Protecting Human Rights and Environmental Defenders
by Lauri R. Tanner, graduate of both the J.D. and LL.M. programs in International Human Rights at Golden Gate University School of Law in San Francisco.
Human rights defender is a term used to describe people who, individually or with others, act to promote or protect human rights.i Some individuals and groups are working to protect the human right to a healthy and safe environment, and also defend the rights of victims of environmental degradation.
Today, such advocates – particularly environmental defenders – often find themselves not only vulnerable to abuses by State interests but also the interests of powerful economic actors.ii
In 1999, the United Nations General Assembly adopted the Declaration on Human Rights Defenders,iii which led to an expert mandate on Human Rights Defenders that reports to the UN Human Rights Council (HRC).iv
The current (since 2008) Special Rapporteur Margaret Sekaggya delivered a compelling report to the UN General Assembly in August 2010,v focusing on human rights abuses against defenders involving non-State actors, including corporations. One of her report’s noteworthy recommendations called for companies to develop national human rights policies in cooperation with defenders, including monitoring and accountability mechanisms in case of violations of the rights of human rights defenders.
There is clearly a great need for the international business community, home governments of corporations and host countries to seek concrete ways to actively respect and protect environmental & human rights defenders. Two current processes provide important opportunities to do just that.
The first involves the mandate of the Special Representative of the UN Secretary-General on business and human rights (SRSG) Professor John Ruggie, which culminates June 2011 with the HRC’s expected endorsement of his new Guiding Principles to operationalise the UN-endorsed Protect, Respect, Remedy Framework.vi In a working papervii I submitted earlier this year to the SRSG’s online forum,viii I proposed that language regarding respect for both human rights defenders and at-risk environmental defenders should be added to the Guiding Principles final revision. Professor Ruggie did indeed insert a distinct new reference when he recommended (in his Commentary on human rights impacts and due diligence) that business enterprises consult with “credible, independent expert resources including human rights defenders..."ix That instruction was accompanied by his previously-published comment on State-based judicial mechanisms where he directed that “the legitimate and peaceful activities of human rights defenders [should not be] obstructed."x
Similarly, the new Human Rights Chapter in the 2010-11 updatexi of the Organisation for Economic Co-operation and Development's (OECD) Guidelines for Multinational Enterprises (MNEs)xii should include "human rights defenders" in its Commentary listing vulnerable groups needing particular attention, and it should also highlight respect for environmental defenders whose work makes them even more susceptible to violations of their basic personal rights, such as freedom of association, assembly and expression.
There have been efforts for many years to create a separate Human Rights Chapter in this multilateral soft-law instrument, and the SRSG's Discussion Paperxiii for the OECD Guidelines Update Roundtable moved those discussions forward by calling for specific references to his Protect, Respect, Remedy human rights & business framework. Organizations such as OECD Watch and Amnesty International have made comparable recommendations,xiv and have also pointed out that in many cases of corporate-related human rights abuses, human rights defenders are at particular risk.
The OECD Guidelines for MNEs can be sufficiently reformed to help prevent reprisals and retaliation against environmental and human rights defenders around the world through inclusion of wording about these at-risk campaigners in its new Human Rights Chapter.xv These defenders are often leaders of community groups which may be utilizing the OECD “Specific Instance” mechanism through National Contact Points,xvi as well as employing other democratic methods to achieve environmental and social justice.
The Center for International Environmental Law has noted that “The increased trend in violence against environmental defenders often results from the failure of States to properly manage the environmental impacts of resource extraction... Significantly, the problem of impunity is not limited to host countries. Rather, there is a corresponding failure on the part of companies’ home countries to enact (and enforce) effective legislation to prevent and punish human rights violations that result from their companies’ operations abroad.”xvii
Amnesty has also documented numerous cases where human rights defenders have been threatened, intimidated, ill-treated and charged with unfounded offences when they have campaigned against extractive developments on their land, or defended their right to be consulted before a government grants a concession for exploration or extraction of natural resources.xviii
The groundbreaking Center for Human Rights and the Environment report, The Human Cost of Defending the Planet,xix described the unfortunate global reality that exists today: “Environmental activists find themselves in a special situation of double vulnerability. This is due to the fact that the majority of the cases they defend confront not only State interests but also the interests of powerful economic groups in connivance with, and much more powerful than, the State, with their own armed forces and an enormous degree of impunity…”
As the OECD celebrates its golden 50th anniversary with the motto “Better Policies for Better Lives”, there is a unique opportunity to extend Professor Ruggie’s leadership and forge ahead on this imperative global human rights issue. Environmental defenders, whose efforts often intersect with both State and corporate activities, are at even greater risk of business-related human rights abuses, and enterprises have the responsibility to take into account the special situation of extreme vulnerability of these courageous advocates.
On the web page citing its five core values – Objective, Open, Bold, Pioneering, Ethical – the OECD states: "We dare to challenge conventional wisdom starting with our own."xx When the OECD Investment Committee chooses to include these proposed comments in its new Guidelines, environmental & human rights defenders will be benefited by such seemingly small but truly significant advances for years to come.
i Human Rights Defenders Information - OHCHR Factsheet
xii “The Guidelines are recommendations by governments covering all major areas of business ethics, including corporate steps to obey the law, observe internationally-recognised standards and respond to other societal expectations.” OECD Guidelines, June 2000 & Commentaries
xv The SRSG directs both States and business enterprises, in his Report’s 'Access To Remedy' final section on Effectiveness criteria for non-judicial grievance mechanisms, to recognize that “Barriers to access may include a lack of awareness of the mechanism, language, literacy, costs, physical location and fears of reprisal...” Ch. III, Par. 31.