Introduction

While under classical international law the State was the main subject of rights and duties, international human rights law has marked a shift from a State-centric to a victim-centric approach. Several human rights treaties, for example, allow individuals to file complaints against States for human rights violations and abuses. However, the role and responsibility of third parties, such as transnational corporations (TNCs), remains a grey area. Attempts to address this issue can be seen in the latest ‘Legally Binding Instrument to Regulate, in international human rights law, the Activities of Transnational Corporations and other Business Enterprises’ (Revised Draft). This draft is currently at a negotiation stage where attempts are being made to protect the rights of the individual against human rights violations perpetrated by multinational companies and business entities.

The Revised Draft, released by the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights (OEIGWG) on 16^th July 2019, has incorporated substantial changes to its 2018 Zero Draft. Based on negotiations at the OEIGWG’s fourth session in October 2018, a series of informal consultations, comments, and recommendations received from States and other relevant stakeholders helped inform this latest Revised Draft. The Draft signifies an attempt towards enacting the first-ever internationally binding instrument on business and human rights. It is therefore unique in its aim to put an obligation on corporate entities for human rights violations, along with States, and it includes provisions which are victim-oriented. The victim-centric approach of the Zero Draft is reflected in the statement of the Chairmanship of the OEIGWG, according to which the aim of this Treaty is to ‘ensure effective access to justice and remedy to victims of human rights violations … and to prevent occurrence and repetitions … [of such violations].’ This approach is also emphasized under the Preamble and operative clauses of the Revised Draft, which focus on the rights of individual victims and on ensuring effective remedies and justice to them. Major parts of the Revised Draft show an inclination towards the victim-centric approach, whereby ‘victims’ of human rights violations are defined and their substantive rights are laid down in separate provisions.

Definition of Victims

The inclusion of the definition of ‘victims’ in the Revised Draft is an important step towards enhancing the victim-oriented approach in international legal instruments. The Revised Draft defines ‘victims’ in a broad manner under Article 1(1) to include individuals and groups who have suffered not only physical harm but also mental injury or emotional suffering. This definition is largely based on the definition of ‘victims’ provided under Principle 8 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 (UN Principles), the first comprehensive restatement of the rights of victims to have access to justice and to reparation. Remarkably, the scope of the definition of ‘victims’ under Article 1(2) of the Revised Draft goes beyond the UN Principles as it covers violations of environmental rights.

However, the definition clause restricts the application of the rights of the victim to immediate family or dependents of the direct victim ‘where it is appropriate, and in accordance with domestic law.’ The word ‘and’ makes the role of domestic law preponderant in this respect, which is also reflected in the definition of ‘victim’ provided under Principle 8 of the UN Principles. This mandatory condition is not in line with the definition of victims provided under other international instruments such as the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and the Convention on Cluster Munitions; ultimately, it rests on the whims and fancies of each State to expand their definitions of ‘victim’.

The definition fails to place proper emphasis on the categories of victims who are disproportionately affected by and more vulnerable to human rights abuses. However, the Preamble can be interpreted to expand the scope of the term ‘victims’ where it has recognized the distinctive and disproportionate impact of business-related human rights abuses and the need to take into account the specific circumstances and vulnerabilities of certain categories of people such as women and girls, indigenous people, persons with disabilities, migrants and refugees. The similar but more refined approach can be seen in the Preamble as well as the substantive provisions of the Treaty on the Prohibition of Nuclear Weapons (TPNW) which also deals with human rights violations caused by use or testing of nuclear weapons. Article 6 of this Treaty titled, ‘Victim Assistance and Environmental Remediation,’ specifically obligates States Parties to provide adequate ‘age and gender-sensitive assistance to its victims. Guidance for the inclusion of a similar provision can be drawn from TPNW in providing a more comprehensive approach to victim-centric provisions as merely defining the term ‘victim’ will not ensure proper inclusion of individuals in the Revised Draft. Rather, identifying traditionally marginalized groups and individuals who are more prone to suffer human rights abuses will show a willingness to address the differences that exist among individual victims.

Part 2 discusses how the Revised Draft, through its provisions on the rights of victims, demonstrates a more nuanced victim-centric approach.

Nidhi Singh holds a B.A. LLB (Hons.) from Chanakya National Law University and an LLM (International Law) from South Asian University. She is currently working as a Legal Research Fellow in the Trade Policy Division, Department of Commerce and Industry, Government of India.

This post reflects the author’s personal views.