A lot more on the protection of Defenders of economic social and cultural rights

March 16, 2016

On 7 March 2016 the ISHR held a joint side event on the protection needs of human rights defenders working on economic, cultural and social (ESC) rights [http://wp.me/pQKto-1ZJ]. Here a report and some more:

Panellists spoke about the crucial work of ESC rights defenders in their countries, including defenders in Ethiopia protesting illegal land grabs to prevent the displacement of communities; defenders in Malaysia working towards inclusive and sustainable development and to oppose corruption; and defenders in Guatemala working to protect indigenous rights and ensuring that companies consult with affected communities.

Panellists highlighted the significant risks these defenders face. The murder of human rights defender Berta Caceres, shot in her home on 3 March, was referred to as a horrific but clear example of the risks faced. They are at particular risks as a result of their work to expose corruption and challenge major business, as well as particular risks faced by women defenders of ESC rights – including stigmatisation, sexual abuse and attacks on their families. Restrictive laws which violate international human rights law were also highlighted – as they are often used to accuse defenders of acting ‘illegally’. Collusion between States and business actors was emphasised as a factor which exacerbates the risks ESC rights defenders face, including by enabling restrictions to be imposed on protests, and by facilitating judicial harassment. Finally, high levels of impunity for attacks against ESC rights defenders was identified as one of the biggest threats and impediments to their work.

In discussing seven good practice principles to protect defenders set out in his new report presented to the Council last week, Michel Forst highlighted the need to work together; including the need for different Special Procedures to collaborate to report more comprehensively on risks and threats faced by defenders. [see: https://thoolen.wordpress.com/2016/03/07/un-rapporteur-michel-forst-documents-good-practices-in-the-protection-of-human-rights-defenders/

Allo Awol built on this idea of collaboration, stating that aid donors and international financial institutions should insist on the protection ESC rights defenders. Collaboration was a central theme to the good practices in the defence of ESC rights defenders that were discussed – including the need for meaningful consultation by both governments and corporations with ESC rights defenders; and strong networks between ESC rights defenders.

Navi Pillay highlighted that good practice for the protection of defenders requires investigation of and accountability for threats and attacks against them. In reflecting on what is required to ensure these defenders are protected, she stated: ‘Civil society and States need to work together towards the implementation of specific national laws and mechanisms for the protection of these defenders, to investigate violations against them, and to create accountability for those violations.’

In the discussion on good practices, Michel Forst identified the resolution being negotiated during the current Human Rights Council session as a critical opportunity. ‘States have the opportunity at this session of the Council to adopt a strong resolution on the promotion and protection of ESC rights defenders.’

On 14 March 2016 ISHR published Navi Pillay’s statement “Realising ESC rights requires participation and protection of ESC rights defenders. For the full text follow the link below. She said inter alia:

The recent death of Honduran human rights and environmental activist Berta Cáceres is a tragic reminder of the dangers faced by so many of those who dedicate their lives to promoting and protecting the human rights of others….

..As a South African, I have seen and experienced first-hand the role of ESC rights defenders in combating poverty and injustice and in promoting universal human rights for all, even the most powerless and disadvantaged. I have seen how the work of those who defend ESC rights benefits entire communities; just as attacks against those who defend ESC rights harm entire communities. Coming from South Africa and having worked as High Commissioner, I have also seen and experienced first-hand the influence of international law, international mechanisms, and international solidarity in contributing to the promotion and protection of human rights and their defenders at the national level.

That is why it is so important and timely that the UN Human Rights Council is currently negotiating a resolution on the protection of ESC rights defenders. …In its operative provisions, the resolution should call on States to provide a safe and enabling environment and legal framework for defenders’ work. This should include a call on States to review and amend laws that criminalise or unreasonably restrict defenders’ work, ensuring that national laws which govern the work of defenders are themselves compatible with international human rights standards, including the Declaration. The resolution could also condemn the tendency of some States to adopt restrictive national laws that flagrantly breach international standards and then have the audacity to accuse defenders who don’t comply with restrictive provisions, of acting illegally.

… It could also encourage States to ensure that ESC rights themselves are justiciable and enforceable, as is the case in South Africa, and that freedom of information laws provide for a right of access to information pertaining to human rights held by non-State actors such as business enterprises, as is the case in Sierra Leone. With the increasing privatisation of public and social services, together with the fact that business often holds exclusive information (such as to the environmental impacts of major projects), it is imperative to the promotion and protection of ESC rights that ESC rights defenders have access to privately held information.

In addition to promoting general human rights protections, the resolution could also encourage States, in consultation with civil society, to develop and implement specific national laws and mechanisms to protect defenders, such as in Mexico and Cote d’Ivoire, and to investigate and ensure accountability for threats and attacks against them. The killing of brave defenders such as Berta Cáceres should be subject to prompt, thorough and impartial investigations, with impunity being both a cause and a consequence of the dangerous environment within which so many ESC rights defenders operate.

While States have the primary responsibility to ensure a safe and enabling environment for ESC rights defenders, business enterprises also have an important and influential role to play. The resolution could move in this direction by calling on business to engage and consult with ESC rights defenders, to refrain from any interference with their work (even where it targets the business operation itself), and to ensure that they are not complicit in attacks or restrictions through their supply chains or investments. Dutch, Finnish, German and other international investors in the major hydropower project against which Berta Cáceres protested have a role and responsibility to push for accountability for her death and better protection for those brave ESC rights defenders who continue to champion her cause.

Similarly, on 10 March 2016 the ISHR published the article “Unpacking the legal obligation to respect, protect and facilitate the work of ESC rights defenders” by Ben Saul, Professor of International Law at the University of Sydney

He also starts by mentioning the case of Berta Cáceres , who in 2015 was awarded the Goldman Environmental Prize for her courageous campaigning – in the face of death threats – against hydropower dams in Honduras and was murdered a year later, despite her international profile and the protections ordered by the Inter-American Commission on Human Rights. For the full article see the link below; here some main excerpts:

An escalating global war is being waged on defenders of economic, social and cultural rights (‘ESCRs’). In too many countries, unrestrained violence accompanies development, whether dams, mining, logging, or agribusiness. The NGO Global Witness reported 116 killings of land and environment defenders in 17 countries in 2014, 40% of whom were indigenous. Impunity commonly prevails, even if the perpetrators are known…… 

Attacks on human rights defenders are attacks on the international community. They strike not only at the values of the United Nations and the post-war moral order, but also at the international laws adopted to enshrine and safeguard fundamental rights.

As a creature of its time, the International Covenant on Economic, Social and Cultural Rights of 1966 (‘ICESCR’) does not directly refer to what we today call ‘human rights defenders’. Yet, the states that drafted the ICESCR were well aware of the need to protect those who defend ESCRs. …

In contemporary international law, it is well accepted that the ICESCR imposes duties on states to ‘respect’, ‘protect’ and ‘fulfil’ its rights…. National action should also extend to providing information about activities that adversely affect ESCRs; opportunities for public consultation and participation in development decisions; and rights-compliant regulation of corporations involved in development or service privatisation.

The duty to promote rights may be pursued through measures to educate and raise awareness about the protected role of rights defenders, including amongst public officials, law enforcement, the judiciary, parliamentarians, the media, and private actors. This should include measures to combat racism and stigmatisation of indigenous activists whose ESCRs are at risk, and a recognition of the specific vulnerabilities faced by women defenders. In authoritatively interpreting ICESCR rights, CESCR has repeatedly affirmed the above duties. It has emphasised that states parties ‘should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society’, to assist vulnerable or marginalised groups in realizing their ESCRs.

The overarching obligation to remedy rights violations additionally means that states must investigate, prosecute and punish those who attack defenders, and compensate the victims. In monitoring states, UN treaty bodies such as the CESCR, Human Rights Committee and Committee on the Elimination of Racial Discrimination have repeatedly urged states to remedy violations against defenders of ESCRs, and to strengthen protection and accountability.

Ultimately, measures to protect rights defenders will only have cosmetic effects until the structural causes of attacks are adequately addressed. In too many countries, the political economy of development drives the violence that underpins colossal land-grabbing, inequitable and unsustainable exploitation of natural resources, the destruction of traditional livelihoods and indigenous ways of life, and the impoverishment of many who are already marginalized. These are not merely local struggles for justice, but concern the whole international community. Foreign states, donors, and global civil society are entitled to protect defenders where local governments fail to live up to their responsibilities – for instance, through visits and monitoring, funding, reporting, diplomatic protest, and relocation and asylum. These are not unfriendly acts of interference in domestic affairs, but necessary and legal measures to protect human dignity.

Sources:

http://www.ishr.ch/news/panel-discussion-protection-needs-defenders-working-economic-social-and-cultural-rights

Realising ESC rights requires participation and protection of ESC rights defenders | ISHR

http://www.ishr.ch/news/unpacking-legal-obligation-respect-protect-and-facilitate-work-esc-rights-defenders

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