Protecting and respecting those who speak up against business impacts on human rights – takeaways from the UN Forum and the way forward
The rash of increased attacks on human rights defenders (HRDs) who speak up against business-related impacts on people and the environment was a key issue on the agenda of the 2017 UN Forum on Business and Human Rights (27-29 November 2017). In particular, it was the focus of a session that we co-organized with a number of NGOs on 28 November (video recording available here – and see the takeaways by the Business and Human Rights Resource Centre here). It was also the focus of a consultation that we convened the day after the Forum on 30 November to help inform our ongoing work to develop guidance for states and business on protecting and respecting HRDs in line with the UN Guiding Principles on Business and Human Rights (UNGPs).
The work of defenders in the field of business and human rights is critical. HRDs help to identify human rights risks and impacts arising from business activity and are crucial actors in the mitigation and remediation of abuses. Throughout the Forum and our consultation, we heard the stories of brave individuals who have been speaking up to defend the rights of workers and communities. People like Andy Hall, Kalpona Akter, Maryam al-Khawaja, James Otto, Joana Nebuco, Rosa María Mateus, and many others, have borne witness to how global supply chains and development are only sustainable when human rights are respected, and legitimate concerns of negative impacts can be raised without fear. In the words of Michel Forst, UN Special Rapporteur on the issue of HRDs, HRDs are not against development; they are only against “fake development”. We are pleased to be working closely with Forst, to address threats to HRDs who speak up about business-related human rights issues.
We also heard about positive actions taken by companies both in the public sphere and behind the scenes, as well as increasing recognition of the importance of the issue among business leaders. Government innovations such as Canada’s Voices at Risk policy highlight how home states of multinational enterprises can support HRDs internationally. In addition to the discussions with a specific focus on HRDs, the programme also featured other discussions on the private sector standing up for human rights, for example in relation to countering xenophobia and discrimination of LGBTI people (video recordings are available here).
A major goal of the 30 November consultation was to brainstorm with diverse experts on how to scale up initiatives to protect and respect HRDs. It sought, in particular, to examine how current models to support protection and respect of human rights defenders when there is a connection to business are working; how to address key challenges; and how to amplify existing efforts. A detailed summary report will be made available here.
Among the challenges highlighted by participating HRDs and civil society representatives, key themes were:
- Issues related to framing: In general, there is a need to unpack the terms of HRDs and civic space, and use vocabulary and concrete examples that are understood by business in the local and sector context. Typically companies do not understand the role of HRDs, or their intentions. In many contexts they are perceived or labeled as being anti-development, profit-seekers or foreign agents, for example, rather than representatives of victims of human rights abuses.
- The need to address root causes of attacks against HRDs, as gaps in rule of law are perhaps the biggest challenge for making comprehensive progress in terms of ensuring the respect for the rights of HRDs. Key issues include corruption, criminalization of dissent (i.e. arresting and prosecuting defenders for exercising right to protest or seek legal redress), lack of consultation processes, impunity and dysfunctional judicial mechanisms, and impunity for perpetrators of serious human rights violations.
- The worrying trend of strategic lawsuits against public participation (SLAPP) to sue HRDs: This tactic to silence HRDs, civil society organizations (CSOs), journalists and academics that raise complaints against companies are now becoming more prevalent and also impacting a larger number of HRDs and civil society organizations. SLAPPs place heavy financial burdens on NGOs and have a chilling effect on HRDs and affected rights-holders.
- The related upsurge in retaliatory measures by government actors such as criminal prosecutions or the use of laws and new legislation to restrict the ability of HRDs and CSOs to raise concerns about adverse business impacts on people and the environment.
- The uneven playing field and inequality of arms in the legal field: Typically companies have access to the best lawyers, which puts HRDs at a particular disadvantage when they are being targeted by private actors or public agents.
Subsequent discussions examined the roles of key actors in addressing current challenges and scaling up efforts to defend HRDs, addressing both duties and responsibilities of state and business actors as well as leverage that third parties can exercise.
- States: States have the primary obligation to protect HRDs. Key points included the needs to put an end to use of SLAPPs and other legal mechanisms that restrict, threaten, intimidate or silence defenders; ensure policy coherence; include protection of HRDs in national action plans on business and human rights; provide better legal support to HRDs; support multi-stakeholder dialogue and peer learning platforms; and explore ways for embassies of home states of transnational corporations and investors to address the situation of HRDs.
- National human rights institutions (NHRIs): Independent NHRIs have a clear role to play in protecting and supporting HRDs, as they provide direct access to engaging the relevant state institutions. When a transnational corporation is linked to a situation involving attacks on a HRD, there is an opportunity to engage the “home NHRI”, but so far this is an untapped terrain.
- Companies: Both HRDs and CSOs recognized that more companies are taking positive steps to respect and defend HRDs and civic freedoms (for examples, see this portal). They stressed the need to build on the examples of positive business engagement.
- Consulting meaningfully with affected stakeholders and transparency are fundamental elements of good practice. More companies also need to put in place or participate in operational-level grievance mechanisms, and grievance mechanisms need to take the situation of HRDs into account. Beyond steps to respect and defend HRDs when there is a direct link to business operations, business can also address situations where laws are being introduced and used to restrict HRDs and civic space. On the flip side, company efforts to silence HRDs or push for legislation that restrict civil society space are contrary to the UNGPs. Companies should also understand that open civic space is beneficial to business and that step one is to avoid negative impacts.
- Multi-stakeholder initiatives (MSIs): MSIs can be useful platforms for collective action and for engaging states, and several MSIs are equipped to address situations of HRDs or civic freedoms being targeted. However, so far they have not reached their potential, and ultimately the credibility of MSIs is at stake in this context.
- Business networks and business leaders’ initiatives: It is encouraging that more industry associations and business leaders’ initiatives (such as the B Team – see e.g. this blog) are recognizing that business has an inherent interest in defending HRDs and civic freedoms. Business practitioners networks (such as the business network convened by the Business & Human Rights Resource Centre and the International Service for Human Rights) help explore the practical actions companies can take. This applies to both situations of standing up for individual HRDs and how as a collective group they can exert their leverage with suppliers and governments to meet their duty to protect. More business actors need to be exposed to the issue, and there is a trust-building and educational process that needs to happen in order to build the issue into business ’DNA’.
- Similar reflections relating to the responsibilities and potential leverage of law firms and investors were also addressed.
An overall key message is that there is a pressing need to change the narrative relating to HRDs who work on business and human rights issues. Rather than seeing them as obstacles, or as threats, work needs to be done to see them as key partners, who can assist business in identifying key human rights impacts early on. As the UNGPs indicate, HRDs should be part of a company’s stakeholder engagement, and due diligence processes.
We will continue to explore how our Working Group can support initiatives and forging of partnerships to scale up protection of HRDs speaking up against business impacts. In particular, in 2018, we will be publishing guidance to help clarify the dos and don’ts for States and business in relation to protecting and respecting HRDs in line with the UNGPs. Currently we are seeking written feedback on a number of questions which will inform elements of such guidance under each of the three pillars of the UNGPs. The initial deadline was 20 January, but we welcome ongoing feedback and stakeholder engagement on this issue.
(For any questions about the Working Group’s work in this area, please contact [email protected].)