Written contribution by FIAN International on the Third Revised Draft of the Legally Binding Instrument (LBI) on transnational corporations and other business enterprises with respect to human rights
...This document: i) explains aspects that constitute positive advancements in the current draft and must be maintained during the negotiations, and ii) provides specific text proposals for other aspects that can be further improved...
FIAN considers positive and welcomes changes that ensure a strong gender perspective in key provisions of the instrument, including the explicit mention of the Gender Guidance for the Guiding Principles on Business and Human Rights in § 14 of the preamble and in access to remedy (Art 7). Nevertheless, States should avoid any use of the expression “persons in a vulnerable situation”, but rather use “marginalized or disadvantaged groups” or “groups facing discrimination” as to not victimize such groups and use the terminology applied by the UN Treaty Bodies...
Also, of relevance would be the explicit mention of the term “global production chain” in the definition of “business relationship” under article 1.5...
According to exchanges with some trade unions, the inclusion of the global production chain is key to recognize the globalized human component behind transnational businesses...
Article 4 – Rights of victims: ...the rights included in this article are not just right of victims already defined as such but are rights of all affected communities and individuals. Therefore, states should change the title of the article to “Rights of affected communities and individuals”...
Art. 4.2.f on the right to access information should be further elaborated to include stronger requirements for the disclosure of information in order to facilitate legal proceedings...
Article 7 - Access to remedy: ... With regard to article 7.5, the newly phrased provision is welcomed, to the extent that it incorporates our recommendation to give courts the power to order the reversal of the burden of proof in appropriate cases to fulfil the victim’ right to access to remedy. In legal regimes where the reversal of the burden of proof is not provided for, the legally binding instrument should strongly encourage the enactment or amendment of laws to allow for this provision in order to fulfil victims’ right to access remedies...
Article 8 – Legal liability...The explicit inclusion of joint and several liability is key to ensure that all companies involved in the abuse in terms of article 8.6 are liable for the harm caused by others through their business relationships, as well to guaranty integral remedies for the affected communities or individuals...