May 14 and 15, 2009: Latin American Statement of NGOs and Organizations and Organizations Representing Affected Communities by Enterprises - 2009
Statement of Non Governmental Organizations and Organizations Representing Affected Communities by Enterprises
The Regional Consultation of the Representative of the Secretary General of United Nations for Human Rights, Transnational Corporations and Other Business Enterprises
Buenos Aires, Argentina, May 14 and 15 2009
In the past years civil society organizations have witnessed an increase of conflicts between multinational corporations and other enterprises, governments, affected population due to their activities, and human rights defenders. As consequence, many enterprises have been sued judicially at international and national level. However, there are not any specific mechanisms in the United Nations to solve these conflicts. The convergence between the increase of demands against governments and enterprises, the election of progressive governments in South America since 2002, like the recent change of position of the Northern countries regarding the role of the State, along with the crisis in the global financial system, have highlighted the United Nations, enterprises and financing organizations for the need of a deeper debate regarding the relationship between enterprises and human rights.
Human rights have been conceived to assure intrinsic dignity and equal and inalienable rights to all human beings, including those who suffer negative consequences of entrepreneurial activity. Paradoxically, the victims of these abuses are the absent party in the debate about the crucial relationship between enterprises and human rights. This way, a great majority of the debates on these issues have had the participation of experts, representatives of the academy, NGOs, enterprise leaders, lawyers. However, the great absent parties have been the populations directly affected by the activities of the enterprises. In this context, it is urgent to assure a greater participation of these communities and organizations which work with them at local level in the consultations United Nations carries out in this field. It draws attention that for it, in the present consultation their number has diminished regarding these kinds of entities which participated in the Bogota Consultation in 2007.
In contrast with the mandate of other Special Procedures of United Nations which frequently require of visits to other countries involved and the work with persons affected directly, this mandate has adopted an academic approach, and leaves in a second place the direct interaction with persons that guarantee, regarding the grounds of protection and respect of human rights affected by enterprises. This in spite of the clear instruction of the Human Rights Commission (Resolution 2005/69) and the Council of Rights of the United Nations (Resolution 8/7) who when creating or renewing the mandate, respectively, demanded to "continue with the consultations about the issues covered by the mandate in a continuous manner with all the interested parties, including (...) civil society, including (...) indigenous peoples and other affected communities and non governmental organizations". (Our highlight and translation).
This approach overlooks the validity that the international norms that oblige enterprises to respect all human rights depend, in great measure, of the pressure exerted by social and union movements, NGOs, indigenous peoples and communities affected by the enterprises activities; before than the will of the States or the enterprises themselves. Especially when the United Nations lacks effective mechanisms to make the violations to these rights public.
To contribute in overcoming this situation, from the civil society, the organizations that subscribe below, will make the following statements and proposals to be taken into account by the Special Representative:
1) We sustain that there should not be three but four pillars directed to form a framework which will make possible for enterprises to respect human rights. Namely:
- a. The duty of the States to protect the victims before human rights abuses committed by third parties, in particular enterprises.
- b. The obligation of the enterprises of respecting human rights.
- c. The need to provide the victims effective remedies before the human rights violations.
- d. The rights of persons and communities affected by violations to their human rights on behalf of enterprises, to resist such violations and the proper protection to human rights defenders which are threatened, criminalized and possibly murdered demanding the enterprises respect for human rights.
2) We urge the Special Representative to adopt formal and systematic consultation mechanisms for the affected populations regarding the enterprise's activities. We propose:
- a. That the mandate recognizes the right that affected persons and communities by human rights violations on behalf of enterprises have to resist such violations, and the right of human rights defenders to fulfill their mission in this field; rights, both, which form the fourth pillar required to conform an effective framework directed to enterprises which respect human rights;
- b. That the mandate establishes formal and systematic consultation instances for affected persons and communities due to the enterprises activities in different countries and to promote work with persons directly affected by the enterprises.
- c. That the mandate integrates as suitable information source the conclusions of the Peoples Permanent Tribunal regarding the impact on human rights of the activities of enterprises and international financial institutions.
- d. That the mandate bears in mind, for these situations, the international consultation standards regarding the Indigenous Peoples rights integrated in the last years by the international human rights protection system, which include, among other aspects, the obligation of consulting in good faith the aforementioned peoples through their representative institutions (Accord 169 ILO) and the free consent, anticipated and informed of these (UN Declaration on Rights of Indigenous Peoples) when adopting measures which can possibly affect them.
- e. Last, we request the Special Representative to require the States to grant guarantees for the security and well being of the victims that offer their testimonies or for their representatives to avoid the possibility of adopting retaliation against them on behalf of State of non State actors.
3) Regarding the duty of the States of Protecting, we propose:
- a. That the States strengthen their democracies, through the creation and strengthening of inclusive mechanisms for democratic participation in favor of affected populations by projects or investments of enterprises, so these are not implemented without the consultation and free consent, previous and well informed of the affected population; and without verifying the needs and objectives that justify their implementation;
- b. That they foresee timely and effectively environmental and social impacts and alterations derived from these projects, like their implications in the way of living and other material aspects related to the subsistence of the mentioned populations;
- c. That human rights defenders be protected and avoid arbitrary criminalization of the actions they develop in approval with the United Nations Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms (Resolution of General Assembly 53/144 March 8th 1999).
4) Regarding the right of the victims of providing resources and mechanisms for effective reparation, the subscribing organizations express:
- a. The need that the Special Representative grants fundamental importance to the right of these to access effective resources, in particular internal judicial resources in agreement with that established in human rights international law. The States have the obligation of establishing the necessary conditions to allow affected persons and communities for the abuse of their fundamental rights on behalf of the enterprise's to access justice, through accessible and effective resources that offer integral reparation for the ilicits committed, guarantying that the responsible parties assume their responsibility and adopt measures for non repetition.
- b. The need that the Special Representative dedicates special efforts to determine the concrete measures that can contribute to strengthen the national judicial systems, both in local ambit as though the international cooperation. We recognize that the national human rights institution can play an important role in the resolution of the abuse on behalf of the enterprises, but we insist that the Special Representative must pay particular attention to the obstacles and impediments that make access to justice very difficult for the victims.
- c. Simultaneously, and due precisely to the weak systems of internal justice, we believe that the Special Representative must explore seriously the possibility of recommending the creation of a judicial universal mechanism or quasi-judicial, which will allow to give a response, even preventive, to disputes between enterprises and affected persons and communities. This adjudicative mechanism must complement and strengthen existing claim instances, gathering and developing the experience already accomplished in the mechanisms of supervision of fulfillment of human rights standards at regional and international level.
5) We sustain the supremacy of human rights as framework of action of States and enterprises:
- a. Articles 55 and 56 of the United Nations Charter impose all States the duty of higher standards of living, full employment, and conditions of economic and social progress and development; universal respect for, and observance of, human rights and fundamental freedoms for all, like the obligation of adopting measures, by themselves, or by the international cooperation, to fulfill these objectives. With subject of article 103 of the Charter, in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
- b. Reduce the "governability loophole", that constitutes the "root of the problem of human rights and enterprises", demand a clarification that this and not other is the reference framework or general objective of policy that must preside the governmental and enterprises actions. Publicly highlight the imperative character of the human rights primacy principle will help dispel the "vertical and horizontal incongruities" which, frequently, incur the States when defining their investment and trade policies. It will allow submitting the "legal rights" of enterprises in this framework, including the parameters that presides the instances of international arbitration and other ad hoc mechanisms, created with the same object in the multilateral agencies and free trade agreements. It will also make possible, to clarify the juridical framework enterprises must submit, précising that this goes beyond the fulfillment of national laws and must be subject of international law and human rights and international humanitarian law. And, allow, likewise, clarifying that this duty reaches everyone and is not limited to a set of rights.
- c. The organizations that subscribe below insist, likewise, about the importance that the arbitration tribunals in the matter of investment and trade operate under the CIADI or the UNCITRAL regulations are subject to international human rights norms. Also, we urge the Special Representative to go beyond regarding this theme elaborating proposals that not only avoid these contracts being subscribed by host States in the future, but exploring the review of valid contracts or their declaration as void.
6) We sustain the need of creating international standards regarding enterprises and Human rights
The subscribing organizations consider that it is necessary to count with global intergovernmental standards about enterprises and human rights so to strengthen the protection of the mentioned rights and provide a common framework for the efforts destined to solve problems related with enterprise behavior. This way, we repeat the call so the Special Representative recommends the beginning of an intergovernmental process to adopt the international norms regarding enterprises and human rights. This process could start with a related initiative but independent on behalf of the governments - informed by conceptual and political debates in courses leaded by the Special Representative - with the objective of laying the foundation to develop international standards. This process could occur through an intergovernmental process in the framework of United Nations with the objective of negotiating and possibly adopting a declaration or other similar instrument, which will contribute to lay conceptual and political foundations of future development of international law regarding this theme. This way, such common standard, global and accountable will serve as a base to establish effective mechanisms for claims and accountability so necessary for the communities and base groups that continue confronting the involvement of enterprises in human rights abuses.
Finally, we value the notification to this Regional Consultation by the Special Representative, recognizing the progress made in the 2008 report, like the inclusion of some contributions made by the civil society. We consider this Regional Consultation as an additional opportunity to continue sharing with you our vision regarding this theme. For this we send this communication with our visions about relevant elements that according to us must be considered in the future development of your mandate.
- Asociación Civil por la Igualdad y la Justicia (ACIJ), Argentina
- Centro de Asesoría Laboral del Perú (CEDAL), Perú
- Centro de Derechos Económicos y Sociales, Ecuador
- Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia), Colombia
- Centro de Estudios Legales y Sociales, Argentina
- Centro de Políticas Públicas y Derechos Humanos (Perú EQUIDAD), Perú
- Colectivo de Abogados José Alvear Restrepo, Colombia
- Comisión Ecuménica de Derechos Humanos, Ecuador
- Coordinadora Nacional de Derechos Humanos, Perú
- CONAPI, Paraguay
- Corporación Jurídica Yira Castro, Colombia
- CEADESC, Bolivia
- FOCO, Argentina
- ILSA, Colombia
- Instituto Mexicano para el Desarrollo Comunitario, A.C., México
- Justiça Global, Brasil
- Movimento dos Atingidos por Barragens, Brasil
- Observatorio Ciudadano, Chile
- Observatorio Social de Empresas Trasnacionales, Megaproyectos y Derechos Humanos, Colombia
- ProDESC, México
- Terra de Direitos, Brasil