A/HRC/40/48
suggested that the instrument use the terminology of principle 12 of the Guiding Principles,
which referred to internationally recognized human rights. In addition, some delegations
suggested expanding the wording of article 3 (2) to cover international humanitarian law or
human rights and fundamental freedoms. Some NGOs made suggestions about which rights
to include, such as environmental rights, gender equality, the right to self-determination and
the collective rights of indigenous peoples.
75.
Many delegations requested more precision for the definition of victims contained in
article 4 (1). Some were of the view that the definition was too broad, and there was concern
that it could be abused by people who did not even need to establish a link to a company’s
harmful activities. At least one delegation and one NGO noted that the list of harms was not
entirely clear, and others asked why the impairment of a person’s human rights needed to be
“substantial” before he or she could be considered a victim. Another delegation and an NGO
challenged the use of the term “victim” in general and suggested that it would be more
appropriate to refer to “person” or “rights holder”. Some delegations and NGOs suggested
including references to particular groups, such as peoples or communities, vulnerable
populations and human rights defenders.
76.
Although the comments on article 3 (1) were applicable to article 4 (2), arguments
specifically regarding the latter article were also made. Some delegations and NGOs
questioned the provision of article 4 (2) under which business activities of a transnational
character were understood to mean for-profit activities alone. That qualification, in their
view, unnecessarily narrowed the scope of the instrument and exempted certain companies
that were responsible for human rights abuses. There were also calls for explicit references
to parent companies and/or global supply chains, as well as transnational corporations and
other business enterprises.
F.
Article 5
77.
The Chair-Rapporteur opened the panel discussion by clarifying that the goal of article
5 was to allow victims to choose the forum where their legal cases should be heard. In the
working group’s previous discussion, having such a choice had been identified as key to
ensuring effective access to justice. The sources that had been drawn on to draft the article
had included European Union regulations, general comment No. 24 (2017) on State
obligations under the International Covenant on Economic, Social and Cultural Rights in the
context of business activities of the Committee on Economic, Social and Cultural Rights and
general comment No. 16 (2013) on State obligations regarding the impact of the business
sector on children’s rights of the Committee on the Rights of the Child.
78.
Several delegations and many NGOs stressed the importance of including an article
on jurisdiction and noted that transnational corporations and other business enterprises often
escaped accountability by taking advantage of differing rules among States regarding
jurisdiction. Thus, they expressed the hope that the instrument could address such gaps and
provide some uniformity in that area. There were several calls for clearer provisions in article
5 and internal consistency with other parts of the draft (articles 7 and 10 in particular). An
NGO asked whether article 5 addressed civil jurisdiction alone and requested clarification of
the draft’s approach to criminal jurisdiction.
79.
Delegations expressed their support for article 5 (1) (a), as it reaffirmed jurisdiction
on the basis of territoriality. There was greater discussion surrounding article 5 (1) (b), since
it could permit the exercise of extraterritorial jurisdiction. A business organization argued
that the exercise of such jurisdiction threatened States’ sovereignty and would divert attention
from the need to strengthen access to remedy in the jurisdictions where harms occurred. Some
delegations raised similar concerns, noting that States had abused extraterritorial jurisdiction
in the past, and requested that the exercise of extraterritorial jurisdiction be appropriately
limited. Many NGOs disregarded those concerns and argued that the basis for jurisdiction in
article 5 (1) (b) was accepted in international law – States had the right to regulate the actions
of their nationals abroad. Calls to include additional bases of jurisdiction in article 5 (1) were
also made. Two delegations suggested permitting courts to assert jurisdiction when the victim
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