A/HRC/43/55
clarification of the meaning of the term “substantial effect” in article 3 (2) (c). Some
delegations also recommended additions to article 3 (2), for instance in relation to projects
on transboundary natural resources and activities undertaken by electronic means.
43.
Many delegations and some organizations voiced concern over the reference in article
3 (3) to “all human rights”. The delegations argued that the formulation was overly broad and
vague. That could lead to implementation challenges, since the formulation might not comply
with the principle of legality, and different States could interpret it in different ways, causing
different standards to apply among the States parties to the instrument. Several alternative
formulations were proposed, such as “international human rights law”, “internationally
recognized human rights” and “all human rights obligations undertaken by the States parties”.
References could also be made to “fundamental freedoms” and/or “international
humanitarian law”. Some delegations suggested aligning the text with other instruments, such
as the Guiding Principles on Business and Human Rights, the Universal Declaration of
Human Rights or Council resolution 26/9. One delegation proposed deleting the provision
altogether, arguing that it added little value, while others argued it was a key provision that
should remain.
44.
Two delegations and business organizations considered article 4 to be generally
problematic. In the view of some, the article was redundant given that the rights of victims
were already adequately provided for in international and domestic law. One delegation
argued that a detailed article in that context could have the consequence of giving victims
harmed by transnational corporations greater rights than those harmed by States. However,
some States and non-governmental organizations considered article 4 to be one of the most
important articles in the instrument, and critical to ensuring that those harmed had effective
access to justice. In their view, the article should be retained and any particular issues could
be addressed on a case-by-case basis.
45.
Two delegations and a non-governmental organization called on the working group
to consider amending the title of the article. One delegation noted that, as the article covered
both the rights of victims and the obligations of States, the current title (“Rights of victims”)
should be amended to make it more accurate, and the provisions should be more clearly
categorized. Another delegation and a non-governmental organization thought it would be
more appropriate for the title of the article to focus on “Access to remedy” or “Access to
justice”, since that was the focus of the article. It was suggested that, given the focus on
access to remedy, it would be more logical for the article to be moved to after article 5, on
prevention, and article 6, on legal liability. Some delegations proposed ways of reformulating
the article in a clearer way. For instance, one delegation suggested categorizing all of the
provisions under three headings: (a) substantive rights of victims; (b) procedural rights of
victims; and (c) State obligations to protect the rights of victims. Another delegation
suggested that the article categorize the rights and obligations according to type of proceeding
(e.g., criminal, civil or non-judicial).
46.
Several delegations and non-governmental organizations made specific textual
suggestions. For instance, it was suggested that each provision refer only to “abuses”, or to
“violations and abuses”, as there was some inconsistency in the terminology used in that
article and the terminology used in the rest of the revised draft legally binding instrument.
One delegation recommended replacing all instances of “victims shall” with reference to
victims’ rights, with “States shall” with reference to guaranteeing or protecting the rights of
victims. There were also several calls to make additions to the text, for instance by inserting
references to victims of conflict situations, international humanitarian law, parts of the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, the State duty to protect and global justice mechanisms.
47.
One delegation suggested that article 4 (1) was unnecessary, although it did not oppose
retaining the provision. The same comment was made in relation to articles 4 (2) and 4 (3).
One business organization called for the text to be clearer, particularly with respect to the
definition of “psychological well-being”. One delegation proposed adding a reference to
fundamental freedoms, and several non-governmental organizations called for the article to
reference gender-responsive assistance to victims.
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