The vital role of human rights defenders in promoting corporate respect for human rights and in exposing and seeking accountability for business related human rights violations, together with the risks they face because of this work, should be central both to the implementation of the UN Guiding Principles and the elaboration of any treaty on business and human rights, according to ISHR.

(Geneva) - Human rights defenders working on corporate accountability play a critical role in preventing, mitigating, exposing and seeking accountability for business-related human rights violations.

The Guiding Principles on Business and Human Rights, adopted by consensus by the Human Rights Council, enshrine that businesses should engage in meaningful consultations with ‘potentially affected groups and other relevant stakeholders’ to identify the human rights impacts of their work.

Human rights defenders are both directly affected by, and key stakeholders regarding, the human rights impacts of business; coming from, living in, representing, and supporting affected communities. Constructive engagement and consultation with human rights defenders is therefore a business obligation arising under the Guiding Principles. Additionally, as leading commercial law firm Allens has written, there is a strong business case for companies to engage proactively and positively with defenders. Human rights defenders should also play a critical role as both stakeholders and beneficiaries in the development of National Action Plans on Business and Human Rights.

Regrettably, despite both the obligation and imperative of business to respect and engage with human rights defenders, defenders in all regions of the world face harassment, threats and attacks by consequence of their work to promote corporate respect for human rights and accountability for violations. This is very powerfully shown in this special edition of ISHR’s Human Rights Monitor, including by defenders themselves such as Rafaela Nicola from Brazil, Emmanuel Umpula Nkumba from the Democratic Republic of Congo, and Sukhgerel Dugersuren from Mongolia. There are some notable efforts by the UN human rights system to respond to these concerns, such as those outlined by Michael Addo, the Chair of the Working Group on BHR, or recent moves by the treaty bodies including the Committee on the Rights of the Child. However, as Michel Forst, the Special Rapporteur on human rights defenders, explains, while the international response is evolving, it nevertheless remains inadequate.

It is therefore essential that all relevant mechanisms and processes reaffirm and reinforce the central role that human rights defenders play in this area, and through that contribute to enhancing the protection they need to play this role effectively. As the world's peak multlateral body on human rights, the UN Human Rights Council can and should be the focus of much of this work.

There is therefore a clear need for a major emphasis on the role of human rights defenders in both of the two primary ‘policy strands’ that are being developed within the Council, namely: the UN Working Group with its focus on implementation of the Guiding Principles; and the newly created ‘open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises’ (IGWG). While the two strands are often characterised as competing, the main sponsors of each initiative, Norway and Ecuador respectively, increasingly recognise the potential for complementarily of the two processes (which is to be welcomed, as pointed out elsewhere).

Most importantly, both Norway and Ecuador agree on the central role human rights defenders should play in the further development of the Guiding Principles and treaty initiatives. To live up to that central role, the following elements are critical:

Working Group and Guiding Principles: consistent inclusion of defenders’ protection in all activities

On the one hand, the Working Group - whose main task is to implement the Guiding Principles - has identified human rights defenders as a group of stakeholders that requires particular attention. This is not only by virtue of threats and challenges that they face as a result of seeking accountability for business related human rights violations, but also because of the increasing recognition of the positive role defenders play in preventing and mitigating violations in the first place.

While the early years of the Working Group’s work have been met with some criticism from civil society and human rights defenders for the lack of attention paid to individual cases of human rights violations and the protection needs of defenders, the picture seems to be improving. Recent visits of the Working Group - such as to Azerbaijan - have prioritised attention to human rights defenders’ issues and protection, which was not the case during earlier visits.

The increasing use of individual communications, mirroring the function of other thematic UN human rights expert mandates, along with the sending of joint communications with the Special Rapporteur on human rights defenders, is further testimony to this emerging focus of the Working Group’s work. It is critical that this be strengthened and further developed, including as it relates to the crucial issue of intimidation or reprisals against human rights defenders who cooperate with UN human rights mechanisms. Just as different kinds of threats and attacks on defenders pose a particular challenge to human rights defenders working on corporate accountability issues, the kinds of reprisals suffered for that work may require specific responses and protection, which the Working Group would be well placed to develop.

As shown in the seminal work of the International Corporate Accountability Roundtable (ICAR), National Action Plans are not only critical tools in the implementation of the Guiding Principles as a whole, but important tools for the protection of human rights defenders. Accordingly, there needs to be increased emphasis and sharing of good practices to ensure full participation of human rights defenders in the development of NAPs. Moreover, all NAPs should include concrete and specific commitments and measures to ensure that human rights defenders working on issues of corporate accountability are supported and enabled to do so, free and protected from attacks and others forms of harassment or interference.

Intergovernmental working group towards a legally binding treaty: include focus on defenders’ protection

As a newly established process supported by many NGOs, the expectations on the IGWG by civil society and human rights defenders around the world are high. This is even more the case since it was advertised as a response to business related human rights violations, and as the long-awaited avenue for putting an end to the widespread impunity for such violations.

Focusing on the specific aspect of the role of human rights defenders in the process and outcome, the following indicators/benchmarks may serve to measure the success of the IGWG. The specific suggestions and concrete ways in strengthening this role may evolve over the period of creation of the IGWG and the negotiations, but to date should be:

Process:

• Full and effective participation of human rights defenders and affected communities: The resolution establishing the IGWG recognises the important and legitimate role of civil society actors, and requests the IGWG to collect written input from relevant stakeholders. It is therefore critical that human rights defenders are transparently informed about, and effectively consulted on, all aspects of the work of the IGWG. This should include, but is not limited to:
  
  • Conduct of the work, including appointment of the chair person;
  • Devising and feeding into the ‘independent expertise and expert advice’ the resolution requests the IGWG to benefit from; and
  • Input into the program of work and agenda of the IGWG.
• Openness to the participation of both ECOSOC and non-ECOSOC accredited organisations: As with many other international standard setting processes, such as the process for drafting the Convention on the Rights of Persons with Disabilities, the IGWG should benefit from the expertise and insight of all human rights defenders and civil society organisations wishing to participate, irrespective of their existing consultative relationships with ECOSOC/DPI.
• Adequate space, time and modalities for human rights defenders and civil society to participate: In conducting the work or the IGWG, civil society should be permitted to participate fully. The experience of the Human Rights Council’s institution-building process could be instructive in that regard.
• Protection for human rights defenders and civil society: Human rights defenders working on issues of corporate accountability are frequently victims of threats, intimidation and attacks as a result of their work, from both State and non-State actors. The United Nations and member States have both a moral and legal obligation to ensure that those who contribute to the work of the IGWG can do so safely, without hindrance or fear, and without negative consequences for themselves or their organisations. This should include, but is not limited to, protection from direct threats against human rights defenders, threats against their organisations, or threats by businesses or governments to suspend other ongoing cooperation or dialogues.

Outcome:

Any international treaty on the issue of business and human rights should, at a minimum:

1. Reaffirm the State obligation to protect and support human rights defenders who work on issues of corporate accountability, including from threats by State or non-State actors, and the State obligation to create a safe and enabling environment in which human rights defenders can operate free from hindrance or fear;
2. Reaffirm the obligation of the State to investigate and ensure accountability for any threats and attacks against human rights defenders and others in connection with their work on business and human rights;
3. Reaffirm the obligation of companies to engage with human rights defenders, particularly in the conduct of human rights impact assessments and the development of risk mitigation strategies and programs;
4. Clearly set out the obligations of business to refrain from interfering with the work of human rights defenders, as well as their responsibility to contribute to the creation of a safe and enabling environment for defenders; and
5. Provide for accessible, affordable and effective judicial and non-judicial remedies for any violations, threats and attacks against human rights defenders.

Conclusion: respect and protect the central role of human rights defenders

Human rights defenders are the catalysts of change. If the United Nations, States and businesses are serious about promoting and protecting human rights in the context of business operations in an effective and efficient manner, they must consult and protect them. Anything less would not only neglect a critical opportunity to advance human rights protection, but would undermine decades of work to enhance the protection of defenders.

The above steps and benchmarks outlined for each of the two principle avenues of current development within the UN will go some way in seizing that opportunity.

Michael Ineichen leads and coordinates ISHR's work at the UN Human Rights Council and in relation to the issue of business and human rights. Contact him at [email protected] and follow him on Twitter at @IneichenM  

UN Photo/Violaine Martin