I. Introduction
The last few years have seen a significant increase in attention by human rights experts, intergovernmental institutions, but also civil society and businesses themselves, to the situation of human rights defenders (HRDs)Footnote 1 in the business and human rights space.
The UN Special Rapporteur on the situation of HRDs has focused a full report to the UN General Assembly on defenders in the context of business.Footnote 2 The report builds on global consultations he conducted and expands the analysis contained in his earlier reports, which focused on environmental and economic, social and cultural rights defenders.
Simultaneously, the UN Working Group on Business and Human Rights is in the process of developing guidance for companies on ‘engaging, respecting and supporting human rights defenders’, and to seek to turn what often is an adversarial relationship into a more cooperative one.
Why is there this marked increase in attention to the HRDs-business nexus, what is at stake for HRDs and business, and how can they build on new momentum? This piece seeks to explore these questions.
II. New Framing of an Old Debate
Neither the business and human rights debate, nor the struggle of human rights activists to seek protection for their own work and ability to operate are new. However, the increasing attention to the agency of those defending rights in the context of business provides a new frame, which is attracting rapidly increasing attention from civil society, experts, business representatives and states alike.
This new focus within the larger debate on business and human rights is critical, as a holistic and consistent interpretation of the United Nations Guiding Principles on Business and Human Rights (UNGPs) must contain a focus on HRDs and the role of business in both targeting and supporting them.
This heightened attention to HRDs could not come at a more important time. The operating environment for HRDs in many jurisdictions is dangerous and deteriorating. Attacks, restrictions and reprisals against HRDs, perpetrated by both state and non-state actors, persist in countries in all regions of the world. Drivers of this situation include the perceived imperative of economic development, corruption and collusion between states and business enterprises, rising inequalities, and increased conflict over scarce land and water resources. Other factors include mass migration and worsening xenophobia, misogyny and other forms of bigotry, religious fundamentalism, and the assertion of negative traditional cultures and values.Footnote 3 Efforts to address these root causes are often stymied on two fronts: the increased political and economic influence of authoritarian states and the growing illiberalism of some democratic states.
However, as documented by the World Economic Forum’s (WEF) 2017 Global Risk Report, and CIVICUS’ 2017 State of Civil Society Report, the interconnections – positive and negative – between the operating environment of civil society on the one hand and business on the other are becoming increasingly obvious. The ‘fraying of the rule of law and declining civic freedoms’Footnote 4 identified in the WEF report are more and more understood as key business risks.
Understood in this way, progressive business enterprises are starting to recognize the significant costs associated with the global crackdown on HRDs. Part of the reason lies in continued civil society advocacy demanding protection for their space. From a substantive point of view, however, it is also an indication of the evolving understanding of the UNGPs. It is increasingly obvious that a narrow conception of the corporate responsibility to respect human rights falls short if it ignores the corresponding ‘positive duty to support [the creation of] an environment that is conducive to the work of defenders’.Footnote 5
III. HRDs Under Attack
The trend of ‘closing space’, or perhaps more fittingly the ‘global crackdown on civil society’, is well documented by civil society organizations,Footnote 6 the media and human rights experts. As reported by The Guardian in 2015, ‘almost half the world’s states have implemented controls that affect tens of thousands of organizations across the globe,’Footnote 7 and ratings released by CIVICUS in October 2017 show a continuation of the trend towards restricting space for civil society.
HRDs working on business and human rights are considered one of the most vulnerable groups, owing among other things to the significant power and resource differential between themselves and the corporations they seek to hold accountable, as well as to the collusion between states or corrupt elites and corporations. Examples of attacks range from abusive lawsuits like the defamation charges filed against chicken farm workers seeking to improve their working conditions in Thailand,Footnote 8 to the physical threats and attacks against human rights defenders, such as the case of Rafael Maldonado in Guatemala, which was documented by the Special Rapporteur.Footnote 9
In his latest report to the General Assembly on this topic, the Special Rapporteur expresses concern that ‘defenders are suffering attacks by overpowering business actors’, a situation which he sees ‘compounded by a lack of state action in response to these attacks’.Footnote 10 Importantly, this failure to act ‘applies to [home and host] states of the business entities involved’.Footnote 11
On the positive side, however, HRDs, global civil society and donors are responding by increasing collaboration and coordination, and developing new strategies and coalitions to ‘fight back’.
In collaboration with the Business and Human Rights Resource Centre (BHRRC), the International Service for Human Rights (ISHR) is convening an informal network of business leaders who see the mutual interest of civil society and progressive businesses in an environment that is protective of HRDs, and in which civic freedoms are respected. This collaboration provides a platform for corporations to better understand the challenges and risks faced by HRDs, to explore avenues for action in support of HRDs by individual companies or collectively, and to develop tools for identifying, mitigating and overcoming barriers to taking such action. To date, this effort has contributed to putting HRDs more explicitly on the radar of businesses as evidenced by the inclusion of a focus on HRDs in their human rights reporting and policies.Footnote 12 Over time, such collaborations have the potential of building a much broader constituency to resist the global crackdown on civil society, and to empower and defend HRDs.
Other examples of the intensive thinking and research currently ongoing include the European Center for Constitutional Human Rights’ (ECCHR) recent review of strategies to support civil society under pressure in India, Mexico, the Philippines and South Africa;Footnote 13 the Association for Women’s Rights in Development (AWID) has developed a set of recommendations and practical strategies focusing on women HRDs in the extractive sector;Footnote 14 and CIVICUS, with the support of a global group of civil society actors, has recently launched the ‘Vuka! Coalition for civic action’, aiming to develop new coalitions and strategies to resist the closing of space.
IV. Can, Should and Will Business Protect ‘Troublemakers’?
The lived experience of defenders in interacting with business, and therefore the relations among them, will vary dramatically depending on context, geography and identity: indigenous HRDs impacted by an energy project may not be interested in engaging at all with the company operating in their territory, unionized workers in a garment factory that is part of a global supply chain may feel differently, and HRDs subject to asset freezes in an authoritarian state may well want to know why a global bank is complicit in their repression.
In the past, the relations between companies and HRDs were mostly characterized by conflict. This is still the case for the most dangerous and conflictual sectors and contexts. HRDs and civil society – especially those directly opposing or harmed by business conduct – find it challenging or impossible to engage with companies, and see little value in looking beyond the role of business as perpetrator. Indeed, the BHRRC Database of attacks against HRDs compiles hundreds of cases of attacks, restrictions and threats against defenders. Such cases clearly show the extent to which companies are ‘perpetrators’ or at least ‘beneficiaries’ of such attacks.
ISHR’s experience and work to provide advice and advocacy support to HRDs confirms the lack of trust and scepticism about direct engagement. In our conversations with HRDs, the starting point is very often one of not wanting to engage with corporations. While ISHR takes these concerns very seriously, and we are aware of the risk of ‘whitewashing’, the global situation of civil society is at a political juncture where exploring new collaborations may be worth that risk.
Despite the scepticism, HRDs are starting to articulate what role they see for businesses. A statement by a group of NGOs to the 2015 Forum on Business and Human Rights sets out the expectation on business to consult with, respect and advocate for HRDs.Footnote 15 More recently, the International Labor Rights Forum urged brands, which are sourcing from Cambodia, to speak out publicly and use their leverage privately to respond to the increased repression and closing of democratic and civil society space in the country.Footnote 16
However, the mistrust among business and defenders is often mutual. Many businesses continue to see HRDs and civic freedoms predominantly as a hindrance to having a good relationship with states and other businesses, and as ‘obstacles’ to obtaining good returns from investments into natural resource extraction. They may also see the shrinking of civic freedoms as an opportunity to produce more cheaply, or even as a pre-condition to sell their products.Footnote 17
Hence, corporations often see HRDs as ‘troublemakers’ who stand in the way of smooth operations.Footnote 18 Therefore, many corporations are reluctant, ill-equipped and uncomfortable to engage. This is particularly pronounced where the grievances expressed by HRDs are directly opposed to the operations of the concerned company.
Nevertheless, this cannot allow us to abandon efforts for change. The above-mentioned database contributes to a more nuanced understanding of the business involvement in closing space for defenders, by shedding light on the industries, countries and companies involved in such attacks. It can help calling out the worst abusers and, by doing so, provide the basis to identify a ‘negative business case’ of particular contexts in which defenders are routinely attacked in the interest of short-term business interests. Similarly, it can also help identify leading companies and the respective positive business case connected to more constructive relations with HRDs.
V. Towards New Alliances
While the role of business as an ally of HRDs is still emerging, it is becoming better understood by business and civil society alike.
In his piece on defending human rights in the face of ‘the populist threat’, Professor Philipp Alston invites the human rights community and business ‘to start thinking about where, how and when [businesses] can legitimately and constructively stand up to policies that cross certain lines and how they can use their influence and power to make the case for more human rights friendly approaches’.Footnote 19 Indeed, the stance of a growing number of companies is to see civic freedoms as a key component of a positive business environment, wherever they operate, and to treat HRDs as partners essential to doing business in line with the UNGPs and for achieving their Sustainable Development Goals (SDG) targets.Footnote 20
In part driven by this increased understanding, and by growing investor attention,Footnote 21 companies are starting to develop specific policies on HRDs. As pointed out by the Special Rapporteur, very few general human rights policy statements include a specific focus on defenders,Footnote 22 and the examples of dedicated HRDs’ policies are even fewer. However, there is emerging good practice through stand-alone statements,Footnote 23 or as part of general human rights policies.Footnote 24 Interestingly, some sectors are lagging behind even these timid steps, such as the food and beverage sector, which according to a recent Oxfam report has yet to even include ‘activists and communities’ in its analytical lens.Footnote 25
While policy commitments to respect and not interfere with the work of HRDs and to recognize their contribution to human rights protection are important, the real test will be their implementation. Companies will have to ensure the effective implementation of such policies both within the company and within its supply and value chains. Contractual and procurement conditions can play a role in this regard, by requiring the adoption of such policy commitments, and by setting clear expectations in terms of including a HRDs focus in due diligence processes and impact assessments.
At the moment, most of the practical evidence of business practice still points in the direction of ‘business as perpetrators’. This is at least in part due to the lack of publicly available information on positive instances of business using its leverage to address restrictions on civic space. While there are some recent concrete examples of corporations intervening to object to restrictive civil society policies and laws, generally these interventions are done privately and thus are hard to evaluate and impossible to publicly report.
There is slightly more information publicly available of business actors intervening in support of individuals. Even though there are only a handful of examples of business coming to the defence of HRDs, they can serve as important inspiration to further develop practice in that regard.
A recent and emblematic example is the so called Thammakaset case in which the Foreign Trade Association (FTA) intervened publicly in support of the Migrant Workers Rights Network and Andy Hall in Thailand in a criminal defamation case against them. The FTA states that ‘freedom of expression is a fundamental right, and victims […] and HRDs need to be able to openly voice their […] concerns’.Footnote 26
It is also worth recalling the significant case in 2015, when three jewellery companies issued public statements, which contributed to the dropping of charges against Rafael Marques, an Angolan journalist charged with defamation after exposing abuses in the diamond industry. In addition, in 2014, major apparel companies sourcing from Cambodia helped bring an end to the violence by condemning the government for its violent crackdown on striking garment workers that resulted in deaths and injuries.
These cases are only the public or best-known ones. While they perhaps do not hide an entire iceberg, our informal engagement with a range of companies in diverse sectors suggests an increasing willingness of companies to look beyond the immediate impact of their operations, and use their leverage to improve the overall environment for civil society and HRDs.
VI. Moving Forward
What should come next in order to build on the growing concern about HRDs in the business and human rights space? As a first step, in developing the agenda further, the safety of HRDs must be ensured. Continued monitoring and reporting by civil society and UN experts is required, to ensure that the gravity of threats and attacks on defenders is captured and that companies which attack or threaten HRDs can be held to account.
That said, as highlighted in this piece, many stakeholders have recognized the need to protect and support HRDs, and the recognition of a shared interest in more open, rights-respecting societies both by progressive companies and civil society is on the rise. However, if the UNGPs are to effectively prevent and address business-related human rights harm, it is vital to further evolve the understanding of the corporate responsibility to respect human rights by including a focus on those defending them.
Both formal commitments by companies as well as business practice on defending HRDs are still isolated and inconsistent. Additional steps by business, states, civil society and not least by HRDs themselves are needed. The recommendations of the Special Rapporteur on human rights defenders provide a useful blueprint particularly for states, business actors and investors.Footnote 27 Building on those recommendations, the following additional steps can be highlighted as critical.
First, companies who want to remain at the forefront of implementing the UNGPs, and to get ahead of the game in terms of future legislative and policy developments, should become ‘champions for HRDs’. They should strive to lead their sector or industry through developing progressive policy and practice in support of HRDs. Businesses who understand the value of respecting and engaging with defenders, and of an overall enabling operating environment for their work should develop ways of internalizing the risk of closing space for civil society in their processes and operations.
The call by the Special Rapporteur to include an analysis of the situation of civic freedoms and HRDs in human rights impact assessments is one way of doing so. Speaking out and engaging with governments about actual restrictions on HRDs would be another.
The UN Working Group on Business and Human Rights’ development of ‘guidance for business on engaging, respecting and supporting HRDs and preserving civic space in line with the UN Guiding Principles on Business and Human Rights’ should also serve to raise the bar in terms of business action on HRDs.Footnote 28
Secondly, states and in particular those with an existing policy commitment to protect HRDs,Footnote 29 must lead by example. They can do so by embedding policies for the protection of defenders in their own economic actions. State-owned or controlled companies, public procurement, and export credit support, are critical in this regard.
In contexts where the ‘business case’ for respecting HRDs is less strong, and companies may even benefit from attacks on defenders, we must change the incentive structure (even extraterritorially) for those companies, through both peer pressure and regulatory action.
The Special Rapporteur recommends that states adopt legislation and policy to close the biggest gaps in that regard: effectively implementing international obligations with regard to free, prior and informed consent; requiring mandatory due diligence which includes a focus on HRDs; access to information laws which facilitate the work of HRDs such as by requiring the public disclosure of information about corporate structures; as well as stronger National Action Plans on business and human rights that help to protect HRDs.Footnote 30
Finally, among civil society and HRDs, there is also a need for a more robust and nuanced conversation with a view to refining strategies and developing common messaging. Such a conversation should set out the key threats and opportunities of closer engagement between HRDs and business, the conditions under which business leverage can and should be sought, and principles underpinning such engagement to mitigate the power differential among HRDs and corporations. A broad and inclusive process of consultation involving HRDs from different backgrounds, fields of activity and experiences is critical for that, and the many decades of experience by trade unions, such as through the negotiation and operationalization of global framework agreements, will be instructive in that regard.
