Neither law of contracts nor foreign policy is weightier than human rights and humanitarian law
India’s arms sales to Israel: Bad legally, worse ethically—Part 2
Neither law of contracts nor foreign policy is weightier than human rights and humanitarian law
Ravi Nair·September 24, 2024
Part 2 of a four-part deep-dive into the recent case before the Supreme Court of India calling for a halt to arms sale to Israel as it commits genocide against the Palestinians.
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Read Part 1 here.
THE recent decision of the Supreme Court of India refusing to call a halt to Indian arms sales is evidence that the court was not apprised of developments in the area of business and human rights both in India and internationally. To fully understand the issues a few paragraphs from the Supreme Court Order bear quoting in their entirety.
Excerpts from the Supreme Court Order
8.
“The second aspect of the matter which requires to be noticed is that the petition seeks a cancellation of the existing licences and prohibition on the issuance of new licences for the export of arms and military equipment by Indian companies. Some of these licenses may be governed by contracts with international entities, including within the State of Israel.
“The grant of injunctive relief by this court would necessarily implicate a judicial direction for breach of international contracts and agreements. The fallout of such breaches cannot be appropriately assessed by this court and would lay open Indian companies which have firm commitments to proceedings for damages which may affect their own financial viability.”
9.
“Third, the statutory provisions of our law confer sufficient power on the Union government if it decides to act in such cases. For instance, prohibitions can be imposed by the Union of India under the Foreign Trade (Development and Regulation) Act, 1992 as well as under the provisions of the Customs Act, 1962.
“Whether in a given case, any such action is warranted is a matter which has to be decided by the Union government bearing in mind economic, geo-political and other interests of the nation in the conduct of international relations.
“In taking an appropriate decision, the government bears into account all relevant considerations including the commitments of the nation at the international level.”
Also read: The UNHRC concluding observations do not allow for semantics
10.
“The danger in the court taking over this function is precisely that it would be led into issuing injunctive reliefs without a full and comprehensive analysis or backdrop of the likely consequences of any such action. The self-imposed restraint on courts entering into areas of foreign policy is, thus, grounded in sound rationale which has been applied across time.”
Business has human rights responsibilities— domestically and internationally
On July 16, 2018, the UN Human Rights Council’s Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (OEIWG) published its initial zero draft.
One of the draft clauses accepted was Article 3.1 “This (legally binding instrument) shall apply, except as stated otherwise, to all business activities, including particularly but not limited to those of a transnational character.”
An open-ended intergovernmental working group to elaborate on the contents of an international regulatory framework relating to the activities of private military and security companies was set up in September 2017.
An informative discussion document was circulated and discussed. It gives an excellent overview of where the standard-setting process is:
“4. Contracting States
- Determine which military/security services the State may not contract for
- Establish a private security company and private military company procurement process that incorporates an assessment of a company’s capacity to perform services in conformance with the law, including robust criteria for the selection of the company
- Incorporate requirements into government contracts to ensure respect for national law, human rights law, and applicable international humanitarian law, including providing relevant guidance
- Monitor and ensure accountability, including through addressing issues of jurisdiction and immunities, for companies operating under a government contract.”
The 10th session of the OEIWG is to take place in October 2024.
The third revised draft
During the 9th session of the OEIWG, held in October 2023, States debated the third revised draft. The Working Group’s ninth session highlighted significant disagreements between States and failed to produce a new, consolidated text building on the third draft.
One of the draft clauses accepted was Article 3.1 “This (legally binding instrument) shall apply, except as stated otherwise, to all business activities, including particularly but not limited to those of a transnational character.”
The revised draft sought to bring attention to transnational (or cross-border) activities of business enterprises while also applying its substantive provisions to other businesses that do not have cross-border activities.
Another important issue was its coverage of all human rights and all kinds of human rights abuses and violations.
Rights of victims
The provisions on the rights of victims (now draft Article 4) have been streamlined and reorganised, while preserving most of the content of the zero draft. This Article is vital because it tackles many of the procedural barriers to access to justice and remedy and reparation that victims of business human rights abuse face.
Human rights defenders
The revised draft focuses attention on the provisions on human rights defenders in the preamble, but also in the existent draft Article 4:
“4.9: State parties shall take adequate and effective measures to guarantee a safe and enabling environment for persons, groups and organisations that promote and defend human rights and the environment, so that they are able to act free from threat, restriction and insecurity.”
And:
4.15: “Take adequate and effective measures to recognise, protect and promote the rights recognised in this (LBI) to persons, groups and organisations that promote and defend human rights and the environment.”
The revised draft sought to bring attention to transnational (or cross-border) activities of business enterprises while also applying its substantive provisions to other businesses that do not have cross-border activities.
These explicit provisions to enhance the protection of human rights defenders working in the field of corporate accountability have been a key demand by several State delegates and civil society observers, and are essential to enable individuals and groups of victims of abuse to pursue strategies in search of justice and redress.
Prevention
The wording of draft Article 5 is a huge improvement. While preserving most of the zero draft content, it adopts the definitions of due diligence vis-à-vis human rights that businesses need to perform, as established in the United Nations Guiding Principles on Business and Human Rights (UNGPs): identification, prevention, mitigation, monitoring and communication.
A step presently missing is the obligation to integrate the assessment findings into the policies and operations of companies.
Also read: India arms exports: A protection of civilians lens is required
It is not clear why details of measures that could be taken within each step of the due diligence process are listed in a separate paragraph (5.3), when those measures could have been listed, illustratively, within each of the steps, unless they are relevant for more than one step.
It is also surprising to see frequent references to businesses’ “contractual relationships” instead of the reference to broader “business relationships” (which include contractual relationships) adopted in the UNGPs. This is an aspect that will probably be corrected during further negotiations.
Legal liability
A major improvement is in the area of legal liability, where some of the zero draft provisions are preserved, but the bulk of the Article, currently draft Article 6 has been substantially redrafted.
In particular, certain provisions which aim at creating a comprehensive system of legal liability for human rights abuses committed by business enterprises or with their participation, have been redrafted.
For instance: “6.1 States parties shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability for human rights violations or abuses in the context of business activities, including those of transnational character.”
This provision potentially encompasses civil, criminal and administrative liability but also the various modalities and models of civil liability, including torts based on negligence, strict liability and other forms of civil liability.
The implementation of this provision and others will necessitate adequate guidance that can be provided, among other sources, by the monitoring body proposed under the treaty.
States parties shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability for human rights violations or abuses in the context of business activities, including those of transnational character.
Article 6.6 posits a standard of legal responsibility of one company in relation to the harm caused by another company, no matter where the latter is located when the former company controls or supervises the activities that caused the harm.
However, the reach of this provision is obscured by the reference to “contractual relationship” between the two companies, which is an unnecessary limitation to the potentially vast array of ways in which companies relate one to the other. This will certainly be addressed in forthcoming negotiations.
But among all provisions, it is Article 6.7 that stands out for its potential reach and impact in terms of legal responsibility and reparations for victims:
“6.7 Subject to their domestic law, State parties shall ensure that their domestic legislation provides for criminal, civil or administrative liability of legal persons for the following offences.
- War crimes, crimes against humanity and genocide as defined in Articles 6, 7 and 8 of the Rome Statute for the International Criminal Court
- Torture, cruel, inhuman or degrading treatment, as defined in Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Enforced disappearance, as defined in Articles 7 and 25 of the International Convention for the Protection of All Persons from Enforced Disappearance
- Extrajudicial execution, as defined in Principle 1 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions
- Forced labour as defined in Article 2.1 of the ILO Forced Labour Convention 1930 and Article 1 of the Abolition of Forced Labour Convention 1957
- The use of child soldiers, as defined in Article 3 of the Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 1999
- Forced eviction, as defined in the Basic Principles and Guidelines on Development-based Evictions and Displacement
- Slavery and slavery-like offences
- Forced displacement of people
- Human Trafficking, including sexual exploitation
- Sexual and gender-based violence.”
Article 6 also requires that domestic law provide legal liability for “acts that constitute attempt, participation or complicity in a criminal offence in accordance with Article 6.7” but controversially keeps the reference to “criminal offences as defined by their domestic law”. This is certain to be discussed further.
Also read: UNHRC’s examination of India’s periodic report after 28 years: Part 8
This Article provides, for the first time, a list of well-defined offences that would trigger legal liability of business enterprises under domestic law. Such liability could be civil, administrative or criminal.
It should be clear that Article 6.7 refers to the legal responsibility of a business for some of the most serious atrocities usually considered as crimes under international law. Many States do not recognise in their legal systems the criminal responsibility of legal persons (business corporations).
India’s National Action Plan on Business and Human Rights
The government of India prepared a draft action plan on the basis of the initial zero draft.
As reported, the National Action Plan reaffirms India’s commitments towards realisation of human rights and the promotion of socially responsible businesses. It provides an overview of India’s legal framework, setting out the State’s duty to protect human rights, the corporate responsibility to respect human rights and access to remedy against business‐related human rights violations.
Explicit provisions to enhance the protection of human rights defenders working in the field of corporate accountability have been a key demand by several State delegates and civil society observers.
The Ministry of Corporate Affairs is steering the process of formulating a National Action Plan on Business and Human Rights (NAP)… 2. The obligation to draft an NAP stems from India’s endorsement of the UNGPs adopted in the UN Human Rights Council (UNHRC). The Principles are articulated as three pillars:
- State duty to protect
- Corporate responsibility to respect
III. Access to remedy
An NAP needs to be context-specific and address the country’s actual and potential business-related human rights abuse. An NAP needs to be developed in an inclusive and transparent manner. NAP processes need to be regularly reviewed and updated. Currently, about 45 countries, including India, are either drafting or have finalised their NAPs.
Also read: Interview with Adila Hassim, counsel for South Africa versus Israel before the ICJ
Recommendations have been made on some key contents of an NAP. Two of them are:
Section 1: Statements of commitments to implement the UNGPs.
Section 2: Background and context to the NAP. How the NAP relates to other existing government policy strategies such as national development plans, corporate social responsibility strategies, and national plans implementing international labour laws.
Organisation convention and recommendations
The other key contents of an NAP relate to organisation convention and recommendations:
Section 3: Government’s expectations from businesses, including expectations that businesses respect human rights throughout their operations based on UNGPs and other guidance documents.
Section 4: Government response clarifying how the government currently addresses adverse business-related human rights impacts and outlining commitments for further activities.
Section 5: The ministry has been taking various initiatives to ensure responsible business conduct by companies. The National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, 2011 (NVGs) have been revised and released as National Guidelines for Responsible Business Conduct to align with UNGPs and Sustainable Development Goals (SDGs).
The committee on Business Responsibility Reporting (BRR) constituted by the ministry to formulate BRR formats for listed and unlisted companies is finalising its report.
War crimes, crimes against humanity and genocide as defined in Articles 6, 7 and 8 of the Rome Statute for the International Criminal Court.
Further, a zero draft of the NAP has already been published to showcase the considerable progress made by the country in the field of business and human rights, which has been formulated after placing it in the public domain for inputs, sharing it with relevant ministries for comments, and consultations with relevant stakeholders. All these measures shall culminate in the NAP document.
Domestic accountability for international arms transfers
India is in the dubious company of some European and North American States that have continued to supply arms and armaments to Israel in spite of findings of every United Nations body and other multilateral human rights and humanitarian law body that Israel is the principal violator of every norm not just of law but human decency in Gaza, in the Occupied Territories and now in Lebanon.
Also read: The brutality in Gaza rekindles the horrible memories of women in war
The arms trade is regulated by international law, in particular the Arms Trade Treaty (ATT), adopted by the UN General Assembly in 2013 through Resolution 67/234B and which entered into force in 2014.
Domestic jurisdiction
Domestic jurisdiction is presently the principal means of enforcing the ATT as well as other international laws and rules that prevent or prohibit State or corporate actors from contributing to major human rights and humanitarian law violations.
Business responsibility to respect human rights under Pillar II of the UNGPs exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations, inferring that companies therefore need to go beyond what is legally required in the relevant jurisdiction or refrain from engaging in business that would otherwise be permitted under that jurisdiction.
India is in the dubious company of some European and North American States that have continued to supply arms and armaments to Israel.
Business policies and processes in place must be preventive— aimed at preventing human rights violations— not merely defensive— corporate due diligence— aimed at protecting the company itself.
Investor pressures must be built by public campaigns towards ethical supply chains, and robust legislative action and public scrutiny. Failure to address the human rights risks entailed in current business models would increasingly lead to not just reputational and financial risks but also legal risks of complicity in serious international humanitarian law violations.
The lessons of the Bhopal Gas Tragedy and the failure of corporate responsibility and the courts in that case are unfortunately not part of either public or institutional memory. We need to do better.
Read Part 1 here.
Next week— Part 3 of the series
The Israel arms trade: Emerging legal benchmarks
The writer is the executive director, South Asia Human Rights Documentation Centre.