States and business can and should prevent threats against defenders
and environmental defenders are on the frontline of the fight to save our
planet from climate change, safeguard human rights and protect vulnerable communities
from harm. They champion causes that benefit us all: sustainability,
biodiversity and justice.
They call out corruption and push for changes in laws, policies and practice to ensure environmental and land rights are upheld.
Yet few people face greater threats. Once again, as part of an ongoing trend, the number of defenders murdered rose in 2017. Two hundred and seven activists were killed, leaving communities without their courageous spokespeople and champions.
It is primarily the responsibility of states (through their governments) to guarantee that all human rights defenders can carry out their activism safely.
However, those defenders who work on land and environmental issues face specific and heightened risks because they are seen as a threat to profit as well as power. In the vast majority of cases, they are killed because they have questioned or opposed a business enterprise – one usually linked to the extraction of natural resources, such as mining, large-scale agriculture or logging. With much of the violence driven by the thirst for profit, those who hold the purse strings have the power – as well as the legal responsibility - to be a force for good.
WHO IS RESPONSIBLE?
A range of actors influence business projects. These same actors can ensure that land and environmental defenders are able to carry out their work without fear of being attacked or killed:
- Governments of the countries where defenders are at risk. Politicians, state officials and security forces – at the national and local level – should all take action to protect the rights of defenders.
- Bilateral aid and trade partners – politicians and officials of countries doing business in, or providing aid to, places where defenders are at risk.
- Companies – Whether big or small, and whether operating where defenders are
at risk or buying commodities and products from those who are, companies can
play an important role in supporting defenders and respecting their rights.
- Investors providing finance for companies and projects. They include private banks, development banks, pension funds and private equity, among others. Development banks are somewhat of an anomaly. They have the leverage of an investor, but – given that their shareholders are states – the duty of a government. In our 2017 report Defenders of the Earth, Global Witness explored the role of development banks in protecting defenders.
WHAT SHOULD BE DONE?
In Defenders of the Earth, Global Witness published a range of general recommendations, which can be interpreted and implemented by the state and business actors outlined above. In 2017, steps were made by some actors to implement these recommendations which are formulated along three lines:
- Tackle root causes: The only effective prevention in the long term. This means combating corruption, securing land titles, respecting collective and customary land rights, and guaranteeing the right of affected communities to give or withhold their free, prior and informed consent regarding the use of their land and natural resources.
- Support and protect: Business and states can take a range of measures to recognise the role of defenders, advocate for their protection, provide them with the tools they need to carry out their activism effectively, and guarantee their safety.
- Ensure accountability: To prevent future threats, those responsible for attacks on defenders must be brought to justice, while those who fail to support and protect them should face political, financial and judicial consequences. Ensuring accountability is a fundamental step in dissuading future attacks, tackling one of their principal root causes: impunity.
A LEGAL DUTY TOWARDS DEFENDERS
At the heart of the problem lies an irresponsible approach to business. On too many occasions, the quest for profit drives business decisions, fuels corruption and divides communities, sparks conflicts and damages the environment. Land and environmental defenders have expertise, experience and an understanding of their local context which could help solve these problems.
If activists are to carry out their work in safety and be champions of the environment and their communities, then states and businesses must comply with their legal duty to protect and respect these activists’ rights. As we will see later, it is also in their interest to do so.
THE STATE DUTY UNDER INTERNATIONAL LAW AND GUIDANCE
The legal obligation to protect human rights lies primarily with the state. The UN Guiding Principles articulate how existing international law should be applied in the sphere of business and human rights. They are the global standard for preventing and addressing the risk of adverse human rights impacts linked to business, establishing an internationally accepted framework for enhancing standards and practice.
The Guiding Principles are built upon three pillars: the state duty to protect human rights, the corporate responsibility to respect human rights, and access to remedy for victims of business-related abuses. Principle One says that, within their territory or jurisdiction, states must protect people against human rights abuses by third parties, including business enterprises. Therefore, if a business infringes on the rights of defenders, the government has a legal obligation to stop it.
States should also be guided by the UN Declaration on Human Rights Defenders. It sets out how existing human rights law should be applied to support and protect human rights defenders, of which land and environmental defenders are a subset. The Declaration
highlights the rights that states must protect if defenders are to be able to carry out their activism safely, for example the right to freedom of expression and the right to life.
The UN special rapporteur on human rights defenders has expanded upon the Declaration, outlining nine conditions – including the need for conducive legal frameworks and effective protection policies – that states must put in place for defenders to operate in a ‘safe and enabling environment’.
The risks facing land and environmental defenders often stem from a lack of opportunity for communities to give or withhold their consent. States can prevent the escalation of conflict which may result in attacks, by implementing existing international conventions that safeguard the right of communities to participate in and give their free, prior and informed consent on decisions that affect, among other things, their land and environment. These conventions include the International Labour Organization Convention 169, Article 25 of the International Covenant on Civil and Political Rights and the UN Declaration on the Rights of Indigenous Peoples.
There is also a growing body of jurisprudence laying out the extraterritorial duty of governments to protect the rights of citizens in other countries where their businesses are active. This means that it is not only the governments of those countries where defenders face greatest risks who have a duty to protect activists, but also bilateral aid and trade partners operating in those countries. Government policies on business and human rights must, therefore, drive positive actions to support defenders at home, but also abroad.
Embassies, therefore, have a huge role to play. The EU, Canada, Norway, Switzerland, the UK and the embassies should support at-risk human rights defenders, which could be applied by other states too.
In September 2016, the International Criminal Court widened its remit so that politicians and other individuals, including business people, can now be held criminally responsible under international law for crimes linked to the land-grabbing and environmental destruction which defenders risk their lives to oppose.
THE BUSINESS DUTY UNDER INTERNATIONAL LAW AND GUIDANCE
The UN Guiding Principles establish that ‘business enterprises should respect human rights’. They go on to explain: ‘Because business enterprises can have an impact on virtually the entire spectrum of internationally recognized human rights, their responsibility to respect applies to all such rights.’ This, therefore, includes respecting all rights that apply to land and environmental defenders, as laid out in the UN Declaration on Human Rights Defenders.
This means that business must respect the rights of defenders and communities to express their views on and protest against business activities. It means refraining from harming defenders, restricting their rights or interfering with their activities, and it extends to consulting and engaging with defenders to identify, mitigate and remedy any adverse human rights impacts of business operations.
The Guiding Principles oblige business to respect human rights regardless of the state’s willingness or ability to protect them. This means that companies operating in countries with a weak rule of law or high levels of corruption are responsible for upholding the highest standards of human rights. If they cannot guarantee that affected communities can participate in decisions relating to their business, or are unable to mitigate any risks to defenders stemming from their project, then they should not do business there.
Using deference to local laws as an excuse for failing to protect the rights of communities and defenders is unacceptable, because those laws may lack sufficient protections within them. Companies and investors must guarantee that private security firms, contractors, subsidiaries or anybody along their supply chain are not impeding the rights of defenders and local communities, but are rather properly engaging them, as recommended by the Guiding Principles.
As such, it is not just companies with projects in places where defenders are at risk who should change their practices. Investors financing those companies and other businesses buying from them have responsibilities too. For example, a bank should never back a project unless it is certain that it will not undermine or restrict the rights of local people. Meanwhile, no company should use timber in its furniture or palm oil in its foodstuffs until it is convinced that rights of affected communities are being protected along the supply chain.
The OECD Guidelines for Multinational Enterprises set out a practical due diligence framework for business across all sectors. They recognise that businesses can cause or contribute to adverse human rights impacts through both actions and omissions, and therefore have a duty to prevent, cease and mitigate such impacts.
This would include those affecting defenders. The Guidelines emphasise a range of actions which businesses can take to leverage change in the practices of any entity involved in their projects, including business partners, entities in its supply chain, and ‘any other non-State or State entity directly linked to business operations, products or services’.
Another OECD document – ‘Responsible Business Conduct for Institutional Investors: Key considerations for Due Diligence under the OECD Guidelines for Multinational Enterprises’ – outlines how investors should implement the guidelines. It makes clear that investors, ‘even those with minority shareholdings’, have a responsibility to consider risks ‘throughout their investment process’ and to use their leverage with companies they invest in ‘to influence those investee companies to prevent or mitigate adverse impacts’, which would include threats against defenders.
THE BUSINESS CASE FOR SUPPORTING, NOT ATTACKING, DEFENDERS
Not only do companies and investors have a legal duty to respect rights and support defenders, it is also good for business. Affected communities’ and defenders’ local expertise is essential to helping business identify, prevent and mitigate human rights abuses, which in turn serves to minimise legal, reputational, operational and regulatory risks.
Their local knowledge can help business navigate laws and understand local contexts, establish risk management procedures, and design effective grievance policies, mitigation strategies and remediation mechanisms, building strong foundations for a project’s long-term security and effectiveness. By engaging defenders and local communities, business is better prepared to prevent and mitigate negative human rights impacts and build relationships with local stakeholders.
This approach can minimise the risk of community conflict and social strife, which can lead to interrupted production, security costs, crisis management, litigation and reputational damage. In other words, projects are more likely to be successful and sustainable.
Evidence shows that failure by companies to avoid conflicts over land can significantly increase their financial risk, increasing the project cost or even in some cases endangering the future of the company. The Rights and Resources Initiative, for example, found that a typical investment encountering land tenure problems can increase the cost of projects by up to 29 times.
Ethical business and the management of environmental, social and governance risks are often rewarded by both consumers and markets. What is more, a context in which defenders are safe is a context conducive to business stability and success too. Both benefit from transparency, rule of law and civic freedoms. What is good for defenders is ultimately good for business.
WHAT SHOULD BUSINESS DO?
In 2015, a cross-regional group of 39 human rights organisations outlined the following principles for how business might play a proactive positive role to engage and support human rights defenders. These principles should be incorporated into any corporate policy on human rights and environmental defenders. See here for details of how these principles can be put into practise.
- Respect and engage
- Support and partner
- Advocate and seek remedy for defenders at risk, and stand against laws and policies restricting them;
- Make additional efforts and take specific action to engage and protect women defenders and other groups facing particular risks.
AGRIBUSINESS – The deadly face of irresponsible business in 2017
In 2017, no industry was deadlier than agribusiness. Almost a quarter of the land and environmental defenders murdered in 2017 were protesting against agricultural projects. This is an increase of 100% from the previous year and provides a chilling illustration of the implications of irresponsible business.
To stop the killings, governments must regulate agribusiness to ensure that companies involved act in accordance with international law, and that those which breach it are prosecuted.
For their part, consumers can demand guarantees that the products they buy are not associated with attacks on defenders.
But champions in the agribusiness industry itself, and among those that underwrite and facilitate its activities, are needed as a matter of urgency. Companies that implement, invest in, insure or use products cultivated through agribusiness projects must make sure the rights of communities and defenders are protected, including by implementing our recommendations.
The sector would also do well to prioritise implementation of its own voluntary guidelines (see Voluntary guidelines for agribusiness, and their relevance to defenders), in particular:
- Guaranteeing proper consultation and participation of affected communities, and the right to
free, prior informed consent;
- Ensuring transparency
in all areas of business, and a zero tolerance policy on corruption;
- Ensuring proper due
diligence along supply chains;
- Ensuring that these
guidelines are properly implemented at every moment of the project
- Ensuring proper
grievance mechanisms and access to remedy.
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