de ahora se llevará a cabo una transformación pacífica y ordenada, pero al mismo tiempo profunda y radical, porque se acabará con la corrupción y con la impunidad que impiden el renacimiento de México.

Si definimos en pocas palabras las tres grandes transformaciones de nuestra historia, podríamos resumir que en la Independencia se luchó por abolir la esclavitud y alcanzar la soberanía nacional, en la reforma por el predominio del poder civil y por la restauración de la República. Y en la Revolución nuestro pueblo y sus extraordinarios dirigentes lucharon por la justicia y por la democracia.

Ahora, nosotros queremos convertir la honestidad y la fraternidad en forma de vida y de gobierno. No se trata de un asunto retórico o propagandístico, estos postulados se sustentan en la convicción de que la crisis de México se originó, no solo por el fracaso del modelo económico neoliberal aplicado en los últimos 36 años, sino también por el predominio en este periodo de la más inmunda corrupción pública y privada.

En otras palabras, como lo hemos repetido durante muchos años, nada ha dañado más a México que la deshonestidad de los gobernantes y de la pequeña minoría que ha lucrado con el influyentismo.

Esa es la causa principal de la desigualdad económica y social, y también de la inseguridad y de la violencia que padecemos.

En cuanto a la ineficiencia del modelo económico neoliberal, baste decir que ni siquiera en términos cuantitativos ha dado buenos resultados. Recuérdese que luego de la etapa violenta de la Revolución, desde los años treinta, hasta los setenta del siglo pasado, es decir, durante 40 años, la economía de México creció a una tasa promedio anual del 5 por ciento.

Y durante ese mismo periodo, en dos sexenios consecutivos, de 1958 a 1970, cuando fue ministro de Hacienda Antonio Ortiz Mena, la economía del país no sólo creció al 6 por ciento anual sino que este avance se obtuvo sin inflación y sin incremento de la deuda pública. Por cierto, Ortiz Mena no era economista sino abogado.

Posteriormente hubo dos gobiernos, de 1970 a 1982, en que la economía también creció a una tasa del 6 por ciento anual pero con graves desequilibrios macroeconómicos, es decir, con inflación y endeudamiento.

En cuanto a la política económica aplicada durante el periodo neoliberal, de 1983 a la fecha, ha sido la más ineficiente en la historia moderna de México. En este tiempo la economía ha crecido en 2 por ciento anual, y tanto por ello como por la tremenda concentración del ingreso en pocas manos, se ha empobrecido a la mayoría de la población hasta llevarla a buscarse la vida en la informalidad, a emigrar masivamente del territorio nacional o a tomar el camino de las conductas antisociales.

Lo digo con realismo y sin prejuicios ideológicos: la política económica neoliberal ha sido un desastre, una calamidad para la vida pública del país. Por ejemplo, la reforma energética, que nos dijeron que vendría a salvarnos sólo ha significado la caída en la producción de petróleo y el aumento desmedido en los precios de las gasolinas, el gas y la electricidad.

Cuando se aprobó la reforma energética hace 4 años se afirmó que se iba a conseguir inversión extranjera a raudales, como nunca. El resultado es que apenas llegaron 760 millones de dólares de capital foráneo, lo que únicamente representa el 1.9 por ciento de la incipiente inversión pública realizada por Pemex en el mismo periodo, y apenas en 0.7 por ciento de la inversión prometida.

En los considerandos de las leyes aprobadas en ese entonces se aseguraba que en ese año íbamos a estar produciendo 3 millones de barriles diarios, y la realidad es que estamos extrayendo solo 1 millón 763 mil, 1 millón 763 mil barriles diarios. Es decir, 41 por ciento menos de lo estimado y con tendencia a la baja.

Es tan grave el daño causado al sector energético nacional durante el neoliberalismo, que no solo somos el país petrolero que más gasolinas importa en el mundo, sino que ahora ya estamos comprando petróleo crudo para abastecer a las únicas seis refinerías que apenas sobreviven, téngase en cuenta que precisamente desde hace 40 años no se construye una nueva refinería en el país.

Aquí agrego otros saldos de la política económica neoliberal o neoporfirista. De México es originario el maíz, esa planta bendita y somos la nación que más importa maíz en el mundo. Antes del neoliberalismo producíamos y éramos autosuficientes en gasolinas, diesel, gas, energía eléctrica. Ahora compramos más de la mitad de lo que consumimos de estos insumos.

En este periodo el poder adquisitivo del salario mínimo se ha deteriorado en 60 por ciento y el salario de los mexicanos es de los más bajos del planeta. Tenemos el doble de enfermos de diabetes en comparación con países de América Latina. Durante el periodo neoliberal nos convertimos en el segundo país del mundo con mayor migración. Viven y trabajan en Estados Unidos, 24 millones de mexicanos. Y por lo que hace a la violencia, estamos en los primeros lugares del mundo.

Según la última medición de Transparencia Internacional ocupamos el lugar 135 en comparación con 176 países evaluados. Ocupamos el lugar 135 en corrupción, entre 176 países evaluados y pasamos a ese sitio luego de estar en el lugar 59 en el 2000, subir al 70 en el 2006, escalar al 106 en el 2012 y llegar en 2017 a la vergonzosa posición en que nos encontramos.

Por eso insisto. El distintivo del neoliberalismo es la corrupción. Suena fuerte, pero privatización ha sido en México sinónimo de corrupción. Desgraciadamente casi siempre ha existido este mal en nuestro país, pero lo sucedido durante el periodo neoliberal no tiene precedente en estos tiempos que el sistema en su conjunto ha operado para la corrupción. El poder político y el poder económico se han alimentado y nutrido mutuamente y se ha implantado como modus operandi el robo de los bienes del pueblo y de las riquezas de la nación.

En la época de la llamada, o del llamado desarrollo estabilizador, o compartido, que va de los años 30 a los 70 del siglo pasado, los gobernantes no se atrevieron a privatizar las tierras ejidales, los bosques, las playas, los ferrocarriles, las telecomunicaciones, las minas, la industria eléctrica ni mucho menos a enajenar el petróleo, pero en estas últimas tres décadas las máximas autoridades se han dedicado, como en el Porfiriato, a concesionar el territorio y a transferir empresas y bienes públicos, e incluso funciones del Estado a particulares nacionales y extranjeros.

No se trata, como antes, de actos delictivos individuales, o de una red de complicidades para hacer negocios al amparo del gobierno. En el periodo neoliberal la corrupción se convirtió en la principal función del poder político, por eso si me piden que exprese en una frase el plan del nuevo gobierno, respondo: acabar con la corrupción y con la impunidad.

Pero al contrario de lo que pudiera suponerse, esta nueva etapa la vamos a iniciar sin perseguir a nadie porque no apostamos al circo ni a la simulación.

Queremos regenerar, de verdad, la vida pública de México. Además, siendo honestos, como lo somos, si abrimos expedientes dejaríamos de limitarnos a buscar chivos expiatorios, como se ha hecho siempre, y tendríamos que empezar con los de mero arriba, tanto del sector público como del sector privado.

No habría juzgados ni cárceles suficientes, y lo más delicado, lo más serio, meteríamos al país en una dinámica de fractura, conflicto y confrontación, y ello nos llevaría a consumir tiempo, energía y recursos que necesitamos para emprender la regeneración verdadera y radical de la vida pública de México, la construcción de una nueva patria, la reactivación económica y la pacificación del país.

Estamos ante un asunto político de Estado, y como tal debemos enfrentarlo. Mi postura al respecto la definí con toda claridad desde la campaña. Dije que no es mi fuerte la venganza, y que si bien no olvido, sí soy partidario del perdón y la indulgencia.

Además, y esto es muy importante, creo precisamente que en el terreno de la justicia se pueden castigar los errores del pasado, pero lo fundamental es evitar los delitos del porvenir.

En consecuencia, propongo al pueblo de México que pongamos un punto final a esta horrible historia y mejor empecemos de nuevo, en otras palabras, que no haya persecución a los funcionarios del pasado, y que las autoridades encargadas desahoguen en absoluta libertad…

Que las autoridades encargadas desahoguen en absoluta libertad los asuntos pendientes, por cierto, hoy se constituye una comisión de la verdad para castigar los abusos de autoridad, para atender el caso de los jóvenes desaparecidos de Ayotzinapa.

Que se castigue a los que resulten responsables, pero que la Presidencia se abstenga de solicitar investigaciones en contra de los que han ocupado cargos públicos o se hayan dedicado a hacer negocios al amparo del poder durante el período neoliberal.

Desde mi punto de vista, en las actuales circunstancias es más severa y eficaz la condena al régimen neoliberal, dejar en claro su manifiesto fracaso y su evidente corrupción, y hacer todo lo que podamos para abolir el régimen neoliberal y someter a procesos judiciales o a juicios sumarios a sus personeros, quienes a fin de cuentas no dejan de ser menores ante la esperanza de todo un pueblo y la fortaleza de una nación como la nuestra.

Pero de cualquier manera, como en todos los asuntos de trascendencia para la vida pública del país, yo defenderé con libertad y argumentos mi postura del punto final y de pensar y trabajar hacia el porvenir, pero la ciudadanía tendrá la última palabra, porque todos estos asuntos se van a consultar a los ciudadanos.

También aclaro que si se acepta mi propuesta de mantener al margen de este asunto al Poder Ejecutivo, tal determinación se aplicará para los de antes y para los que se van, no para nosotros, quienes mantendremos en alto el ideal y la práctica de la honestidad. Empiezo por informar que hemos promovido una ley para convertir la corrupción en delito grave, que aunque parezca increíble no lo era.

Con apego a mis convicciones y en uso de mis facultades, me comprometo a no robar y a no permitir que nadie se aproveche de su cargo o posición para sustraer bienes del erario o hacer negocios al amparo del poder público.

Esto aplica para amigos, aplica para compañeros de lucha y familiares.

Dejo en claro que si mis seres queridos, mi esposa o mis hijos, cometen un delito, deberán ser juzgados como cualquier otro ciudadano. Solo respondo por mi hijo Jesús, por ser menor de edad.

En cuanto a mi persona, he promovido desde hace años la reforma al artículo 108 de la Constitución para eliminar la impunidad y los fueros de los altos funcionarios públicos, empezando por el presidente de la República, quien ahora, según la iniciativa de ley que hoy, este día, estoy enviando al Senado, podrá ser el presidente de la República juzgado como cualquier ciudadano por el delito que sea, aun estando en funciones.

Un buen juez por la casa empieza. Pondremos orden en la cúpula del poder, porque la corrupción se promueve y se practica fundamentalmente desde lo alto hacia los niveles inferiores. Es decir, vamos a limpiar al gobierno de corrupción de arriba para abajo, como se limpian las escaleras.

El otro distintivo del nuevo gobierno será la separación del poder económico del poder político. El gobierno ya no será un simple facilitador para el saqueo, como ha venido sucediendo. Ya el gobierno no va a ser un comité al servicio de una minoría rapaz. Representará a ricos y pobres, creyentes y libres pensadores, y a todas las mexicanas y mexicanos, al margen de ideologías, orientación sexual, cultura, idioma, lugar de origen, nivel educativo, o posición socioeconómica. Habrá un auténtico Estado de derecho, tal como lo resume la frase de nuestros liberales del siglo XIX, al margen de la ley nada y por encima de la ley nadie.

También transitaremos hacia una verdadera democracia, se acabará la vergonzosa tradición de fraudes electorales. Las elecciones serán limpias y libres y quien utilice recursos públicos o privados para comprar votos y traficar con la pobreza de la gente o el que utilice el presupuesto para favorecer a candidatos o partidos, irá a la cárcel sin derecho a fianza.

El combate a la corrupción y la austeridad nos permitirá liberar suficientes fondos, más de lo que imaginamos, mucho más, para impulsar el desarrollo de México. Con esta fórmula sencilla de acabar con la corrupción y de llevar a la práctica la austeridad republicana, no habrá necesidad de incrementar impuestos en términos reales, y ese es un compromiso que estoy haciendo, ni aumentarán los precios de los combustibles más allá de la inflación.

Ahora resulta que los que aumentaron el precio a las gasolinas están pidiendo que baje. Hago el compromiso responsable, que pronto, muy pronto, cuando terminemos la refinería que vamos a construir en México y se rehabiliten seis refinerías, va a bajar el precio de la gasolina y de todos los combustibles.

Tampoco, que se oiga bien y que se oiga lejos, tampoco vamos a endeudar al país.

Cuando terminó el sexenio del presidente Fox la deuda pública –esto no se sabe, pero no está de más recordarlo– era de 1.7 billones. Cuando dejó el gobierno Calderón, la deuda aumentó a 5.2 billones, más de 200 por ciento. Y en esos dos sexenios fue cuando se recibió más dinero por la venta de petróleo al extranjero y todo se derrochó o se fue por el caño de la corrupción.

Ahora la deuda es de 10 billones. Nada más para pagar el servicio de esa enorme deuda tenemos que destinar del presupuesto del año próximo alrededor de 800 mil millones de pesos. Por eso, ya no va a aumentar la deuda pública. Ese es nuestro compromiso.

No gastaremos más de lo que ingrese a la hacienda pública. Se respetarán los contratos suscritos por los gobiernos anteriores, pero ya no habrá más corrupción ni influyentismo en negociaciones con empresas particulares.

Me comprometo, y soy hombre de palabra, a que las inversiones de accionistas nacionales y extranjeros estarán seguras y se crearán condiciones hasta para obtener buenos rendimientos, porque en México habrá honestidad, Estado de derecho, reglas claras, crecimiento económico y habrá confianza.

Reitero también que se respetará la autonomía del Banco de México. Estamos elaborando el presupuesto del año próximo y gracias a los ahorros que obtendremos con el combate a la corrupción y con la aplicación de las medidas de austeridad, se incrementará la inversión pública para rescatar la industria petrolera y la industria eléctrica.

Vamos a impulsar proyectos productivos con inversión pública y privada, nacional y extranjera. Estos proyectos se crearán como cortinas de desarrollo de sur a norte del país, para retener a los mexicanos en sus lugares de origen. Queremos que la migración sea optativa, no obligatoria. Vamos a lograr que los mexicanos tengan trabajo, prosperen y sean felices donde nacieron, donde están sus familiares, sus costumbres y sus culturas.

Por ello, se construirá el tren maya, se sembrarán un millón de hectáreas de árboles frutales y maderables en el Sur-Sureste. Se rehabilitarán, como ya lo expresé, las refinerías existentes y haremos una nueva refinería en Dos Bocas, Paraíso, Tabasco, para dejar de comprar la gasolina en el extranjero.

En el Istmo de Tehuantepec se promoverá la creación de una vía férrea para un tren de contenedores de carga y se ampliarán los puertos de Salina Cruz y Coatzacoalcos, para comunicar en menos tiempo a los países de Asia con la costa este de Estados Unidos.

En este corredor habrá energía eléctrica y gas a precios bajos, así como subsidios fiscales para la instalación de fábricas y la creación de empleos.

En tres años estará funcionando –me canso, ganso–, además del actual, el nuevo aeropuerto de la Ciudad de México, con dos pistas adicionales en la Base Aérea de Santa Lucía.

Asimismo, desde el primero de enero próximo entrará en vigor la zona libre a lo largo de los 3 mil 180 kilómetros de frontera con Estados Unidos. Esta franja de 25 kilómetros de ancho se convertirá en la zona libre más grande del mundo. Allí se cobrará lo mismo de impuestos y costarán igual los energéticos que en California, en Arizona, Nuevo México y Texas, de la Unión Americana.

En otras palabras, en esta franja se reducirá el IVA del 16 al 8 por ciento. El impuesto sobre la renta bajará al 20 por ciento. La gasolina, el gas y la electricidad costarán menos que en el resto del país y se aumentará al doble el salario mínimo.

Esta será la última cortina de desarrollo para retener con trabajo y bienestar a nuestros compatriotas en el territorio nacional. En cuanto al bienestar de nuestro pueblo el plan es combatir la pobreza y la marginación como nunca se ha hecho en la historia.

Hoy presento formalmente a este Congreso reformas constitucionales, proyectos de reforma a la Constitución, para establecer el estado de bienestar y garantizar el derecho del pueblo a la salud, la educación y a la seguridad social.

Haremos a un lado la hipocresía neoliberal. El Estado se ocupará de disminuir las desigualdades sociales, no se seguirá desplazando a la justicia social de la agenda del gobierno. No se condenará a quienes nacen pobres a morir pobres. Todos los seres humanos tienen derecho a vivir y ser felices, es inhumano utilizar al gobierno para defender intereses particulares y desvanecerlo cuando se trata de proteger el beneficio de las mayorías. No es lícito, no es jugar limpio defender la facultad del Estado para rescatar instituciones financieras en quiebra y considerarlo una carga cuando se busca promover el bienestar de los más necesitados.

Es pertinente, pues, exponer con toda claridad que vamos a atender y a respetar a todos. Que vamos a gobernar para todos, pero que le vamos a dar preferencia a los vulnerables y a los desposeídos. Por el bien de todos, primero los pobres.

Nuestra consigna de siempre es, a partir de hoy, principio de gobierno. Enumero algunas acciones.

Se cancelará la mal llamada reforma educativa. Se creará el Instituto Nacional para la Atención de los Pueblos Indígenas. Iniciará de inmediato el programa de atención médica y medicamentos gratuitos en las zonas marginadas del país y se volverá universal en todo el país este programa de atención médica y medicamentos gratuitos, a la mitad del sexenio. Es mi compromiso.

Los aumentos al salario mínimo no volverán a fijarse por debajo de la inflación como llegó a suceder en el periodo neoliberal. En 2 millones 300 mil jóvenes serán contratados para trabajar como aprendices en talleres, empresas, comercios y diversas labores productivas o sociales, y se les pagará un salario mientras se van capacitando de 3 mil 600 pesos mensuales. Ya no va a haber ninis. No se va a dar la espalda a los jóvenes ni se les va a ofender llamándoles de esa manera, porque no es culpa de ellos que no tengan oportunidad de trabajo y de estudio.

Se otorgarán 10 millones de becas a estudiantes en todos los niveles de escolaridad, se crearán 100 universidades públicas, se fomentará el deporte y las actividades artísticas, la ciencia y la tecnología.

La pensión a los adultos mayores, que fue una creación de nuestro movimiento, el programa de la pensión a los adultos mayores aumentará, esa pensión, al doble, y tendrá carácter universal. Es decir, también van a recibir este apoyo los jubilados, pensionados del ISSSTE y del Seguro.

Un millón de personas con discapacidad o con capacidades diferentes tendrán una pensión igual que la de los adultos mayores.

Se atenderá de inmediato a los damnificados por los sismos, se otorgarán créditos a la palabra a agricultores, ganaderos, pescadores, a dueños de talleres, a los artesanos, a pequeños comerciantes, a empresarios.

Se ayudará a productores del campo con subsidios y precios de garantía, y se venderá a precio justo una canasta de alimentos básicos para combatir la desnutrición y el hambre.

Es importante precisar que los destinatarios de estos programas recibirán lo que les corresponde de manera directa, personalizada, sin intermediarios, con el propósito de que no haya manipulación de los apoyos con fines electorales, y que lleguen a sus beneficiarios completos estos apoyos, sin moches ni comisiones indebidas.

También vamos a evitar afectaciones al medio ambiente. Aprovecho para reiterar que no se permitirá el fracking ni transgénicos.

Como se comprenderá la necesidad de emprender estas y otras acciones explica y justifica el plan de austeridad republicana al que nos hemos comprometido, y que, dicho sea de paso, no significa, como se piensa en otros países, un mero conjunto de ajustes en el gasto productivo y social del presupuesto. Aquí lo entendemos no solo como un asunto administrativo, sino como una política de principios, toda vez que implica terminar con los privilegios de la alta burocracia. Juárez decía que los funcionarios debían aprender a vivir en la justa medianía, y nosotros sostenemos que no puede haber gobierno rico, con pueblo pobre.

Por eso, bajarán los sueldos de los altos funcionarios públicos. Ya se aprobó esa ley en este Congreso, en esta legislatura. Van a bajar los sueldos de los de arriba, porque van a aumentar los sueldos de los de abajo.

Ya no habrá servicio médico privado para los altos funcionarios públicos. Se destinaban 5 mil millones de pesos nada más para el pago de la atención de servicios médicos a los altos funcionarios públicos.

Ya no habrá cajas de ahorro especial para los altos funcionarios públicos. Ya no hay, ya se aprobó esa ley.

Nadie podrá viajar en aviones o helicópteros privados a expensas del dinero público. Desde el lunes próximo se pondrá en venta el avión presidencial y toda la flotilla de aviones y helicópteros para uso de altos funcionarios.

El presidente de la República ganará el 40 por ciento de lo que recibía el presidente saliente.

No habrá compras de vehículos para funcionarios, ser reducirá en 50 por ciento el gasto de publicidad del gobierno.

Se van a disminuir las unidades administrativas en el país y no habrá oficinas del gobierno en el extranjero, salvo por supuesto, las embajadas y los consulados.

Los 8 mil elementos del Estado Mayor que se destinaban a cuidar al presidente y los 3 mil 200 agentes de Gobernación, hasta ayer dedicados al espionaje, pasarán a formar parte de la Guardia Nacional.

No viviré en Los Pinos y esa residencia oficial ya se abrió, desde hoy, al público y se integrará al bosque de Chapultepec para convertirse en uno de los espacios más grandes e interesantes del mundo para el arte y la cultura.

Otro cambio importante será el de la creación de la Guardia Nacional, si lo autoriza el pueblo y el Poder Legislativo, para enfrentar el grave problema de la inseguridad y de la violencia que padecemos. Esto significa replantear el papel de las Fuerzas Armadas ante la inoperancia de las corporaciones policiales.

Es indispensable aceptar que la Policía Federal creada hace 20 años para suplir la labor de las Fuerzas Armadas en el combate a la delincuencia, es en la actualidad un agrupamiento de apenas 20 mil efectivos, que carecen de disciplina, capacitación y profesionalismo.

En cuanto a los agentes ministeriales y los cuerpos policiales estatales y municipales, se debe reconocer, sin generalizar, que muchos están movidos por la corrupción y no por el deber del servicio público, y que su descomposición los pone bajo el dominio de la delincuencia. El ciudadano mexicano en la actualidad está en estado de indefensión. No tenemos policías para cuidar a los ciudadanos.

Siempre he pensado que ante el problema de la inseguridad lo pertinente es atender las causas que originan la violencia, y así lo haremos, pero ante la ineficiencia de las corporaciones policiales y el grave aumento de homicidios, robos, secuestros, feminicidios y otros crímenes, estoy solicitando al Congreso, con carácter urgente, la aprobación de una reforma constitucional que nos permita crear, con la integración de la Policía Militar, la Policía Naval y la Policía Federal, una Guardia Nacional para realizar funciones de seguridad pública, con pleno respeto a los derechos humanos.

Sé que es un tema polémico, pero tengo la obligación de expresar mi punto de vista con realismo y argumentos.

Las Fuerzas Armadas están entre las mejores instituciones de México. El Ejército Mexicano se constituyó en 1913 para enfrentar al gobierno usurpador de Victoriano Huerta. Se trata de un Ejército revolucionario, surgido del pueblo y que desde entonces ha experimentado pocos quiebres en su unidad y disciplina.

La última rebelión militar fue la del general Saturnino Cedillo, en 1938-1939 y nunca el Ejército Mexicano ha dado un golpe de Estado a una autoridad civil. Su lealtad al gobierno y su falta de ambición por el poder económico y político tiene en buena medida su explicación, entre otros factores, en que el Ejército Mexicano no es un agrupamiento elitista, sino que siempre se ha nutrido del pueblo raso. El soldado es pueblo uniformado.

Ciertamente no todos los militares han ostentado comportamientos intachables y tampoco debe omitirse el hecho de que el Ejército ha participado en actos de represión por órdenes de autoridades civiles. Pero en nuestros institutos castrenses no se han formado minorías corrompidas, como sucede en otros ámbitos del poder, y a diferencia de lo que ocurre en otros países, en México no se sabe de militares que formen parte de la oligarquía. Además, es un hecho que el Ejército cuenta con respaldo de la opinión pública, es una institución que a lo largo de su historia ha mantenido su profesionalismo y ha sido eficaz, sin duda, en tareas de auxilio a la población en casos de desastre, en terremotos, inundaciones, huracanes, y ha prestado otros servicios a la comunidad.

Las Fuerzas Armadas han hecho escuelas, tienen universidades, centros de investigación, poseen disciplina y espíritu de cuerpo, han mantenido su vocación nacionalista, y esto es muy importante, y nunca han estado subordinadas a ninguna hegemonía o fuerza extranjera.

Lo mismo puede decirse de la Secretaría de Marina, téngase en cuenta que esta dependencia se creó en 1940, cuando la original Secretaría de Guerra y Marina se dividió en dos instituciones.

Así pues, el Ejército y la Marina pueden ser previa preparación y capacitación para el respeto de los derechos humanos, y mediante la aplicación de protocolos para el uso de la fuerza, las instituciones fundamentales para garantizar la seguridad nacional, la seguridad interior y la seguridad pública.

Agrego que el Plan de Paz y Seguridad incluye la creación de 266 coordinaciones territoriales en el país. Todos los días desde las seis de la mañana voy a presidir, en Palacio Nacional, la reunión del Gabinete de Seguridad, en la cual recibiremos el parte o reporte de lo sucedido en las últimas 24 horas y tomaremos las medidas necesarias.

Añado que según nuestras leyes el titular del Poder Ejecutivo es el comandante supremo de las Fuerzas Armadas y reafirmo el compromiso de que el presidente de México nunca dará la orden de reprimir al pueblo ni será cómplice o encubridor de eventuales violaciones a los derechos humanos.

En materia de política exterior nos apegaremos a los principios constitucionales de no intervención, autodeterminación de los pueblos, solución pacífica de las controversias y cooperación para el desarrollo.

Mantendremos buenas relaciones con todos los pueblos y gobiernos del mundo, por eso agradezco la presencia del señor Michael Pence, vicepresidente de los Estados Unidos y a su señora esposa, Karen Pence.

Y quiero destacar que, desde el día primero de julio, desde el día de mi elección, he recibido un trato respetuoso del presidente Donald Trump, a quien agradezco que en plan de amistad haya enviado a esta ceremonia a su hija Ivanka.

La misma atención he recibido del primer ministro de Canadá, Justin Trudeau. Con ellos, con los dos mandatarios, con el presidente de Estados Unidos y con el primer ministro de Canadá estoy hablando para ir más allá del Tratado de Libre Comercio de América del Norte y lograr un acuerdo de inversión entre empresas y gobiernos de las tres naciones, para impulsar el desarrollo de los países centroamericanos y también del nuestro. Y enfrentar de esta forma, y no con medidas coercitivas, el fenómeno migratorio.

Me da mucho gusto contar con la presencia de presidentes de América latina y del Caribe. México no dejará de pensar en Simón Bolívar y en José Martí, quienes junto con Benito Juárez siguen guiando con sus ejemplos de patriotismo el camino a seguir de pueblos y de dirigentes políticos.

Gracias por estar aquí, Jimmy Morales Cabrera, presidente de la República vecina de Guatemala. Juan Orlando Hernández Alvarado, presidente de la República de Honduras y su señora esposa, Ana García. Óscar Samuel Ortiz Ascencio, vicepresidente de la República del Salvador. Colville Young, gobernador general también de nuestra vecina República de Belice. Miguel Díaz-Canel Bermúdez, presidente de los Consejos de Estado y de Ministros de la hermana República de Cuba.

Danilo Medina Sánchez, presidente de la República Dominicana. Jovenel Moïse, presidente de la República de Haití. Iván Duque Márquez, presidente de la República de Colombia. Nicolás Maduro Moros, presidente de la República bolivariana de Venezuela. Lenín Moreno Garcés, amigo Lenín, presidente de la República de Ecuador y su señora esposa Rocío González. Amigo Evo Morales, presidente del estado plurinacional de Bolivia. Martín Vizcarra Cornejo, presidente de la República del Perú.

Agradezco la presencia de Julie Payette, gobernadora general de Canadá. Brahim Ghali, presidente de la República Árabe Democrática Saharaui. De Kim Yong-nam, presidente de la República de la Asamblea Popular Suprema de la República Popular Democrática de Corea. Shen Yueyue, vicepresidenta de la Asamblea Popular China.

También agradezco, por los lazos de historia, de cultura, que nos unen, la presencia de Felipe VI, rey de España. Del primer ministro António Costa, de la República portuguesa. De Eugene Philip Rhuggenaath, primer ministro y ministro de asuntos generales de Curazao. Ana Birchall, viceprimera ministra de Rumania. De Lucía Topolansky, vicepresidenta de la República Oriental del Uruguay. De Gabriela Michetti, vicepresidenta de la República de Argentina. De Hugo Velázquez, vicepresidente de la República del Paraguay y su señora esposa, Lourdes Samaniego. De Claudia Dobles Camargo, primera dama de la República de Costa Rica.

Agradezco a muchos representantes de los organismos internacionales, de gobernadores, de autoridades, de varios países. Están aquí amigos entrañables como Miguel Ángel Revilla, presidente del gobierno de Cantabria y su señora esposa, Aurora Díaz. Está nuestro amigo, Jeremy Corbyn, miembro del Parlamento del Reino Unido, dirigente del Partido Laborista.

Está también un embajador de la poesía y de la congruencia, Silvio Rodríguez, y su esposa, Niurka González.

Amigas y amigos, llegué a la Presidencia de la República después de muchos años de lucha personal y colectiva. Aquí recuerdo a los que iniciaron este movimiento, a los que sembraron lo que ahora nosotros estamos cosechando. Dirigentes sociales, políticos, muchos que se nos adelantaron, pero fueron los precursores de esta lucha, de este movimiento. Nunca los vamos a olvidar.

Llegamos después de muchos años, y en mi caso, como en la mayoría de los que forman parte de este gran movimiento, sin dejar la dignidad en el camino, manteniendo en alto nuestros ideales, nuestros principios. En mi caso particularmente, también en el de muchos otros, mujeres y hombres, mi honestidad, que es lo que estimo más importante en mi vida.

Estoy preparado para no fallarle a mi pueblo. Ahora que venía para acá, se emparejó un joven en bicicleta y me dijo: Tú no tienes derecho a fallarnos. Y ese es el compromiso que tengo con el pueblo: No tengo derecho a fallar.

Nada material me interesa ni me importa la parafernalia del poder. Siempre he pensado que el poder debe ejercerse con sabiduría y humildad, y que sólo adquiere sentido y se convierte en virtud cuando se pone al servicio de los demás.

Estoy consciente de la gran expectativa que existe entre los mexicanos, y el desafío que significa enfrentar los grandes y graves problemas nacionales, pero soy optimista y creo que vamos a salir bien, vamos a enfrentar bien los grandes y graves problemas nacionales porque creo en el pueblo y en su cultura, la cultura del pueblo, de nuestro pueblo, las culturas de México que siempre han sido nuestras salvadoras.

Con nuestras culturas hemos enfrentado epidemias, terremotos, inundaciones, hambrunas, invasiones, guerras civiles, crisis económicas, epidemias, malos gobiernos y otras calamidades, y siempre hemos resurgido con dignidad y con orgullo.

La herencia de civilizaciones nos ha forjado como un pueblo tenaz, combativo, luchón, emprendedor, honesto, con una excepcional idiosincrasia de fraternidad, de amor al prójimo, de verdadera solidaridad.

Nuestro pueblo no es flojo, no es perezoso, no es indolente, por el contrario, es de las sociedades más trabajadoras del mundo, y ahí está el ejemplo de nuestros paisanos migrantes que por necesidad han ido a ganarse la vida a Estados Unidos y ahora están enviando a sus familiares 30 mil millones de dólares anuales.

Esas remesas son la principal fuente de ingresos de nuestro país y el dinero de mayor beneficio social que recibimos del extranjero.

México no es el cuerno de la abundancia que su silueta en el mapa pareciera evocar, pero aun así tenemos muchos recursos naturales: agua, petróleo, gas, yacimientos minerales, vientos, sol, playas, contamos con bosques y selvas, con buenas tierras para la producción agropecuaria y forestal, y somos de los países con mayor biodiversidad en el mundo.

Por eso estoy optimista, creo que ya estamos logrando, se está iniciando y ya vamos en el camino de lograr el renacimiento de México, que nos vamos a convertir en una potencia económica y, sobre todo, en un país modelo que habrá de demostrar al mundo que acabar con la corrupción es posible, y así lo haremos, porque de esa manera construiremos una sociedad más justa, democrática, fraterna y siempre alegre.

Son tres cosas las que necesitamos para enfrentar la crisis de México y dos de ellas están aseguradas de antemano. Lo reitero, un pueblo trabajador y suficientes riquezas naturales. Pronto, muy pronto, tendremos lo tercero, un buen gobierno, y en ese compromiso empeño mi honor y mi palabra.

Gobernaré con entrega total a la causa pública, dedicaré todo mi tiempo, mi imaginación, mi esfuerzo a recoger los sentimientos y a cumplir con las demandas de la gente. Actuaré sin odios, no le haré mal a nadie, respetaré las libertades, apostaré siempre a la reconciliación y buscaré que entre todos y por el camino de la concordia, logremos la cuarta transformación de la vida pública de México.

Por último, así como soy juarista y cardenista, también soy maderista y partidario del sufragio efectivo y de la no reelección.

Trabajaré 16 horas diarias para dejar en seis años muy avanzada la obra de transformación, haré cuanto pueda para obstaculizar las regresiones en las que conservadores y corruptos estarán empeñados.

Por eso aplicaremos rápido, muy rápido, los cambios políticos y sociales para que si en el futuro nuestros adversarios, que no nuestros enemigos, nos vencen, les cueste mucho trabajo dar marcha atrás a lo que ya habremos de conseguir. Como dirían los liberales del siglo XIX, los liberales mexicanos, que no sea fácil retrogradar.

Pero también dejo en claro que bajo ninguna circunstancia habré de reelegirme, por el contrario, me someteré a la revocación del mandato porque deseo que el pueblo siempre tenga las riendas del poder en sus manos. En dos años y medio habrá una consulta y se les preguntará a los ciudadanos si quieren que el presidente de la República se mantenga en el cargo o que pida licencia, porque el pueblo pone y el pueblo quita, y es el único soberano al que debo sumisión y obediencia.

Acepto el reto y les invito a participar para celebrar juntas y juntos, el esplendor y la grandeza futura de nuestro querido México. Gracias de todo corazón. Que viva México. Viva México. Viva México.

7-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 11 Mutual Legal Assistance)

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(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 7 focuses on Article 11 of the Zero Draft (Mutual Legal Assistance). 


 


Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 11 (Mutual Legal Assistance)
Flora Sapio 


On 14 July 2014, the Human Rights Council created an Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and Other Business Enterprises with respect to human rights (OEIGWG). According to Resolution 26/9, the Working Group has the mandate to: “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.

The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions - Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions - Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9 – summary of discussions - Tuesday 16 October 2018
Article 10 – summary of discussions - Wednesday 17 October 2018
Article 11 – summary of discussions - Wednesday 17 October 2018
Article 12 – summary of discussions - Wednesday 17 October 2018
Article 13 – summary of discussions - Tuesday 16 October 2018
Article 14 – summary of discussions - Thursday 18 October 2018
Article 15 – summary of discussions - Thursday 18 October 2018

Article 11 (Mutual Legal Assistance)
 
1. States Parties shall cooperate in good faith to enable the implementation of commitments under this Convention and the fulfillment of the purposes of this Convention.

2. States Parties shall afford one another the widest measure of mutual legal assistance in initiating and carrying out investigations, prosecutions and judicial proceedings in relation to the cases covered by this Convention, including access to information and supply of all evidence at their disposal and necessary for the proceedings in order to allow effective, prompt, thorough and impartial investigations covered under this Convention. The requested Party shall inform the requesting Party, as soon as possible, of any additional information or documents needed to support the request for assistance and, where requested, of the status and outcome of the request for assistance. The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request.

3. Mutual legal assistance under this Convention is understood to include, but is not limited to:

a. Taking evidence or statements from persons;
b. Effecting service of judicial documents;
c. Executing searches and seizures;
d. Examining objects and sites;
e. Providing information, evidentiary items and expert evaluations;
f. Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;
g. Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;
h. Facilitating the voluntary appearance of persons in the requesting State Party;
i. Facilitating the freezing and recovery of assets;
j. Assistance to, and protection of, victims, their families, representatives and witnesses, consistent with international human rights legal standards and subject to international legal requirements including those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment;
k. Assistance in regard to application and interpretation of human rights law;
l. Any other type of assistance that is not contrary to the domestic law of the requested State Party.

4. Without prejudice to domestic law, the competent authorities of a State Party may, without prior request, transmit information relating to criminal matters covered under this Convention to a competent authority in another State Party where they believe that such information could assist the authority in undertaking or successfully concluding inquiries and criminal proceedings or could result in a request formulated by the latter State Party pursuant to this Convention. The transmission of information shall be without prejudice to inquiries and criminal proceedings in the State of the competent authorities providing the information.

5. States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are subject of investigations, prosecutions or judicial proceedings under this Convention, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place, is fully respected.

6. States Parties shall carry out their obligations under the previous Article in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in a way not contrary to domestic law.

7. In accordance with domestic systems, each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution.

8. State Parties shall provide judicial assistance and other forms of cooperation in the pursuit of access to remedy for victims of human rights violations covered under this Convention.

9. Any judgement of a court having jurisdiction in accordance with this Convention which is enforceable in the State of origin of the judgement and is no longer subject to ordinary forms of review shall be recognized and enforced in any Party as soon as the formalities required in that Party have been completed, whereby formalities should not be more onerous and fees and charges should not be higher than those required for the enforcement of domestic judgments and shall not permit the re-opening of the merits of the case.

10. Recognition and enforcement may be refused, at the request of the defendant, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that (a) the defendant was not given reasonable notice and a fair opportunity to present his or her case; (b) where the judgement is irreconcilable with an earlier judgement validly pronounced in another Party with regard to the same cause of action and the same parties; or (c) where the judgement is contrary to the public policy of the Party in which its recognition is sought.

11. Mutual legal assistance under this article may be refused by a State Party if the violation to which the request relates is not covered by this Convention or if it would be contrary to the legal system of the requested State Party.

12. A Party shall not decline to render mutual legal assistance for criminal matters within the scope of this Convention on the ground of bank secrecy.


Article 11 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on 17 October 2018, from 10  AM to 13 PM, together with articles 10 (Legal Liability) and 12 (International Cooperation).

Written comments specific to Article 11 were submitted by:

  • 1 expert
  • 8 states (China, Costa Rica, Egypt, India, Mexico, Namibia, Peru, Russian Federation)
  • 2 NGOs


Comments by Experts

Surya Deva, UN Working Group on Business and Human Rights: mutual legal assistance among states is critical to provide access to effective remedy, especially in transnational cases. The June 2017 report of the Working Group found makes a series of recommendations on how to improve the effectiveness of cross-border cooperation between States with respect to law enforcement on the issue of business and human rights.
The text of Article 11 should be based on existing frameworks and good practices that have proved to be workable. For example, if multiple courts having jurisdiction over certain business-related human rights abuses give conflicting judgments, it is unclear how Article 11(9) would deal with recognition and enforcement of such judgments.

Written comments by Maddalena Neglia, FIDH, are not available on the OHCHR website.

Comments by States

China: we note this article adopts a general approach based on existing international treaties and national practices. We will make recommendations when we discuss specific wording in the future. At present one problem is mutual legal assistance in criminal cases, at least when the request involves mandatory measures. The precondition is dual criminality, that is the relevant act must constitute a crime both in the requesting party and the requested party. We suggest considering adding this provision.

Costa Rica: the right to prompt justice and to compensation is a basic principle of the doctrine of human rights. The guarantee of this right is essential in situations that require the search of resources in foreign courts. National courts face the challenges of having to make judgments according to the legal principles of foreign jurisdictions, differences in ruling between countries, the gathering of evidence and witnesses abroad, and legal uncertainty for companies and victims. In this regard, Costa Rica respectfully asks what technical instances are foreseen in this Instrument to address these challenges? In Costa Rica, administrative bodies in charge of protecting and supervising human rights in labor law do not have the legal power to share data, since data is confidential and known only to the parties. The exchange of such information is governed by the principles of legality contained in the Political Constitution and in the General Law of Public Administration.

Egypt: Article 11.11 requires states to include provisions on universal jurisdiction in their legislation. This will have the effect of admending the domestic legislation of states if there is a controversy over the application of the terms at the international level.

Article 11.12 may contravene national laws on bank secrecy.

India: we believe both Articles 10 and 11 need more clarity as certain elements have the potential to infringe upon the sovereignty of states. We believe terms like ‘universal jurisdiction’ need more clarity. We are also the view that additional grounds for refusal of legal assistance which are already provided in the United Nations Conventions against Corruption and Transnational Organized Crimes should also be part of this article as they factor in the sovereign rights of states.

Mexico: our delegation is worried about Article 11.3(k), because it leaves to the discretion of states the interpretation of the content and scope of human rights, which would be contrary to international law and would result in the relativization of the norms of human rights and legal insecurity. Article 11.3(k) could be reformulated by eliminating the reference to the interpretation of international law of human rights, and including a reference to domestic legislation: “assistance in regard to the application of domestic law.”

With reference to Article 11.6 we think it is important to include the concept of international law, and draft the article as “State Parties shall afford one another assistance in a way not contrary to domestic [and international] law.”
Namibia: articles 11 & 12 are clear and is clearly based on other international instruments, which provides for MLA and International Cooperation, and which have been implemented with great successes.

Peru: we understand that providing reparation to victims for abuses that take place in more than one jurisdiction requires a complex legal scaffolding that requires mutual legal assistance. However, the provision of the current article detail a series of cooperation responsibilities for states, that would entail enormous efforts for their application. Once again, the burden would be excessive for developing countries.

Russian Federation:with regard to article 11, in our opinion, the obligation of states provided in its paragraph 2 to provide each other with legal assistance, including access to information and evidence, does not correlate with the obligation to ensure the procedural rights of those in respect of whom such actions are taken. As a result, the struggle for the rights of some may end up violating the rights of others.

Comments by NGOs

International Association of Democratic Lawyers: mutual legal assistance should not be totally dependent on future agreement between states. More restrictive criteria for the possibility of alleging forum non conveniens should be present.

Thank you Mr. Chair,
I speak on behalf of the Brazilian AIDS Interdisciplinary Association. We coordinate a group of 17 NGOs in Brazil working to remove patent barriers to the access to health. We are also part of the Global Campaign to Dismantle Corporate Power, which comprises more than 600 organizations, movements and networks, at national, regional and global levels.
Currently in the world, billions of people don’t have access to life saving treatment, because of high medicines prices. Pharmaceutical companies charge those prices because they have patent monopolies over those drugs. The result is that State cannot implement public health policies, consumers cannot purchase the medicines in private pharmacies. The pharmaceutical companies – US and EU-based – and their CEOs have left people to die in name of profits and in name of greed. Therefore, it is fundamental that the binding instrument regulates the obligations of TNCs in respect to human rights, as clearly state in the resolution 26/9.
In this sense, the obligations of states and TNCs must be addressed in separate topics. We suggest that the following phrases are included: (a) TNCs are liable civilly, administratively and criminally for all obligations listed in this Convention that are; (b) States Parties must establish administrative, civil and criminal liability for TNCs and their managers. It must not matter if States and TNCs operate as perpetrators or accomplices of violations. We believe the Convention must make clearer the relation between the main company and its subsidiaries, licensees, subcontractors and so forth. In addition, States parties must provide for sanctions, including the dissolution of the TNC, and oblige the TNC to pay the fees.
We also suggest to exclude the references to “domestic law”, since some states do not have provisions of such kind and it may put in jeopardy the scope of this Convention.
 Thank Mr. Chairperson

International Association of Democratic Lawyers:

En lo que se refiere al Artículo 11, para mejor provisión de la asistencia legal mutua, ésta no debe estar totalmente condicionada a los acuerdos interestatales futuros, así como deben estar presentes criterios más restrictivos para la posibilidad de alegación del forum non conveniens.


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