A/HRC/43/55
mutual legal assistance applies to all civil, criminal and administrative proceedings, and he
encouraged States to provide technical assistance to support those lacking expertise or
capacity. He also recommended that States collaborate with national human rights
institutions, trade unions and women’s organizations. The expert criticized the grounds on
which recognition and enforcement of judgments may be refused, stating that they are too
broad. Additionally, he called for stronger language to address the power asymmetry created
by trade and investment agreements.
18.
The second expert suggested that the title of article 12 (“Consistency with
international law”) was unusual because, in his view, the revised draft legally binding
instrument was not in accordance with international law. He illustrated this by highlighting
the expansive extraterritorial jurisdiction permitted by the terms of the legally binding
instrument, arguing that such an excessively broad conception of jurisdiction raised serious
concerns with respect to State sovereignty and territorial integrity. Additionally, the expert
noted that article 10 (10) neglected to include “lack of jurisdiction of the foreign court” as a
ground for rejecting the recognition or enforcement of foreign judgments despite this being
a common basis for non-recognition.
19.
Focusing on article 12, the third expert suggested renaming the title of the article to
“Relationship with other international agreements”. He supported the change in article 12 (6)
of the revised draft legally binding instrument to cover “any bilateral or multilateral
agreements”, which broadened the scope from the zero draft’s reference to only trade and
investment agreements. He noted this approach was in line with recent discussions at the
United Nations Commission on International Trade Law, and the expert considered this
change would encourage a more inclusive, mutually supportive and less fragmented
application of international law. Additionally, he proposed adding a provision requiring
human rights impact assessments with a view to ensuring future agreements’ compatibility
with the treaty.
G.
Article 13
20.
Recalling that the effectiveness of international instruments depends on their
implementation mechanisms, the first expert recognized the critical importance of providing
clarity on how to operationalize the obligations found in the legally binding instrument. In
this regard, he noted that such mechanisms needed to be flexible enough to take into
consideration the various compliance strategies of States in different legal regimes. The
expert called on the working group to consider the lessons learned and challenges discussed
in the Secretary-General’s reports on the treaty body system. Additionally, he proposed
expanding the Committee’s powers such that it could aid capacity-building, be consulted on
draft legislation, and participate in dispute settlement between States parties.
21.
The second expert, speaking in her personal capacity, called for more clarity in article
13, particularly with respect to who will form the Committee, who will be monitored by the
Committee, and what the functions of the Committee will be. With regard to the composition
of the Committee, she suggested limiting members to one expert per region. The expert urged
the working group to consider requiring companies to report to the Committee. Furthermore,
she suggested that the Committee be able to consider complaints submitted by victims and
non-governmental organizations.
27
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