Human rights defenders and corporate accountability– Is there a place for them in a treaty on business & human rights?

Carlos Lopez, International Commission of Jurists

This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

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The recent release of the zero draft of a treaty on transnational corporations and other business enterprises with regard to human rights is no doubt a significant landmark in the process towards achieving a final treaty. One of its visible impacts is that it is helping to shift the focus of the official UN discussions, hitherto largely aimed at procedural and political issues, onto the content and scope of the treaty.

The fundamental choices taken by the Chair in the draft to address remedies for the victims, prevention of business abuses, and making States the main duty bearer under the treaty are watershed steps that should be preserved and encouraged. Those choices are right not only because they render the treaty politically and operatively more feasible, but mainly because they make it more likely to be effective. The zero draft contains a promising outline of most of the most significant issues in the business and human rights equation. Yet, the draft is notable for its lack of precision and clarity, and its weakness in relation to international monitoring and adjudication. The need for stakeholders who take seriously the idea of the treaty to engage critically, realistically and robustly with the zero draft is a necessary step towards its tenability.

One of the absences in the zero draft that should be pointed out in a critical assessment relates to the protection of human rights defenders that work in the area of corporate accountability. A place for those who devote their lives to defend the rights of others, especially of marginalised and vulnerable local communities and indigenous people, deserves consideration. Human rights and environmental defenders are increasingly at risk or actually face growing intimidation and attacks. For 2017 alone, the organization Global Witness reported that “at least 207 land and environmental defenders were killed” trying to protect their homes and communities from mining, agribusiness and other destructive industries, although “severe limits on the data available mean the global total is probably much higher.” This number of course is only in the field of land and environment, excluding other attacks, such as death threats, arrests, intimidation, cyber-attacks, sexual assault and lawsuits, which probably sum up to the thousands,.

It is well known that the impetus and support for the current process towards a treaty on business and human rights comes largely from a broad alliance of civil society organizations, mostly human rights, labour rights and environmental defenders. Their constant presence and action, in the hundreds, for every session in Geneva and in each country, has arguably helped to shield the process against constant attack from opponents.

But the main reason why a place for human rights defenders should be considered is because as part of the broader civil society groups, defenders stand to be indispensable to a treaty’s successful implementation. Without them, human rights treaties would be left entirely to the whim of State bureaucracies whose main objective and interest is not always the protection of human rights. Without action by human rights groups to subject them to scrutiny and hold them accountable, authorities may have little incentive to move towards meaningful action. The treaty’s drafters thus have a dual interest in making a place for human rights and environmental defenders to ensure its success but also to guarantee its own effectiveness in implementation.

Regrettably, the zero draft makes limited space for human rights defenders, marking in that way no difference with preceding human rights instruments. Some provisions in Article 8 get somewhat closer but fall far short of what is needed. For instance, article 6.11 provides for States to protect “victims, their representatives, families and witnesses” from “unlawful interference”, “intimidation” and “retaliation” in the context of court proceedings. Article 6.12 calls for human rights guarantees to the same groups.

In the first place, the provisions do not seem to cover the category of defenders who are not necessarily “victims” “representatives”, “families” or “witnesses”. Defenders do not necessarily operate only during court proceedings (before, during or after). Many of them simply investigate, organise, raise awareness, with the purposes of empowering the interested communities without substituting themselves to community leaders or acting as their representatives.

Similar gaps can be observed in the Draft Optional Protocol to the zero draft. The work of the National Implementation Mechanism proposed in the Draft Protocol does not provide expressly for participation by civil society. It could have, at the very least, borrowed language from the Disabilities Convention:

“Article 33.3

Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.”

The global rising threat against human rights and environmental defenders calls for appropriate response. It seems only logical that a treaty on business and human rights whose very existence and conditions for success rests heavily on the work of those defenders contain provisions that aim to enable and protect them.

One source of inspiration for an appropriate provision could be the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, adopted in Escazú, Costa Rica, on 4 March 2018, and soon to be opened to ratification. Its Article 9 provides for strong protection of human rights defenders in environmental matters, as follows:

“1. Each Party shall guarantee a safe and enabling environment for persons, groups and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction and insecurity.

2. Each Party shall take adequate and effective measures to recognize, protect and promote all the rights of human rights defenders in environmental matters, including their right to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement, as well as their ability to exercise their access rights, taking into account its international obligations in the field of human rights, its constitutional principles and the basic concepts of its legal system.

3. Each Party shall also take appropriate, effective and timely measures to prevent, investigate and punish attacks, threats or intimidations that human rights defenders in environmental matters may suffer while exercising the rights set out in the present Agreement.”

The Escazú Agreement is the only treaty so far that contains a dedicated provision for human rights defenders. It would be logical for States from Latin American and Caribbean region to propose a similar provision given the strong connections between the matters under regulation, but it would also be an ethical imperative for those States who are the usual stated defenders of human rights defenders to be explicit. It would be an inexcusable omission if they fail to do so.