Meaningful Provisions on the Rights of Indigenous Peoples and Communities Essential for any EU Legal Corporate Duty
This post was contributed to by:
- Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), Nepal
- Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT), Kenya
- Project on organising, Development, Education, and Research (PODER), Mexico/Latin America
- Federación por la Autodeterminación de los Pueblos Indígenas (FAPI), Paraguay
- Palenke Alto Cauca (PAC), Proceso de Comunidades Negras (PCN), Colombia
- Indigenous Peoples Partnership (IPP), Myanmar
- Promotion of Indigenous and Nature Together (POINT), Myanmar
- Asia Indigenous Peoples Pact (AIPP), Thailand
- Indigenous Peoples’ International Centre for Policy Research and Education (Tebtebba), Philippines
- International organisations: Forest Peoples Programme, Netherlands
- International Work Group for International Affairs (IWGIA), Denmark
Organisations call for an early inclusion of rightsholders in the legislative process, a law that ensures access to justice and the right to an effective remedy, as well as robust safeguards for human rights defenders and whistle-blowers.
Unsustainable and illegal practices among global investors and companies, including European businesses, are undeniably contributing to human rights abuses in countries producing commodities for international markets and consumers. Where communities speak out against harmful business operations and investments, they are often the targets of intimidation and repression. Indigenous peoples and local, rural and Afro-descendent communities not only face severe threats to their territories, livelihoods, cultural survival and self-determination, they are also threatened, de-legitimised, criminalised and killed at disproportionate rates for protecting their rights and defending their lands and environment. In many cases, the underlying causes of intimidation and violence are linked to the failure of businesses to respect community land and resource rights, including the right to free, prior and informed consent (FPIC), which in turn leads to land conflicts, forced evictions and physical and economic displacement.
Voluntary measures adopted by companies to promote responsible and sustainable production and sourcing, including the protection of communal tenure and resource rights, have failed rights-holders the world over. They have been ineffective in shifting businesses, in all sectors and of all sizes, towards meaningful respect of all human rights outlined in international human rights instruments. For decades, rights-holders and social organisations have been calling on governments to protect, respect, and advance their rights by regulating businesses through legal provisions. The Zero Tolerance Initiative (ZTi), a coalition of indigenous peoples, rural and Afro-descendent communities and organisations and their civil society partners, is working in solidarity to push for reforms of global trade, business and supply chains to eliminate violence, killings and abuse against human rights defenders linked to global supply chains. In its Geneva Declaration, the ZTi calls for governments to implement the UNGPs on Business and Human Rights through a corporate duty that meaningfully upholds human rights, including community land rights.
With the right provisions, an EU-wide corporate duty to protect human rights could be key to promoting the reform of corporate conduct to help end attacks, criminalisation, intimidation, threats and killings against defenders and communities, which in 2020 continued to increase worldwide, whilst simultaneously offering protection of the wider set of human rights. In order to do so, we believe that the legislation adopted must be broad in scope and at the same time offer specific provisions and mechanisms to ensure the protection of human rights, land and environmental defenders. Its provisions must regulate companies and their supply and value chains inside and outside of the EU. Legal provisions must also apply to investors and financial institutions across different commodities and sectors; and to instigate real corporate behaviour change, legislative measures must include civil and criminal penalties.
Effective EU legislation must include norms and requirements fully aligned with international human rights law and standards, including in relation to the customary land and territorial rights of indigenous peoples and communities. Provisions should require respect for the right to FPIC in line with the UN Declaration on the Rights of Indigenous Peoples and related human rights instruments. It also needs to contain robust safeguards and requirements for solid corporate actions to improve safety and protection for human rights defenders and whistleblowers who lodge complaints against a specific company or investor. Companies should be required by law to conduct independent human rights and environmental impact assessments (HREIAs). Clear guidance should be set out to ensure HREIAs are undertaken in a culturally appropriate manner determined by the rightsholders and require an analysis of the root causes of past and present impacts and unresolved community grievances. Requirements must also stipulate that relevant documents and information are shared in languages and via means that are understandable to communities. Businesses must be obliged to ensure that any plans or agreements made in relation to remediation for harmful human rights and environmental impacts are inclusive of the priorities and perspectives of affected rightsholders and subject to FPIC.
The undersigned organisations emphasise that in addition to identifying, mitigating and preventing risks to human rights, effective corporate due diligence requires actions to address and remediate adverse impacts in ways that are meaningful to affected rightsholders. Any new EU legal instrument regulating corporate conduct needs to ensure that it requires businesses to address past and present harms identified as associated with their existing operations and investments, and include requirements for remedial actions. It is vitally important that the instrument is backed up by a dedicated EU enforcement framework to ensure compliance. The legislation must also enable access to justice and the right to an effective remedy, including through redress mechanisms accessible to affected communities and rightsholders, with due attention paid to the particular challenges that arise from ensuring communities in remote areas are not left behind.
The EU proposals come at an important moment in history. Despite the ongoing COVID-19 pandemic, the expansion of the agribusiness and extractive industry and the increased land grabbing, repression, criminalisation and shrinking of civic space for human rights, land and environmental defenders have intensified the world over. Reports of death, suffering, food shortages and increasing insecurity serve as a wake-up call for policy makers and businesses to fulfil their roles and responsibilities and act to ensure compliance with the corporate duty to respect, protect and further human rights. Alongside mandatory legal rules on corporate conduct, there is a need to rethink public policies on global trade, production and consumption of commodities to enable a transition towards sustainable economies respectful of human rights and the environment. A return to business as usual is not an option.
In order for the EU legal framework on corporate conduct and mandatory human rights and environmental due diligence to be effective, it will be essential that European legislators and decision-makers hear the voices of indigenous peoples, local communities, human rights and environmental defenders and organisations that promote corporate justice. We recommend that the EU makes every effort to ensure the inclusion of indigenous peoples and local community voices in the process of developing this important legislation. Our organisations are willing to engage further in these policy discussions as the EU develops its laws and policies on corporate conduct and sustainable trade.
Perspectives from Business, Public Sector, Academia and Civil Society
This post is an excerpt from our collation of perspectives on Mandatory Due Diligence ahead of the German EU Council presidency. Click through below to read all of the contributions from around the globe.