A/HRC/43/55
of proof in certain circumstances and recommended the deletion of the phrase “subject to
domestic law” and the clarification of the phrase “where needed” in the provision.
6.
The third expert underscored the importance of recognizing the rights contained in
article 4, as there was a need to address the imbalance of power between rights holders and
corporations. One important way to address this imbalance is through increased access to
information, and she called for the working group to expand upon and strengthen articles 4
(6) and 4 (11) on that topic. The expert requested more clarity as to the role of non-judicial
mechanisms and their potential to impede access to justice. She also welcomed article 4 (16),
considering the reversal of the burden of proof particularly helpful to address challenges
related to access to information.
C.
Article 5
7.
Underlining the importance of going beyond a “comply and explain” approach, the
first expert emphasized the need for companies to take proactive measures to prevent human
rights harm when conducting human rights due diligence. He called for the legally binding
instrument to clarify that conducting human rights due diligence will not automatically
absolve a company from liability. However, the expert recommended that, when a company
has established it has conducted human rights due diligence, the burden of proof should be
shifted to the victim to demonstrate that the company could have implemented actions that
could have prevented the harm.
8.
The second expert insisted that explicit reference be made to trade unions in article 5
(3) and to the ILO Tripartite Declaration of Principles concerning Multinational Enterprises
and Social Policy in the preamble. She stressed that human rights due diligence requirements
should take into account freedom of association and collective bargaining. She also called
for article 5 (3) (b) to reference “free, prior and informed consent” instead of “consultations”
in order to bring the provision more in line with the ILO Indigenous and Tribal Peoples
Convention. Additionally, the expert commended the inclusion in article 5 (5) of language
recognizing the issue of undue corporate influence, as well as the removal in article 5 (6) of
exemptions for small and medium-sized undertakings from human rights due diligence
requirements.
9.
The third expert highlighted recent developments in various States’ national laws with
respect to human rights due diligence, particularly in the fields of child labour and modern
slavery. He recognized the closer alignment of the revised draft legally binding instrument
with the Guiding Principles on Business and Human Rights with respect to human rights due
diligence, though he provided several suggestions for ensuring greater complementarity. For
instance, he suggested adding in an explicit mention that such diligence is supposed to be an
ongoing process, and, noting limitations in the phrase “contractual relationships”, he
recommended the use of the phrase “business relationships” throughout the text.
Additionally, he requested the working group to consider a limited defence for companies
based upon a showing of human rights due diligence.
D.
Article 6
10.
The first expert, speaking in her personal capacity, noted that before talking about
legal liability, one first has to establish the applicable law; however, in her view, it was
unclear what legal standards apply, and to who, in the revised draft legally binding
instrument. She argued that certain areas of international law (such as the grave breaches
provisions in international humanitarian law) already apply to non-State actors, including
companies, and she advocated for the legally binding instrument to clearly impose direct
obligations on companies. The expert further suggested that article 6 be restructured such
that there would be sections covering general principles, how acts could be attributable to
companies, and on the relationship of the treaty with other areas of law.
11.
The second expert considered article 6 to be a major development in setting
international standards in this field. In his view, the article can be divided into three
categories. The first category covers the legal liability of a business for abuses it, itself
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