Dr. Chris O'Connell:

With regard to the importance of this treaty, in the briefing we have highlighted several elements as being key. Where we are now is with a hopeful text but we are still concerned about the process and the possibility, as happened with the corporate sustainability due diligence directive, of corporate capture and interference. It is really important for states that are strongly in favour of multilateralism and human rights to speak up. This is the moment. This process has been a long time coming but there is momentum and hope behind it, as I said in my opening statement. However, it is also precarious because, as we have seen, when binding regulations start to crystallise at whatever level, opposition becomes very strong. That is really important.

A key element of this is reducing these barriers to justice. On access to justice, Mr. Jiménez Villalta has talked about the case they had to take in the Canadian courts in British Columbia to get a form of access to justice for a clear human rights violation. There had been shootings of unarmed peaceful protestors by the security staff of the mining company and yet there was no possibility of justice in Guatemala. The barriers they had to jump to finally get some measure of justice in the Canadian courts were huge. One of them is the legal doctrine of forum non conveniens, which says that even when a country legally has jurisdiction, it can opt out of it if feels there is a more convenient jurisdiction. In this case, the company argued that Guatemala was the better place to get justice while, at the same time, the head of security for the mining company was allowed by the Guatemalan state to leave prison, leave the state and evade justice.

One can see the contradiction right there. The burden of proof was mentioned. There is, right now, a provision in the treaty text what would revert the burden of proof and put it on the company. In the case of the Xinka Parliament, what they have found relates not only to the power but also the information around their case, such as the pollution of water with arsenic. The company has far more information than the Guatemalan state when it comes to that. It is recognising, in that text, the power imbalance and the information asymmetries, and taking steps to address that. Those sorts of measures that would reduce those barriers to justice are key.