A/HRC/37/67
Convention against Transnational Organized Crime and the United Nations Convention
against Corruption. One delegation also said that regulating the recognition and
enforcement of foreign judgments under the treaty should not overlap with the work being
undertaken at the Hague Conference on Private International Law.
114. One delegation and a business organization argued that international cooperation
should be developed generally and not focus on the specific regime. There was a fear that
developing new obligations on international cooperation could conflict with other processes
or send contradictory messages as to United Nations standards and its broader activities.
Instead, States should focus on strengthening existing international cooperation
mechanisms and continue to develop national action plans. Another delegation stressed that
enhancing international cooperation could also benefit businesses. Furthermore, efforts
should be taken to increase peer pressure among States to strengthen implementation of the
Guiding Principles.
115. A regional organization stressed its advocacy for increased mutual legal assistance,
including for cross-border investigation. It noted that the provisions under that chapter were
interesting; however, it mentioned that already much was being done, for instance the work
of the OHCHR accountability and remedy project on cross-border cooperation. It also
questioned how the provisions in that section would allow for implementation given the
current constraints, such as the lack of resources of prosecutors’ offices to investigate cases
involving transnational corporations and other business enterprises. Some delegations and a
panellist suggested that provisions on technical assistance could be included to address
some of those challenges.
116. Delegations called for greater specificity in the provisions of that section, taking into
account that different levels of cooperation were required. There were multiple suggestions
to differentiate the section based on whether cooperation was needed for civil, criminal or
administrative matters, and to include more precise provisions on the means of cooperation
needed for these different types of regimes. Additionally, there were calls for more detail
into what processes should be required, in particular for evidence collection and sharing,
and reciprocal recognition of civil judgments. It was also noted that a provision should be
included to ensure reciprocity among States.
I.
Panel IX. Mechanisms for promotion, implementation and monitoring
117. The first panellist suggested that drafters focus on four principles in that section.
First, accountability, lessons on which could be drawn from processes regulating business
conduct outside of the human rights context, such as the World Bank Inspection Panel.
Second, transparency, given the importance of access to information. Third, participation,
although caution should be exercised regarding abuse by the private sector. Fourth,
cooperation, which should be ensured at the national, regional and international levels.
118. The second panellist discussed cases in which victims were unable to access justice
through existing institutions. She argued for the creation of an international court for
affected individuals and communities to hold transnational corporations accountable. While
supportive of the creation of an ombudsman, as proposed in the elements, she claimed that
that would not be an adequate substitute for an international judicial body.
119. The third panellist welcomed that section in the elements document and noted that
international mechanisms were needed. Implementation lay foremost with national
jurisdictions, but a complementary, properly resourced international court should exist
when national jurisdictions fail. The treaty body proposed in the elements would also be
welcome and should be endowed with the ability to make recommendations, as well as
referrals to the international court.
19
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