As the 8th session of the business and human rights treaty process approaches, the question of whether there will be progress surfaces again. As the 8th session of the business and human rights treaty process approaches, there is a great opportunity to develop the current revised draft of the Binding Treaty to enhance the vague framework provided by the UN Guiding Principles on Business and Human Rights (UNGPs) in relation to two key issues crucial for access to remedy: legal liability and access to justice.

Legal liability

The Chairperson-Rapporteur has made important choices on the issue of legal liability in the Legal Binding Instrument (LBI), which affect other provisions of the treaty. For example, priority has been given to the issue of civil liability. This type of liability seems to raise fewer objections than administrative or criminal liability, likely due to its general existence in most domestic legal systems. Indeed, the substantive issue of liability has not only been clearly established in the text of the LBI, but the procedural aspects linked to it have also materialised through references to statutes of limitations, civil jurisdiction and even applicable law. However, criminal liability or administrative liability have not been removed from the text, despite not being developed at all. Keeping such a reference without specifying the relevant rules could raise important objections and be an obstacle to creating a much-needed consensus in the negotiations over a central element of the instrument.

Civil liability, as presented in the text, is not perfect. The draft tries to capture the cause/contribute/direct linkage framework presented by the UNGPs in the context of human rights due diligence (with some slight modifications in the recent Chair proposals). However, the UNGPs present that responsibility framework in the context of risk management practices, not in terms of legal liability. While the first two modes of liability (cause and contribute) may find certain analogies in domestic law (where the latter is far from being a regular judicial practice in civil law cases involving human rights), trying to accommodate a concept based on the use of leverage to improve conditions of respect of human rights may bring unintended risks and tension to the process.

Furthermore, not all activities would require a judge to consider whether business conduct (and particularly human rights due diligence) was adequate and reasonable to prevent harm prior to determining liability. In several legal systems, inherently dangerous activities would not admit a defense based on conduct (negligence or fault). Perhaps a regime based on “simpler” (and already existing) modalities of liability, such as subjective and objective liability found on civil law traditions, could facilitate an understanding of the modes of liability proposed by the draft instrument and their implementation in domestic law.

Access to justice

Among the different procedural aspects addressed by the draft treaty, the issues of the statute of limitations and the burden of proof have been highlighted. While not as visible as the issues of jurisdiction and applicable law, they are crucial aspects of access to justice, with the first being a potential procedural hurdle for plaintiffs in transnational litigation cases, and the second a measure that could incentivise the conscious implementation of human rights due diligence processes by companies.

The question of statutes of limitations is one where progressive development of international law is necessary. Generally, such a procedural issue is left to domestic jurisdictions, except for international criminal law, which establishes that statutes of limitations for international crimes shall not be applicable. But for civil liability cases, international law (at least as it relates to human rights and environmental issues) is generally silent. The Third Revised Draft tried to advance the issue, proposing that there shall be no statute of limitations for international crimes, and that claims linked to human rights abuses not constituting international crimes should be allowed a sufficient and reasonable amount of time for victims to present their claim. Considering the focus of the draft treaty on civil liability and the scarce practice on this topic, it could contribute to develop international law in this regard.

The question of the burden of proof is equally important, and its relevance is highlighted by the Escazú Agreement. It establishes the obligation for States Parties to have, when appropriate and as applicable, the reversal of the burden of proof and the dynamic burden of proof to facilitate the production of evidence of environmental damage. If adopted in similar terms, the draft treaty would ask judges, where appropriate and applicable, to require defendants to prove they took adequate measures to prevent damage. While not all cases may require this, a similar measure could also be useful for issues relating to statutes of limitations, particularly in transnational litigation cases where it is evident that the limitation period was inappropriate.

By Humberto Cantú Rivera, University of Monterrey, Mexico