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agosto 14, 2012 0

Government must Protect; Companies should Respect

By Paloma Muñoz Quick, Advisor, Danish Institute for Human Rights.

 

When done sustainably, foreign investment and business can be a driving force for equality and prosperity. Done poorly, however, business can derail development, entrench discrimination, degrade natural resources and exploit vulnerable groups. The latter outcome is increasingly evident in Latin America, where economic development in many countries comes at a high human cost, with private sector activities negatively impacting the full spectrum of human rights of individuals and communities, resulting in widespread protests and violence. For indigenous communities, especially, these challenges have been existential: the number of indigenous peoples on the brink of extinction due to the expansion of business activities into their territories is alarming and shows no sign of slowing down.

Increasingly, some businesses worldwide are also contributing to fatal violence, as recently noted by the international NGO Global Witness, which reported that 711 people have been killed in the past ten years globally while defending land and forest rights from business operations. In 2011, an alarming 106 killings were reported, while the number has almost doubled over the past three years. Furthermore, there is a worrying lack of information on such killings in many countries, and no international monitoring exists, suggesting that these numbers are likely to be a serious underestimation of the extent of the problem.

Human rights defenders have been killed in attacks and clashes resulting from protests, investigating or recording grievances against mining activities, logging operations, agri-business, tree plantations, hydropower dams, urban development and poaching.

Three of the four countries with the highest rates of business-related violence are in Latin America: Brazil, Colombia and Peru. In 2011, the Special Rapporteur on Human Rights Defenders noted “Defenders working on land and environmental issues in connection with extractive industries and construction and development projects in the Americas… face the highest risk of death as result of their human rights activities.”

The main causes for the killings in Latin America include: land ownership that is concentrated in the hands of a few people who have strong business and government connections; major foreign or local projects, including mining, hydropower and agribusiness which are developed on contested land and forested areas; large populations of poor citizens who depend on land or forests for their livelihoods; and social movements and strong rights awareness in these countries resulting in a greater likelihood of murders being reported. Compounding this problem in the region is the widespread impunity for business-related killings.

From a governance point of view, the question is: what should decision-makers in the region do about this troubling trend? Beyond addressing the issue of impunity, governments must seek to prevent abuses before these occur, including by tackling the root causes for the grievances advocated by human rights defenders across the region.

 

From Protect to Respect

In practice, international law has yet to formally address the role of the private sector vis-à-vis human rights, which has contributed to a regulatory void where especially transnational companies can operate with almost complete impunity in countries with weak institutions and legal frameworks.

In recent years, however, the international community has been developing ways to address this problem, and, increasingly, businesses are considered responsible for their direct impact on human rights wherever they may operate, as well as for the impact of their suppliers and partners around the world.

This positive development is best illustrated by the Guiding Principles on Business and Human Rights: Implementing the United Nations’ Protect, Respect and Remedy’ Framework, developed by United Nations (UN) SRSG John Ruggie and unanimously adopted by the UN Human Rights Council in 2011, making the Guiding Principles (GPs) the authoritative framework for human rights and business matters. This “do-no-harm”-framework provides the conceptual foundations for the division of roles and responsibilities of various actors in relation to private sector impacts on human rights. It rests on three pillars: States’ duty to protect against human rights abuses by third parties, including companies; the corporate responsibility to respect human rights, whereby companies must act with due diligence to avoid infringing rights as well as to address the adverse impacts in which they may be involved; and victims’ access to remedy.

The GPs were formulated through extensive consultations with stakeholders at the global level, including governments, companies, and civil society. They are not a new set of international laws, although international law underlies many of the GPs. They are also not intended as a cookie-cutter toolkit to be applied irrespective of context. Rather, they elaborate on the implications of existing standards, find the gaps in the current regime, and recommend how these should be improved. And although the GPs are universally applicable, they acknowledge that we live in a world with some 80,000 transnational corporations, and 10 times as many subsidiaries, most of which are small and medium size companies.

The GPs and their underlying Framework have had far reaching resonance. Before 2008, when the three pillar-framework was first developed, the term “human rights due diligence” was virtually unknown.  Since then, the term has been incorporated into international and domestic policy and regulation, including in the OECD Guidelines for Multinational Enterprises, the ISO 26000 on socially responsible business, the IFC performance standards on environmental and social sustainabilitythe EU strategy on corporate social responsibility and the U.S. Dodd-Frank Act in relation to mineral extraction from the Democratic Republic of Congo.

Furthermore, many transnational companies have adopted human rights due diligence measures of their own, not least because due diligence provides protection against lawsuits and other liability issues. A recent study found that 65% of mining companies are actively working towards compliance with the GPs, which means the impacts should hopefully be felt within what turns out to be one of the most controversial sectors in Latin America.

 

Principles in Practice

The challenge now is to move from principles to practice; a key component of which is the state’s role in protecting human rights from businesses in their jurisdiction. Doing this will help countries take the necessary steps to prevent private sector human rights abuses in Latin America and globally.

Accordingly, in November 2011, President Juan Manuel Santos of Colombia signed a joint declaration on human rights with UK Prime Minister, David Cameron. The two countries recognized the importance of working with the private sector on human rights issues and committed themselves to implementing the GPs. Such a commitment places Colombia at the forefront of the human rights and business discussion in Latin America.

The UK is now in the process of formulating a national human rights and business plan that will establish a framework for the government to align itself with the responsibility to protect, as stipulated in the GPs, and ensure relevant policy coherence throughout government. It is unclear yet what practical steps the Colombian Government is taking to comply with the requirements in order to fulfill the commitment made in the joint declaration. What is even less clear is how long it will take the rest of the region to follow suit. Although Argentina was one of five core supporters of John Ruggie’s mandate, and several other countries from the region supported the resolution adopting the GPs in the Human Rights Council, no other Latin American country has formally stated its intent to translate the GPs into domestic policy and legislation.

This shouldn’t come as a surprise: the process of widespread dissemination of the GPs has only just begun and change will inevitably be slow. What is more, there are no guarantees that the GPs are the right answer to the worsening violence stemming from corporate abuses. But the GPs do represent the international community’s best effort yet to address the human rights impacts of companies and, therefore, should be embraced as an invaluable tool by all relevant stakeholders.

For human rights defenders, the GPs provide an advocacy tool to hold their government accountable; for companies, the GPs specify clear due diligence measures to help ensure their operations respect human rights; and for states they provide a roadmap to governing that helps ensure that private sector operations respect human rights and contribute to sustainable development. With Latin America’s at times violent consequences of resource-based development, governments should embrace this roadmap without delay.

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