A/HRC/43/55
73.
Some delegations requested greater clarification as to the extent of liability of legal
persons (including with respect to criminal law) envisaged in articles 6 (2) and (3).
Additionally, one delegation proposed merging articles 6 (3) and (4). While one delegation
welcomed article 6 (5), another delegation and a business organization suggested removing
it from the text.
74.
Several delegations and organizations called for greater clarity and stronger wording
in article 6 (6), particularly with respect to parent/subsidiary relationships. Replacing the
phrase “contractual relationships” with “business relationships” would help in that regard.
However, some delegations and business organizations voiced the concern that, as it was
currently worded, article 6 (6) could be interpreted as unfairly placing liability on companies
for failing to prevent harm committed by distant third parties.
75.
Most of the debate centred on article 6 (7) and its many provisions. Many delegations
and organizations welcomed the list of crimes to which criminal, civil or administrative
liability were to attach, although there were many calls for clarification as to whether the list
was meant to be exhaustive. Most argued that the list should be open-ended, as it was likely
that important offences had been omitted and flexibility in the article could ensure that it
captured future legal developments. Several delegations supported the proposal that the
words “inter alia” be added before the phrase “for the following criminal offences”.
Additionally, there were several proposals, which received relatively broad support, for other
crimes to be included, such as environmental crimes and crimes relating to economic, social
and cultural rights, corruption, privacy and financing of terrorism. One non-governmental
organization also requested the deletion of the reference to domestic law at the beginning of
article 6 (7).
76.
However, several delegations voiced serious concerns about the article as drafted.
Some questioned whether several of the article’s provisions were applicable to non-State
actors. Additionally, several delegations took issue with the fact that many of the crimes
listed were defined by reference to instruments that their States had not accepted. That was
most evident with respect to article 6 (7) (a) and its reference to the Rome Statute of the
International Criminal Court, as well as article 6 (7) (c) regarding the International
Convention for the Protection of All Persons from Enforced Disappearance. There was
concern that the inclusion of those references would make it politically difficult to become a
party to the future legally binding instrument. Several delegations also considered articles 6
(7) (h) and (k) to be too vague, and requested that they be properly defined.
77.
Two delegations voiced concern over the wording of article 6 (9), as it could be read
as requiring the imposition of (criminal) legal liability on legal entities. One delegation
proposed adding the phrase “criminal, civil or administrative” before “legal liability” to
clarify the meaning.
E.
Articles 7, 8 and 9
78.
Introducing articles 7, 8 and 9, the Chair-Rapporteur noted that article 7 had been
clarified and restructured, and the title had been changed to “Adjudicative jurisdiction” to
highlight that the article dealt with the key role of courts in achieving justice for victims. The
text of article 8 on statute of limitations had been bolstered and amended to expand States’
leeway with respect to determining the best means of implementation. The new text called
for a “reasonable” period of time for the investigation and prosecution of violations,
particularly for cases involving another State, in which processes took longer due to the need
for mutual legal assistance and cooperation. Article 9 had been revised to ensure consistency
with article 7 and to give courts a broader range of options when determining the appropriate
law. The new wording provided for the possibility for matters of substance to be governed
by the law of the State where the violations had occurred or where the victim was domiciled,
so long as it was in the best interest of the victims and their rights to access to justice and
effective remedy.
79.
There was general appreciation for the fact that article 7 on adjudicative jurisdiction
had been included, as rights holders’ claims were often rejected on jurisdictional grounds.
Two delegations and at least one non-governmental organization welcomed the greater
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