On 4 February 2021 the Business and Human Rights Resource Centre published an opinion piece by Mary Lawlor, the UN Special Rapporteur on Human rights Defenders:
Human rights defenders (HRDs) all over the world face continuous harassment, threats and intimidation, with some even getting killed in response to their work protecting and defending human rights. Since the start of the COVID-19 pandemic, attacks against HRDs have continued with many facing greater risks as some governments misuse the situation to further curtail civil rights, deny participation in public decision-making, and deploy state forces to repress legitimate, peaceful protests and obstruct access to justice.
Many of these attacks are related to business activities. In 2019, the United Nations High Commissioner for Human Rights (OHCHR) documented the killing of 357 HRDs, half of whom worked on land rights, protection of the environment, minority rights and indigenous people rights. These violations are often carried out in the context of extractive industries, energy production, agro-industrial development and other business activities. When human rights are under threat from business activities, HRDs stand up and put themselves at risk to protect these rights and their communities. For an overview of all such HRDs, see: https://www.trueheroesfilms.org/thedigest
A landmark example is that of HRD Mungunkhun Dulmaa in Mongolia. In 2017, the Mongolian Government entered into a mining agreement with Steppe Gold, a Canadian gold mining company. The local community complained about the environmental impact of the agreement, the associated gold mine, and allocation of land to step-mines – lands which had been used by the community for generations. In 2018, members of the affected community staged a protest and were attacked by private security guards, hired by the company. When Ms. Dulmaa tried to video-record the assault as evidence she was detained, beaten and sexually harassed, and the video was deleted from her phone. A year later, when she attempted to report the incident to local police, Ms. Dulmaa received death threats via text, warning her to stop her work. Here, the lack of engagement by companies with potentially affected communities is blatant. In 2020, my predecessor and the UN Working Group on business and human rights sent a communication regarding Ms. Dulmaa’s case to both the Mongolian Government and the company, but neither responded. This signals a real lack of accountability. If we really want to ‘build back better’ and achieve a just recovery, human rights and HRDs need to become a priority for both states and business.
Five steps companies should take to address risks to HRDs in the context of just recovery:
- Implement the UN Guiding Principles on Business and Human Rights (UNGPs) through adequate engagement with rightsholders. A recent report from Trinity College, Dublin on 50 large companies and 10 states showed that companies either don’t know or don’t care about the UNGPs. A key part of the implementation of UNGPs is engagement with potentially affected rightsholders and their representatives, including independent trade unions and other civil society organisations. So far, this is not happening: for example, in the Know the Chain benchmark, all companies scored zero on their efforts to support freedom of association. This must change if we want to ‘build back better’: from the earliest possible stage of each project and throughout their supply chains, companies need to engage with potentially affected communities, workers and HRDs representing and supporting them. This needs to include critical voices and companies must give due consideration to the possible objections of HRDs, even if these may render their work and projects more costly, less profitable or even less viable.
- Free, prior and informed consent (FPIC) from affected communities, especially indigenous ones, is non-negotiable. It is an essential part of the effective due diligence called for in the UNGPs and a platform to prevent conflict. HRDs, typically leaders in their communities, can help business develop the kind of precise, contextualised understanding of local situations they need if they intend to prevent and address the potential threats to human rights arising from their activities. In assessing risk, both companies and investors, and the social auditors they hire to help them do so, should give adequate weight to independent civil society and community-level information and evidence. This is fundamental when considering actions for just recovery.
- This engagement with HRDs and rightsholders must continue for the duration of any business project, because opinions can change over time. Therefore, companies need to constantly keep their door open to HRDs and their input.
- Companies should create public HRDs policies and processes. Business needs to commit to the recognition of communities, HRDs and trade unions as partners by systematically including them in human rights policies and due diligence. They need to commit to a zero-tolerance approach to violence in their supply chains, and enforceable agreements with unions, and consistently prevent, monitor and address risks HRDs face in them.
- Companies should also stand with HRDs when they are attacked and release public statements denouncing threats and attacks. Such steps should be taken in consultation with HRDs themselves to increase effective actions that prevent harm and most importantly build trust with HRDs and local communities.
It must be acknowledged some private businesses are already taking positive steps when it comes to protecting HRDs, but most of them do not. This is extremely disappointing and indicates a very strong need for mandatory human rights and environmental due diligence (HREDD). As the UN Special Rapporteur on the situation of HRDs, I strongly support the growing momentum worldwide for mandatory HREDD, and advocate for an early inclusion of rightsholders and HRDs in the legislative process. These laws need to ensure access to justice and the right to an effective remedy, include a business duty to conduct effective, meaningful and informed consultations, and introduce robust safeguards for HRDs and whistle-blowers. An uncritical return to business-as-usual in the post-pandemic period would only perpetuate the deep inequalities between companies, workers and local communities, whereas we have a precious opportunity to reimagine and rebuild an economy that serves and respects the rights of all its participants.
Hans Thoolen on Human Rights Defenders and their awards 