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Opinion

19 Mar 2024

Author:
Lady Nancy Zuluaga Jaramillo, Business & Human Rights Resource Centre

Latin America and the Caribbean: New standards on the horizon to protect human rights defenders fighting harmful business practices

From fighting deforestation and illegal mining in the Amazon to raising concerns about the impacts of megaprojects and the climate crisis, Indigenous peoples, community leaders, environmental defenders, peasants and workers play a pivotal role in protecting their rights, territories, natural resources and the environment across Latin America and the Caribbean. All this while experiencing a frequently hostile environment, where they often cannot speak freely and where challenging corporate power might prove extremely dangerous or even deadly. Despite these hazardous circumstances for human rights defenders (HRDs) to carry out their work, the Inter-American Human Rights system is demonstrating real leadership in key areas of law and policy to protect them.  This is something the rest of the world, including other regional blocks and corporate actors operating around the globe, should take notice of.

The Business & Human Rights Resource Centre (the Resource Centre), along with the Center for Justice and International Law (CEJIL), recently participated in a public hearing on “Business impacts on human rights in Latin America” before the Inter-American Commission on Human Rights (IACHR), given the increasingly important role the Commission and related bodies play in disseminating information on human rights impacts related to irresponsible business practices, and in strengthening accountability for harms. The Resource Centre and CEJIL urged the IACHR to develop standards on the protection of HRDs in respect of judicial harassment, particularly on the use of Strategic Lawsuits against Public Participation (SLAPPs) by business actors and the duty of States to sanction companies for abusing the judicial system to intimidate and silence HRDs. In particular, we called for the Commission to consider existing Anti-SLAPP laws that have been put in place in other parts of the globe, to build regional standards. Indeed, regional standards would help establish a level playing field for the protection of HRDs and ensure consistency of States’ duties and for companies’ operations across multiple national jurisdictions in Latin America and the Caribbean.

This intervention was based on the harsh reality that Latin America and the Caribbean is one of the most dangerous regions in the world for HRDs raising awareness about harmful business operations. Our September 2023 report revealed that 1,976 attacks have taken place in the region, including killings, judicial harassment, death threats, disappearances and other forms of intimidation. According to this report, 86% of the attacks were in Honduras, Mexico, Brazil, Colombia, Peru and Guatemala. The most dangerous sectors for HRDs in the region are mining, agribusiness, renewable energy, logging and lumber, and oil, gas and coal. Given the anticipated scale of mineral extraction required to aid the energy transition, and the necessary roll-out of wind and solar energy installations, there is critical need for governments across Latin America and the Caribbean to adopt legislation recognising the vital role of HRDs and their right to defend rights – even in the face of the urgent, global transition to renewable energy. They must also strengthen or implement protection mechanisms for HRDs and public human rights policies for mining operations which comply with Inter-American and UN human rights standards. The documented scale of lethal and non-lethal attacks on HRDs reveals the failure of governments in Latin America and the Caribbean to fulfil their duty to protect human rights and the insufficiency of voluntary corporate action to respect human rights.

The Inter-American Human Rights system is particularly fertile ground for action on these topics. For instance, the Third Report on Human Rights Defenders in the Americas by the IACHR is an important opportunity to reveal the challenges faced by HRDs and clarify the role of states and business actors in protecting them. The upcoming Advisory Opinion on Climate Change by the Inter-American Court of Human Rights also presents a critical occasion for the Court to develop standards for states to safeguard HRDs in the context of harmful business operations connected to the climate crisis, and to recognise core expectations under international law for business actors to protect HRDs. See the Resource Centre’s public comments on the opinion here.

Likewise, the implementation of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (the Escazú Agreement), which entered into force in April 2021, has the potential to be another key tool to improve the protection of HRDs in Latin America and the Caribbean. This treaty strengthens the link between human rights and protection of the environment by specifying obligations, including for states to ensure a safe and enabling environment for HRDs, to adopt adequate and effective measures to recognise, protect and promote their rights and investigate and punish any attacks against HRDs. The planned legally binding instrument to regulate the activities of transnational corporations and other business enterprises could also play a significant role in protecting HRDs and strengthening access to remedies in the region. The latest draft of this instrument, released in 2023, emphasises that HRDs have a significant and legitimate role in promoting the respect of human rights by business enterprises and that states have the obligation to take “all appropriate measures to ensure an enabling and safe environment for the exercise of such role.”

In Latin America and the Caribbean, corporate accountability will be significantly strengthened by involvement of institutional actors and the enforcement of treaties and evolving human rights standards – these could likewise be guiding lights for the rest of the world. In the interim and in addition, business has a crucial role to play in better voluntary practice: publicly acknowledging that HRDs are essential allies in helping businesses adhere to their responsibilities under the UN Guiding Principles on Business and Human Rights, adopting and implementing policy commitments recognising the valuable role of HRDs and the risks they face, and committing to zero tolerance for reprisals. It is essential that business also ensure effective consultation and robust engagement with HRDs at all stages of the human rights due diligence process. This idea is gaining traction globally, including in discussions around the EU Corporate Sustainability Due Diligence Directive where some businesses have shown leadership and publicly supported the inclusion of Indigenous Peoples' rights, HRDs and meaningful stakeholder engagement.