Breaking silence: Getting companies, govts. and the UN to speak out to protect defenders

Ella Skybenko & Ana Zbona, Business & Human Rights Resource Centre

Environmental human rights defenders and other activists that are confronting corporations got a rare moment in the spotlight last week when the Special Rapporteur on the situation of Human Rights Defenders presented his report on environmental defenders to the UN General Assembly. With the number of attacks and murders of environmental defenders continuing to grow, this attention is welcome, but the silence around the attacks is still all too common.

As we write this, Sergey Nikiforov, an Evenk indigenous people’s leader and environmental rights defender, is serving a prison term in strict regime correctional colony in the Russian Far East. He was sentenced by a court in Russia to four years in prison and a fine for bribery and fraud. Sergey Nikiforov was leading his village’s protests against alleged negative impacts of the operations of UK-registered gold mining company Petropavlovsk, which reportedly intends to extract ore from Evenk ancestral territories in Russia. The charges against Sergey were brought by the engineering company DalTeploEnergo and relate to a building project that he commissioned in 2012 from the firm. According to the activists and villagers, however, the true reason for his imprisonment was the fact that he had led his village’s protests against Petropavlovsk’s operations.

How are companies responding?

At Business & Human Rights Resource Centre, we regularly approach companies to respond to allegations from human rights defenders. In November 2015, we learnt about Sergey’s case and put our company response mechanism in motion. Considering the responsibility of companies to respect human rights under the UN Guiding Principles on Business and Human Rights, we invited DalTeploEnergo and Petropavlovsk to respond to the allegations raised by local villagers and activists. The companies did not respond, and we highlighted their silence through our networks.  Shortly thereafter, Amnesty International initiated an Urgent Action calling for immediate release of Sergey Nikiforov as a prisoner of conscience.

We invited DalTeploEnergo and Petropavlovsk to respond to the allegations raised by local villagers and activists. The companies did not respond.

The UN Guiding Principles on Business and Human Rights also establish the responsibility of companies, including financial institutions, to undertake human rights due diligence on the companies they invest in.  Therefore, we approached reported shareholders of Petropavlovsk, asking them to comment on the allegations. The outcome of this effort was disappointing, although revealing.  Only two out of five shareholders responded: UBS Switzerland said it does not “comment on specific or potential client relations or transactions or its investments in any particular company”. Prudential promised to follow up “with the company in order to gain a better understanding of the issues referred to in the report”. The others - Sothic Capital European Opportunities Master Fund Limited, Cape View Capital and D.E. Shaw & Co. - remained silent. We will follow up with Prudential in the coming weeks to ask about the outcome of their inquiry.

How are governments and UN mechanisms responding?

Due to the severity of the case and the weak responses from companies, we also decided to submit a complaint through the UN complaints mechanism available through the office of the UN Special Rapporteur on the situation of human rights defenders, Mr. Michel Forst. After 3 months of drawing blanks, we gave constructive feedback on our experience of using the mechanism to the Special Rapporteur directly. Among the issues highlighted were serious language barriers, time delays, and lack of communication that, in our opinion, hindered the effectiveness of the UN complaints mechanism.

Among the issues highlighted were serious language barriers, time delays, and lack of communication that, in our opinion, hindered the effectiveness of the UN complaints mechanism.

The issues that came across most strongly were accessibility and follow-up.  The guidelines for submitting allegations of violations against human rights defenders were available in English only and complaints were expected to be submitted in English. This immediately made this mechanism inaccessible to NGOs and human rights defenders from non-English speaking countries that don’t have resources to translate documents, such as the local activists in Siberia. Although we supported Sergey in overcoming this barrier by submitting the case on his behalf, opaque procedures made it difficult for us to follow up on the status of the case. The letters by the Special Rapporteur to Governments are presented to the Human Rights Council in the form of a communications report only three times a year. When we reached out and inquired about our complaint, we were told that the rules prohibited sharing any updates. These procedures greatly reduce the ability of human rights defenders and civil society organizations to put pressure on the governments to respond to letters received by the Special Rapporteur. The result was that eight months after submitting the complaint, we heard nothing about the steps that the mechanism has taken on the case, Sergey, or the community.

Since that initial contact with the Special Rapporteur on Sergey’s case, there have been some improvements. The information about the case was finally included in the Communications report of the Special Procedures published in September 2016. According to the case summary, on 26 May 2016 the Special Rapporteur sent a letter to the Russian Government asking it to investigate and address the alleged abuses and to inform him of the resulting actions. The Russian Government has not responded yet. As in about 50% of cases, this may be another case where the government ignores the communication by the Special Rapporteur.

As in about 50% of cases, this may be another case where the government ignores the communication by the Special Rapporteur.

Moreover, “resource limitations” - in other words, the chronic underfunding of the Special Procedures, which receive miniscule resources for the momentous task they are trying to accomplish and that have a UN mandate but are not paid employees of the organization - make “it impossible for the Special Rapporteur to follow-up on every case”, as the Special Rapporteur himself points out. The office of the UN Special Rapporteur has recently made some progress in addressing the language barrier issue by adding to its website complaint templates in French and Spanish. We hope to learn about other steps taken by the Special Rapporteur’s office to further improve the accessibility of the mechanism, given the deteriorating context in which human rights defenders operate.

Stepping up actions

Last week, Special Rapporteur’ latest report on environmental defenders, which was presented to the General Assembly during its 71st session, put people like Sergey onto the central stage. In the report, the Special Rapporteur expressed he was extremely worried and appalled by growing number of attacks and murders of environmental defenders and continuous resistance of States to act. The Special Rapporteur called on states and business enterprises to adopt zero-tolerance approach to killing and violence against defenders. Sergey’s case is just one of the many cases in which, as the report states, businesses  had  been  involved  in  restricting legitimate activities  of environmental defenders.  The report stresses that business must respect the rights of defenders to express dissent and oppose their activities and ensure their subsidiaries and private security firms and contractors acting on their behalf refrain from harming defenders and restricting their rights.

Special Rapporteur’ latest report on environmental defenders put people like Sergey onto the central stage.The Special Rapporteur is extremely worried and appalled by growing number of attacks and murders of environmental defenders. He says business must respect the rights of defenders to express dissent and oppose their activities and ensure their subsidiaries and private security firms and contractors acting on their behalf refrain from harming defenders and restricting their rights.

Today, in most cases, human rights defenders are still not supported enough in their unequal battles with companies and governments. We need progressive businesses to stand up to restrictions on civic freedoms and attacks on defenders, as some are already doing, and make the case that companies thrive in an open environment where abuse gets exposed, and where there is a reward for good business practice that respects communities and creates decent work, rather than one that punishes dissent. We need businesses and investors to include policies or position statements on human rights defenders into their sustainability policies – as adidas has done - and to act in line with them.  We need states to adopt zero-tolerance approach to killing and violence against defenders, keep the civic space open and vibrant, answer to Special Rapporteur’s inquiries, and hold perpetrators to account. And lastly, we need states to put enough resources and support into international mechanisms for them to be able to reach wherever businesses operate and wherever those that stand up to corporate abuse come under threat.  Without truly robust, accessible and well-funded mechanisms, there is no last line of defense for human rights defenders working against corporate abuse.