A/HRC/43/55
precision in the title of the article than the title used in the previous draft (“Jurisdiction”). It
was broadly agreed that article 7 could lead to courts asserting jurisdiction over actions taking
place extraterritorially, although there was significant disagreement over the desirability of
that. Several delegations and non-governmental organizations welcomed the greater choice
of forums for potential claimants, and argued that victims should have greater agency over
where their claims should be adjudicated. However, some delegations noted that that could
lead to conflicts of jurisdiction and suggested that the legally binding instrument clarify how
to address competing claims of jurisdiction. Other delegations and business organizations
voiced concern over an expansive view of jurisdiction and argued that it would be
inappropriate to allow claimants to forum shop. In their view, permitting extraterritorial
jurisdiction in an expansive way could violate the principles of sovereign equality and
territorial integrity.
80.
Many delegations and non-governmental organizations proposed expanding article 7
to include forum necessitatis (particularly for situations of conflict), and there were also calls
to prohibit the doctrine of forum non conveniens. Many non-governmental organizations
requested clearer language regarding jurisdiction with respect to harm in supply chains.
Furthermore, some delegations and non-governmental organizations proposed adding
references to universal jurisdiction, competent regional courts and the creation of an
international court.
81.
With respect to article 7 (2), the question was asked whether the reference to “natural”
person was needed; one delegation suggested amending the language of the provision if the
reference were to stay in the legally binding instrument. Several delegations called for
clarification over what constituted “substantial business interests” in article 7 (2) (d).
82.
While some delegations appreciated the inclusion of an article on statute of limitations
and called for it to be strengthened, others considered the wording of article 8 to be
problematic. Many delegations sought clarification, in article 8 (1), of the meaning of “all
violations of international human rights law and international humanitarian law which
constitute the most serious crimes of concern to the international community as a whole”.
They argued that the provision would be difficult to apply without more guidance. One
delegation argued that statutes of limitations were already not applicable to a wider range of
offences than those referenced in article 8 (1), and was concerned that that provision could
restrict the current state of the law. The question was asked whether the article applied only
to criminal cases. Two delegations recommended deleting the reference to “international
humanitarian law”.
83.
Some delegations and organizations considered article 8 (2) to be unclear, particularly
the reference to a “reasonable” period of time. At least one delegation rejected the notion that
statutes of limitations should be removed for offences that were less serious than the most
serious crimes. Some delegations proposed ways to ensure a fairer conception or application
of statutes of limitations, for instance, by making statutes of limitations longer for more
serious abuses, taking into account the continuous nature of some offences, and tolling
statutes of limitations for children, for those who could not have known of the harm earlier,
and for some persons with disabilities.
84.
Delegations requested clarification of and more precise language in article 9. At least
two delegations called for a clear distinction to be made between civil and criminal actions,
with one delegation arguing it would not be appropriate for article 9 to apply to criminal
cases. Some delegations sought clarification as to when article 9 (2) would apply and who
would make the determination as to the applicable law. At least one delegation and several
non-governmental organizations suggested that victims should have the ability to choose the
appropriate law. One delegation considered article 9 (2) (b) to be problematic, as it provided
for too much uncertainty and arbitrariness, potentially contravening principles of due process.
Additionally, one delegation recommended deleting article 9 (3), while another suggested
amending the provision to replace “prejudge” with “preclude”.
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