Without Map or Compass

Credit Suisse, UBS and Human Rights

A Berne Declaration discussion paper

Andreas Missbach, Ph.D., Urs Rybi April 2010

Berne Declaration

Who we are The Berne Declaration (BD) is an independent organization specializing in questions of development and financed for the most part by members and donors. BD is commited to global justice and addresses issues like:

• Corporate (CSR) • Economic relations and trade policy • Financial markets and banks • Agriculture, biodiversity and intellectual property • Textile industry ()

What we do We seek to influence the debate on issues of development policy in Switzerland, inform the public about inequitable relations between South and North and intervene with international institutions of finance and economics. As a partner in a worldwide network of organizations for human rights, development and the environment we are committed to a globalization that respects justice and humanity. For more information go to www.evb.ch.

Berne Declaration, Dienerstrasse 12, Postbox, CH-8026 Zürich, Switzerland Phone +41 44 2 777 000; Fax +41 44 2 777 001 [email protected]

2 Contents

Executive Summary ______4

1. Introduction ______5

2. and Case Studies ______6 2.1 Methodology______6 2.2 Selection criteria ______6 2.3 Financial research ______7 2.4 Human Rights Research ______7

3. Results: Affected Rights ______9 Case Study: Right to Life Violated ______9 Case Study: Violation of the Ban on Forced Labor ______9

4. Human Rights Obligations of Banks ______10 4.1. «Corporate Responsibility to Respect» ______10 4.2 «Due Diligence» ______10 4.3 Project Finance and Equator Principles ______10 4.4. Responsibility for Indirect Involvement in Human Rights Violations ______11

5. Human Rights Standards of Banks ______13 5.1. Human Rights at UBS and Credit Suisse ______13 5.2. Human Rights Standards of Other International Banks ______13

6. What is Missing: Policy, Standards, and Implementation ______15 6.1. A Substantial Human Rights Policy ______15 6.2. Systematic Consideration of Human Rights in Sector Standards ______15 6.3. Transparency ______15 6.4. Implementation ______16

7. Conclusion ______17

Appendix 1: Examples of Human Rights and Related Cases of Reported Violations

3 Executive Summary

The Berne Declaration investigated the financial plementing a comprehensive human rights due connections between the two largest Swiss diligence. banks, Credit Suisse and UBS and companies The Berne Declaration urges Credit Suisse and embroiled in serious controversies about human UBS to develop a comprehensive human rights rights such as the right to life, the right to policy. Among other things this means assessing security, the right to health, the right to food the potential impact on human rights of all and water. This paper gives an overview of proposed business transactions. The banks must concrete cases and violated rights. Elaborating implant the respect for human rights in their on the reports of the UN Special Representative standards and processes. We also expect them to on business and human rights we show that for publish their policies and standards because the the banks the «corporate responsibility to time for secrecy in banking and elsewhere is respect» should mean nothing less than im- definitely over.

4 1. Introduction

Recognized the world over as the core society’s expectation for business to do the right documents of human rights, the Universal thing: «The social license to operate is based in Declaration of Human Rights of 1948 along with prevailing social norms that can be as important the two binding covenants on «civil and to the success of a business as legal norms. Of political rights» and «economic, social and course social norms can vary by region and cultural rights» (both 1966) assign states and industry. But one term has acquired near- governments the primary responsibility to universal recognition by all stakeholders, promote and protect human rights. Even the namely the corporate responsibility to respect preamble of the Universal Declaration states, human rights, or, put it simply, to not infringe however, that «every individual and every on the rights of others.»1 organ of society» has the duty to uphold human The financial crisis, significantly triggered by rights – and that includes corporations. As a the shortsighted high-risk behavior of banks, has result of the dramatic rise of global corporations, had a serious negative impact on the actua- serious human rights violations in the sphere of lization of the social and economic rights of corporate responsibility and the activities of countless human beings, especially in deve- non-governmental organizations since the 1990s loping and emerging countries.2 If anything, the corporate responsibility has become a main crisis has increased the relevance of human focus of the human rights discussion. rights for corporations in general and for banks Thanks to the activities of Professor John in particular. In last year’s report to the Human Ruggie, Special Representative of the Secretary Rights Council the SRSG wrote: «Companies General (SRSG) on the issue of human rights have had to acknowledge that business as usual and transnational corporations and other is not good enough for anybody, including business enterprises, the debate on the human business itself, and that they must better rights obligations of corporations has picked up integrate societal concerns into their long-term additional momentum in recent years. At issue strategic goals. Society as a whole cries out for is not just whether corporations abide by the remedy where wrong has been done. The terms law and commit no illegal acts. As the SRSG transparency and resonate more makes sufficiently clear corporate responsibility widely than before. And calls for fairness are goes beyond that and the actual discussion on more insistent.»3 corporations and human rights revolves around

1 A/HRC/11/13, para 46, p. 13. 2 See the BankTrack-Position about the financial crisis: www.banktrack.org/download/bank_to_the_future_el_e scorial_statement 3 A/HRC/11/13, para 10, p. 6.

5 2. Methodology and Case Studies

The goal and purpose of our research was to multi-step tracking process is needed to show demonstrate the connection between individual all the connections. Fig.1 gives an overview of banking transactions and the violation of a our methodology, which we explain in detail specific human right. With this rights-based further on. approach we are putting the affected people and their universal rights front and center.

2.1 Methodology

Since the banks’ involvement in human rights violations is usually indirect ("complicity") a

Fig. 1: Tracking‐Process

the client runs its business in a manner that 2.2 Selection criteria leads to human rights violations or that the The ‚finance initiative’ of the UN-environmental customers’ products or services are used in a program UNEP (abbr. UNEP FI) names three manner that causes or contributes to human areas where financial institutions frequently rights violations».4 confront human rights issues: clients and their activities, project finance and money laundering. For money laundering Switzerland has specific laws in effect. For non-recourse project finance the «Equator Principles» provide an industry standard (see 4.3) As a result our focus is on clients and their activities. UNEP FI identifies two specific risks in this area: «that 4 UNEP FI, CEO Briefing, Human rights, 2008, p. 4.

6 aspects that we did not cover. Our main concern 2.3 Financial research was to find examples that illustrate the problem As a background for this study and the BD as a whole. campaign website www.banksandhumanrights.ch, the Berne De- 2.4 Human Rights Research claration, with help from the economic research After we completed our finance research, we consultancy Profundo, examined the financial moved on to human rights research. By limiting connections of the two largest Swiss banks, ourselves to the International Bill of Human Credit Suisse and UBS, to over 80 companies Rights we chose a conservative yet almost accused of human rights abuses.5 universally accepted and accessible frame of We focused on important finance deals in reference,9 which also allows us to be generally corporate and investment banking (credits, consistent with «Human Rights Translated», the issuance of bonds and shares) from 2004 to UN manual for business.10 Thus, in making the 2009.6 We did not consider small holdings of case for indigenous land rights – still insuf- company shares or bonds (asset management) ficiently protected at the international level – because they do not create a strong bond we referred directly to the civil covenant between bank and company. (ICCPR) instead of basing our argument on the By the same token, a single bank’s decision to UN Declaration on the Rights of Indigenous buy, sell, or not-buy a share or a bond barely Peoples which, while explicit, is also non- affects the corporation. The connection between binding. In our view this frame of reference is a corporation (sometime even an individual the absolute minimum. Convincing due project) and a bank is much closer in corporate diligence processes are based on the totality of and investment banking. Without the helping international human rights norms and keep up hand of a bank a corporation could not do with their development. business as intended and would not be able to In the case of mining, oil and gas production we realize certain projects. specifically looked for projects that were Most of the companies we investigated are embroiled in human rights controversies. active in mining, oil or gas production and in Following the example of the «survey of the the agro fuel sector. Extractive industries are scope and patterns of alleged corporate-related particularly susceptible to human rights human rights abuses» that the SRSG submitted violations, as the SRSG also concluded in an to the Human Rights Council in 2008,11 we interim report in 2006. Of 65 reports about collected credible allegations without drawing human rights abuses by corporations, two thirds final conclusions about their merits. Actual concerned oil, gas and mining companies.7 case-by-case verification would require far more According to data provided by Nostromo resources. As a starting point for our research Research, Credit Suisse was the number three we used the database at business-human- provider of credits and loans to the mining rights.org. In the words of the UN Special industry from 2000 to 2006, while UBS was Representative, business-humanrights.org is «in ranked 11th.8 We also made exemplary inquiries the absence of a universal database that stores into two human rights hot spots: the production allegations of abuse, the most comprehensive, of cluster bombs and the cotton industry of objective source available». Our second main Uzbekistan. The Berne Declaration’s inves- source were the NGO-platform minesand- tigation into the financial connections of the communities.org and specialized NGOs on a largest Swiss banks to clients facing human local or international level, some linked to the rights allegations is by no means complete. Berne Declaration through shared international Human rights are basically relevant for all networks. banking activities. Obviously there are other Finite resources limited the size of our sample industries with human rights issues and even in to a fraction of all mining (11 of 27) and oil / gas the industries that we researched there are companies (4 of 14). (The 31 cases from these

5 9 http://bankenundmenschenrechte.ch/downloads In our frame of reference we included the "General /Profundo_2010_Swiss_banks_and_human_ Comments" of the two expert panels who monitor the rights.pdf implementation of the social and civil covenants. 6 With our focus on corporate and investment banking These recommendations for the implementation of our approach differs from the study of the Danish rights listed in the covenants, while lacking the binding Institute for Human Rights, which primarily addresses character of legal provisions, nevertheless have Asset management, see Danish Institute for Human considerable factual significance. Thus, in the Rights, Values Added, The Challenge of Integrating respective „Comments“ the right to housing, the right Human Rights into the Financial Sector, 2010. to food and the right to water, based on Articles 11 and 7 E/CN.4/2006/97, para. 25, p. 8. 12, are presented as separate rights. 8 10 Nostromo Research, From Money to Metals, http://www.ohchr.org/Documents/Publications http://moneytometal.org/index.php/From_Money_to_M /Human%20Rights%20Translated_web.pdf 11 etals A/HRC/8/5/Add.2, p. 8

7 industries, listed in Annex 1, have their origins individual project but to present some in 15 out of 41 corporations.) meaningful case studies of the violation of one In a next step, we identified the human rights right. that appeared to have been violated in each Cluster bombs, agrofuels and cotton production case, based on the available complaints. Human in Uzbekistan are not about individual projects rights, like a tightly woven net, are inextricably but about industries, thus they were directly linked and cannot be neatly separated. In reality associated with a relevant human right. Added one grievance often affects several rights at to the 31 cases in high risk industries, then, are once. However, the object was not to produce a 3 industry cases (see Table 1). complete human rights assessment of an

Finance research Human rights Controversial projects research and industries

Industry # of companies # of companies # of documented cases

Mining 27 11 25

Oil & Gas 14 4 6

Agro & Monoculture 9 712 1 (entire industry = 1 case)

Controversial Weapons 22 5 1 (entire industry = 1 case)

Uzbekistan Cotton Trade 5 5 1 (entire industry = 1 case)

Private Prisons USA 3 0 0

Other Companies 1 0 0

Minus double counts ‐3 ‐1

Total 78 31 34

Table 1: Summary presentation of Sample and Case Studies

12 Here, along with our own finance research, we used a Profundo study for Friends of the Earth: European financing of agrofuel production in Latin America, 2008.

8 3. Results: Affected Rights

The human rights addressed in the following release up to 2000 explosive charges in mid-air. overview and in the annex are the rights Because many of these charges fail to detonate associated with the cases under investigation. on impact they become in fact anti-personnel They are no more relevant for banks than other mines. Cluster bombs continue to kill people human rights. John Ruggie convincingly randomly long after the fighting has stopped. dismisses the notion of business-specific human According to Handicap International 98 percent rights: «Companies can affect the entire of cluster bomb victims are civilians.16 In spectrum of internationally recognized rights, December 2008, 94 countries, including not only a limited subset. (...) Therefore, the Switzerland, signed a convention against cluster quest to construct ex ante a delimited list of bombs in Oslo. Belgium, Ireland, Luxemburg business-specific rights for which companies and New Zealand prohibit investments in would have some responsibility is a fool’s cluster munitions producers. Denmark, errand. Virtually all rights are relevant, though Germany, the Netherlands, Norway and some may be more so than others in particular Switzerland are at various stages of considering circumstances. This fact needs to inform the parliamentary action on investments. policies of states and companies alike.»13 Case Study: Violation of the Ban on The researched cases could be associated with the following human rights: right to life, the ban Forced Labor on slavery and forced labor, right to personal Uzbekistan is the world’s third largest producer security, right to a fair trial, right to equality of cotton. Cotton production in this Central before the law, right of minorities to preserve Asian nation rests on a state sponsored system their identity, right to unionize and the right to of forced labor. In many instances that includes strike, right to adequate housing, right to children. Each year during the cotton harvest sufficient food, right to water, right to health. the government closes schools, universities, This selection constitutes a broad mix from the hospitals and state offices. Employees and categories of labor rights, cultural rights, rights students are forced to work in the fields.17 to a secure existence, procedural rights and According to a report of the International Crisis protection of personal integrity. Two cases – the Group, the Tashkent branch of Credit Suisse right to life and the ban on forced labor – will be provides foreign buyers of Uzbek cotton with presented in some detail below. The rest of the credits to pre-finance the trade.18 Our own cases are listed in detail in Annex 1. research shows that Credit Suisse has financial Case Study: Right to Life Violated dealings with some of the most important buyers of Uzbek cotton, including companies Credit Suisse and UBS participated in the such as Cargill, Daewoo International, Ecom financing of Lockheed Martin and Textron; Agroindustrial, Olam International and Paul Credit Suisse also in L-3 Communications and Reinhart. Alliant Techsystems. In April 2009, UBS Hana Asset Management, which is part of UBS, owned or managed 4.95% of the shares in Poongsan Corporation. All five companies are among the most important producers of cluster bombs or parts thereof.14 The Norwegian pension fund has blacklisted these companies.15 Cluster bombs are munitions containers that

13 Opening Remarks by Professor John G. Ruggie, Consultation on operationalizing the framework for business and human rights presented by the Special 16 Representative of the Secretary-General on the issue of Handicap International: Fatal Footprint: The Global human rights and transnational corporations and other Human Impact of Cluster Munitions, 2006, p. 42. 17 business enterprises, Geneva 5-6 October 2009. See also e.g. the report of the US Department of State 14 IKV Pax Christi and Netwerk Vlaanderen, Worldwide about human rights in Usbekistan: Investments in Cluster Munitions, 2009, p. 24 – 26. http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136096.ht 15 http://www.regjeringen.no/en/dep/fin/ m 18 Selected-topics/the-government-pension- International Crisis Group, The Curse of Cotton: Central fund/responsible-investments/companies-excluded- Asia's Destructive Monoculture, Crisis Group Asia from-the-investment-u.html?id=447122 Report N°93, 28 February 2005, p.4

9 4. Human Rights Obligations of Banks

So far the UN Special Representative on following core elements of the due diligence business and human rights has not focused process: extensively on the features of particular A human rights policy and detailed provisions industries, including the financial industry. But for its implementation. his comments about the human rights Human rights impact assessment procedures to obligations of corporations apply to all regularly update the measures for the pre- companies, banks included. vention of human rights abuses. The integration of human rights issues into the 4.1. «Corporate Responsibility to corporate culture and organization; this requires Respect» the involvement of top level management, The conceptual framework for business and sufficient capacities and training. human rights, presented by the SRSG in 2008, And finally, the performance of human rights- rests on three pillars:19 relevant procedures should be tracked (moni- «The state duty to protect», i.e. the duty of the tored and measured) and the resulting data used 22 state/government to protect people from rights to improve the process. abuses by corporations. All companies are duty-bound to respect human «The corporate responsibility to respect», i.e. rights and should therefore develop due dili- the duty of corporations to respect human rights gence processes relating to human rights: «(T)he and create the necessary structures and pro- responsibility to respect is the baseline ex- cesses. pectation for all companies in all situations. (...) «Access to remedy», i.e. new and improved What is required is due diligence – a process legal and extra-legal mechanisms to help the whereby companies not only ensure compliance victims of human rights abuses claim their with national laws but also to manage the risk rights. of human rights harm with a view to avoiding 23 The corporate responsibility to respect human it.» Next, a look at the special features of the rights exists irrespective of the state and quality banking sector. of public governance. Wherever national 4.3 Project Finance and Equator legislation lags behind the internationally agreed human rights standards corporations are Principles obliged to act on their own to bridge this The SRSG once explicitly mentions banks in governance gap. And according to the UN connection with a project loan: Special Representative this obligation must be «(B)anks do have human rights due diligence clearly separated from a company’s human- requirements in this context, and human rights itarian or charitable engagement: «(B)ecause the risks related to the projects are also risks to the responsibility to respect is a baseline bank’s liability, returns and reputation.»24 The expectation, a company cannot compensate for responsibility of banks involved in project human rights harm by performing good deeds finance is undisputed. For non-recourse project elsewhere.» 20 finance the Equator Principles provide an industry standard. Typically, in this form of 4.2 «Due Diligence» project finance the participating banks cannot Responsible action with regard to human rights fall back on the project sponsors to service their requires corporate due diligence, in the words of loans and their commercial success is closely the Special Representative, a concept that tied to the successful outcome of a specific «describes the steps a company must take to project. become aware of, prevent and address adverse The Equator Principles are not human rights 21 human rights impacts.» standard per se. They are based on the At the very least, the due diligence process

should cover all aspects of the International Bill 22 of Human Rights of the United Nations (the A/HRC/8/5, paras. 60-63, p. 18. A summary of the debate over methods is found in: A/HRC/4/74; and: Universal Declaration of Human Rights and the Aims for Human Rights, Guide to Corporate Human two covenants from 1966) and the ILO core Rights Impact Assessment Tools, 2009.; Re: the labor standards. The SRSG mentions the development of a specific instrument for the finance sector: The Danish Institute for Human Rights, Values Added: The Challenge of Integrating Human Rights 19 A/HRC/8/5, para. 55, p. 17. into the Financial Sector, 2010. 20 23 A/HRC/8/5, para. 55, p. 17. A/HRC/8/5, para. 24/25, p. 9. 21 24 A/HRC/8/5, para. 56, p. 17. A/HRC/11/13, para. 73, p. 18.

10 performance standards of the International also underlined: «The participation of the Finance Corporation, IFC, which do not company need not actually cause the abuse. systematically incorporate human rights.25 But Rather, the company’s assistance or en- the Equator Principles matter here because couragement has to be to a degree that without banks that have signed them recognize the such participation, the abuses most probably necessity of an expanded due diligence for high- would not have occurred to the same extent or risk projects. Despite the prominence of the in the same way.»29 As a rule, finance is the Equator Principles in the debate about the kind of support without which a company could responsibility of banks many questions not continue the practices that cause human regarding their implementation remain rights violations. unanswered in the eyes of civil society.26 Avoiding complicity is an integral part of due In any case, the effect of the Equator Principles diligence.30 The SRSG’s commentary about the will remain limited because they only apply to scope of due diligence also shows that the banks non-recourse project finance. This form of must review the human rights relevance of their finance accounts for less than five percent of all activities. One of three factors to watch, he says, corporate finance. UBS is not even active in is «whether and how the company might project finance and has not signed the Equator contribute to abuse through the relationships Principles. None of the cases described above connected to its activities, such as with business concern project finance but the Swiss banks are partners, entities in the value chain, other non- still involved financially as creditors, through State actors, and state agents.»31 The fact that trade finance and through the issuance of bonds companies, or in our case banks, cannot directly and shares. control the behavior of their business partners does not dispense them from due diligence. 4.4. Responsibility for Indirect That is why due diligence must also include Involvement in Human Rights relationships to third parties: «A company Violations should ensure that it is not implicated in third The UN Special Representative has given party harm to rights through its relationships considerable thought to the responsibility of with such parties. (...) Therefore a company companies for human rights violations by third needs to understand the track records of those parties. For the Berne Declaration and its entities with which it deals in order to assess partner organizations in the BankTrack-Network whether it might contribute to or be associated financial operations belong in this category. A with harm caused by entities with which it full 40 percent of the alleged corporate-related conducts, or is considering conducting business 32 human rights abuses analyzed by the SRSG were or other activities.» cases of indirect involvement and of these 12 The question of indirect benefits derived from percent occurred in the finance sector (i.e. 8 human rights abuses is particularly significant percent of all cases).27 for financial institutions, since any financial He uses the term complicity when he talks profit will be immediately evident for the bank. about indirect involvement in human rights While the SRSG concedes that simply profiting abuses. «(C)omplicity means that a company from human rights abuses does not effect knowingly contributed to another’s abuse of culpability in a strictly legal sense, there is this human rights.»28 Preventing complicity in to consider: «(B)enefiting from abuses may carry human rights abuses is the object of the second negative implications for the company in the 33 principle of the Global Compact. In the public.» commentary the indirect nature of the offense is For the Berne Declaration and her partner organizations in the BankTrack-Network there

25 can be no question that banks must develop For an analysis of the human rights relevance of IFC- human rights-specific due diligence processes Perfomance Standards see: The International Finance Corporation’s Performance Standards and the Equator in order to meet their obligation of respecting Principles: Respecting Human Rights and Remedying human rights. Violations? A Submission to the U.N. Special In finance the degree of involvement and the Representative to the Secretary General on Human Rights and Transnational Corporations and other opportunities for intervention vary greatly Business Enterprises. Bank Information Center, depending on the nature of the business at BankTrack, Center for International Environmental Law, Oxfam , World Resources Institute, 2008. 26 See also: 29 http://www.unglobalcompact.org/AboutTheGC/ http://www.banktrack.org/download/bold_steps_forwar TheTenPrinciples/Principle2.html d_towards_equator_principles_that_deliver_to_people_ 30 and_the_planet/100114_civil_society_call_equator_prin A/HRC/8/16, para. 32, p. 10. 31 ciples.pdf A/HRC/11/13, para. 50, p. 14. 27 32 A/HRC/8/5/Add.2, p. 4 and para. 8 p. 8. A/HRC/8/16, para. 22, p. 7. 28 33 A/HRC/8/16, para. 30, p. 9. A/HRC/8/5, para 78, p. 21.

11 hand. The responsibility of a bank in any one as part of a syndicate? Does the bank play a instance depends on two things: leading role in the syndicate? One is the severity of the human rights A bank’s due diligence policies have to meet violations and the questions are: What rights two basic requirements then: determine for each and how many people were affected? Are we type of business (e.g. trade finance, fixed hearing allegations or confronting substantiated income trading, credit business, IPOs/capital human rights abuses? Is the company directly increase, advising, fund management, private responsible or merely complicit? Are we looking banking) when an in-depth due diligence at isolated incidents or systematic abuse of for human rights needs to be initiated; create the human rights? The other is the nature of the specific capacities required to perform these business transaction: what is the sum involved? and commit sufficient resources to the At what point in time does the bank get process so that the effects of the bank’s activities involved? Is the bank establishing a lasting on human rights can be assessed in all business relationship or conducting an isolated seriousness. (See chapter 6). transaction with a clearly defined end (e.g. an IPO)? Does the bank provide financing alone or

12 5. Human Rights Standards of Banks

In last year’s report to the Human Rights transactions.»37 Rules on treating ‘social risks’ Council the UN Special Representative on are supposedly included in sector guidelines business and human rights stated that few about chemicals, natural gas and oil, energy, businesses credibly implement their general infrastructure, forestry and agrofuels, as well as commitment to human rights: «Company claims mining and the production of metals. Sector that they respect human rights are all well and guidelines are not public. good. But the Special Representative has asked The two banks cannot substantiate their whether companies have systems in place sweeping commitment to human rights because enabling them to demonstrate the claim with their key processes, standards and guidelines any degree of confidence. He has found that are not published. In this way they prevent a relatively few do so.»34 As far as we’re critical assessment and the quality of their concerned he could have been speaking about standards cannot be discussed. Judging from the Switzerland’s two largest banks when he made scant information available to the public, that statement. human rights do not appear to be a major independent category (along with environment 5.1. Human Rights at UBS and Credit and sustainability issues) in their due diligence Suisse processes. Instead, they are cast as mere On its website, Credit Suisse professes its reputational or social risks. This completely allegiance to the Universal Declaration of inverts the focus to where suddenly the process Human Rights and to the Global Compact, but is only about the risks faced by the banks and no gives scant indication of how it intends to longer about the rights of people affected by the implement this commitment in its core activities of bank clients. business. Talking about private clients under A mere update of the environmental impact the heading «spheres of influence», the bank assessment doesn’t do justice to the human simply points to Switzerland’s anti-money rights issue, as the UN Special Representative laundering laws. Regarding the business sector also points out: «(A)n HRIA (human rights that produced the human rights abuses impact assessment) should not be merely an mentioned earlier, CS merely states: «As regards additional section in a ESIA (environmental and corporate clients, which may conduct business social impact assessment), or an ESIA activities that potentially impact human rights, reorganized under different headings. Rather, the bank-wide Reputational Risk Review grounding an impact assessment in the human Process needs to be applied to identify, assess rights framework implies a different approach. and mitigate potential risks related to business HRIAs should deviate from the ESIA approach transactions with such clients.»35 However, very of examining a project’s direct impacts and little information relating to this review process instead force consideration of how the project is made public. At Credit Suisse human rights could possibly interact with each and every 38 issues are generally filed under ‘social right.» questions’ and the tools used by the bank to 5.2. Human Rights Standards of Other assess risks – policies governing transactions with clients that are active in the forestry International Banks industry and in mining are mentioned – are not The finance industry is really just beginning to revealed.36 integrate human rights into its operations, as The 1-page «UBS-Declaration of Human Rights» evidence from a recent study co-financed by the gets by without a single reference to the Swiss Foreign Ministry suggests. There, the International Bill of Human Rights, while the Danish Institute for Human Rights concludes: Global Compact is mentioned in passing. A «Financial sector actors have mixed single generic sentence characterizes the bank’s understandings of the content of human rights business activities: «We aim to promote the and of their responsibility toward them (...) The responsible use of our products and services by majority of financial sector actors have weak in- taking human rights standards into account house capacity to integrate human rights when vetting prospective clients and executing

34 A/HRC/11/13, para. 49, p. 14. 35 37 https://www.credit-suisse.com/citizenship/de/ http://www.ubs.com/1/g/about/corp_responsibility/ banking/human_rights.jsp commitment_strategy/policies_guidelines/human_ 36 https://www.credit-suisse.com/citizenship/de/ rights.html 38 banking/risk_review.jsp A/HRC/4/74, paras. 25-26, p. 6.

13 information into their decision making (...).»39 aware, that we have been associated with Most international banks’ human rights policies human rights violations we shall take steps to are similar to those of Credit Suisse and UBS in remedy the situation, taking account of the their sweeping generality.40 Still, there are interests of those whose rights are being examples of more substantial efforts. The most violated.»42 The termination of business comprehensive document is Rabobank’s relations is explicitly mentioned as a possible «Position Paper Human Rights» that accom- outcome. panies a more general and shorter human rights Along with these two banks, Dutch banks Fortis statement. The Dutch bank’s position paper and ABN AMRO also scored a 2 for human makes explicit references to the Universal rights standards (on a scale from 0 to 5, with 5 at Declaration of Human Rights and the two top) in the BankTrack-Network’s benchmark binding covenants of 1966, the ILO-core labor study «Close the Gap».43 This means their standards and other human rights standards, standards are more than vaguely worded including the ILO-convention 169 about the declarations of intent and include at least half rights of indigenous peoples. Rabobank also the elements that the BankTrack Network elaborates at length about such issues as forced considers essential. labor, child labor, working conditions and the A number of other banks also publish their rights of indigenous people.41 standards. The table below lists issue and sector Barclays, the British bank, also bases its human standards. The latter are designed for industries rights statement on the major human rights where human rights issues are particularly standards. The four principles to which relevant. All listed standards scored at least a 2 Barclays commits include the notion of in the BankTrack-Network’s benchmark study restitution: «Where we discover, or are made «Close the Gap».

Industry/Issue Banks with published standards

Labor ABN AMRO, Barclays, Rabobank

Mining Rabobank

Forestry, pulp and paper ANZ, Bank of America, Citigroup, Goldman Sachs, Morgan Stanley, HSBC, ING Group, JPMorgan Chase, Rabobank, Standard Chartered, WestLB

Indigenous peoples Morgan Stanley, JPMorgan Chase, Rabobank

Agriculture ANZ, Rabobank

Human rights ABN AMRO, Barclays, Fortis Bank, Nederland, Rabobank

Oil and gas Rabobank

Military industry and arms trade Barclays, BBVA, BNP Paribas, Deutsche Bank, Fortis Bank Nederland, ING Group, Intesa Sanpaolo, KBC, Natixis, Rabobank, RBS, Royal Bank of Canada, Standard Chartered, UniCredit Group

39 Danish Institute for Human Rights, Values Added, The Challenge of Integrating Human Rights into the Financial Sector, 2010, p. 4. 40 42 See http://www.banktrack.org/show/focus/ http://group.barclays.com/Sustainability/Citizenship/ banks_and_human_rights under „documents“ for an Human-rights 43 overview. www.banktrack.org/download/close_the_gap/close_the 41 http://www.rabobank.com/content/images/ gap.pdf Position_paper_Human_Rights_tcm43-102014.pdf

14

6. What is Missing: Policy, Standards, Transparency and Implementation

As we have seen, Switzerland’s largest banks It indicates how it intends to measure and Credit Suisse and UBS only skim over the report about the implementation of the policy. human rights issue and look weak compared to 6.2. Systematic Consideration of other major banks. With their current policies they clearly fail their corporate duty to respect Human Rights in Sector Standards human rights. To change this they will need to A general human rights policy merely defines put in place convincing procedures for a human the issue and determines its importance for the rights-relevant due diligence. Unless each and corporate culture. Problems vary depending on every step is transparent and all documents the bank’s activity. For this reason it is very publicly accessible they will never be credible. important that Credit Suisse and UBS develop The following steps are necessary, according to detailed standards for all human rights aspects. the Berne Declaration. For every industry known to generate significant 6.1. A Substantial Human Rights Policy numbers of human rights violations new sector guidelines should be developed or existing «An explicit human rights policy is widely seen standards radically reworked. Industries in this as a necessary starting point for demonstrating group include oil and gas production, mining, corporate commitment to the protection and agro-industry, labor intensive production, promotion of human rights», reads the «CEO armaments and controversial weapons. 44 Briefing» of UNEP FI. The Special Repre- These standards should have an explicit human sentative for business and human rights agrees: rights focus and must avoid addressing «Companies need to adopt a human rights unspecified «social risks» in general terms. At 45 policy.» both banks these sector standards should The human rights policy of Credit Suisse and eventually generate a practice that sys- UBS should meet the following minimal tematically examines potential business 46 standards : opportunities with regard to if and how they It is based on the International Bill of Human might affect the rights of people. If potential Rights (including the Universal Declaration of impacts are perceived as serious and the bank Human Rights, the covenants regarding (1) civil has no way to intervene (e.g. by means of and political rights and (2) economic, social and specific covenants) the business relationship cultural rights), to the core labor standards of should be discontinued or not entered into in the ILO as well as the ILO convention on the first place. indigenous peoples. It demonstrates how the bank intends to respect 6.3. Transparency human rights in every part of its business. When NGOs confront the two large Swiss banks It excludes certain types of transactions with information about their financial support 47 categorically. It conducts no business with for controversial companies, transactions, or very controversial companies, not even on projects, they are usually assured that the 48 behalf of bank clients. business transactions in question are being vetted or have already been vetted for their impact. In response to a query about the 44 UNEP FI, CEO Briefing, Human rights, 2008, p. 7. Phulbari coal mine in Bangladesh, Credit Suisse 45 A/HRC/8/5, para. 60, p. 18. wrote: «Any direct involvement of Credit Suisse 46 For best practice and central elements of a human would have to be thoroughly assessed in our rights policy, see also: internal risk review process, which aims to www.banktrack.org/download/close_the_gap/close_the gap.pdf ensure that business relationships that entail potential risks relating to human rights and the 47 See: BankTrack, Human Rights, Banking Risks; environment are examined in detail and subject Incorporating Human Rights Obligations in Bank to a special authorization process.»49 And UBS Policies, p. 17. 48 wrote: «(A)ny acquisitions of securities by UBS When the Berne Declaration and other NGOs criticised on a proprietary basis would be subject to our the fact that Credit Suisse and UBS held shares in the corporate operator of the planned Phulbari coalmine in Bangladesh, the banks replied that these were business transactions on behalf of clients. This project business relation with the operator on behalf of a third has already had such disastrous effects on human party. 49 rights that responsible banks should not enter into a Letter from Credit Suisse of 16.9.2008.

15 customary due diligence procedures which, will require an effort – in terms of awareness where relevant, would include environmental and responsibility – that involves the entire and social considerations.»50 organization. UNEP FI underlines the impor- Since neither bank makes its sector guidelines tance of senior management in this process: and internal standards accessible to the public, «Senior management – including the CEO – civil society and the public have no alternative review is of particular importance for human but to blindly trust them. Human rights rights given the relative novelty of human rights standards are not sensitive with regard to the as a management issue.»53 Incentives must be success of a business and there is no reason to strategically deployed and the bonus system assume that their publication would put the adjusted accordingly to prevent them from Swiss banks at a competitive disadvantage – no subverting the serious implementation of the more than that it would invite a flood of legal standards. Continuing education and training action. No bank that published its sector for employees is very important as well. Key guidelines was taken to court by investors or employees in all sectors must be made aware of other agents. the significance of human rights issues and the Back in 2003, in the Collevecchio Declaration banks will need enough employees with a supported by more than a hundred organ- thorough knowledge of human rights issues to izations, civil society already clamored for a conduct its due diligence procedures. commitment to transparency: «Financial Insti- To vet business transactions and (potential) tutions (FI’s) must be transparent to stake- clients other information than that supplied by holders, not only through robust, regular and the clients themselves will be necessary, as the standardized disclosure, but also by being following example of a sustainability assess- responsive to needs for specialized ment based mostly on ecological aspects nicely information on FIs’ policies, procedures and illustrates: In July 2009, Credit Suisse and UBS transactions. Commercial confidentiality should joined the French bank BNP Paribas in not be used as an excuse to deny stakeholders organizing a capital increase for the Indonesian information.»51 In Sweden and Norway the palm oil corporation Golden Agri Resources national contact points (NCP) of the OECD- (GAR, part of the Sinar Mas Group).54 guidelines for multinational enterprises, in a Comprehensive reports compiled by NGOs (e.g. statement that accompanied their 2008 com- Greenpeace), with evidence of unsustainable plaint against the Nordea Bank, supported the practices in the sector and by the company, demand for more transparency: «(The NCP were readily available. The banks did not encourages) Nordea and other actors in the contact the authors of the NGO studies and financial sector to practice as much declared the transaction to be unobjectionable. transparency and freedom of information as Around the same time, Unilever decided to stop possible. In order to foster greater buying palm oil from Golden Agri Resources. understanding among the general public for After hiring specialized consultants who their activities, it is essential that companies be examined and ultimately confirmed the charges sensitive to the public’s increasing demands for leveled by Greenpeace, Unilever terminated its information.»52 business relationship with the GAR subsidiary If Credit Suisse and UBS want the public to PT smart.55 Nestlé, too, claims to have stopped believe that they are serious about their respect buying palm oil from Sinar Mas after reviewing for human rights they will not only have to a Greenpeace study (2009) about illegal develop a comprehensive human rights policy deforestation.56 and adequate sectorial due diligence standards In order to fulfill their duty and show their but they will actually have to allow the public respect for human rights, Credit Suisse and UBS to see them. have to make a big effort to hear, listen and take seriously the voices of the people whose human 6.4. Implementation rights have been violated. Policies and Standards are only as good as their implementation. Giving human rights the attention they deserve at Credit Suisse and UBS

50 Letter from UBS of 12.9.2008. 51 http://www.banktrack.org/download/ 53 UNEP FI, CEO Briefing, Human rights, 2008, p. 8. collevecchio_declaration_with_signatories/030401_ 54 collevecchio_declaration_with_signatories.pdf See also: http://www.evb.ch/p25016262.html 52 55 Statement by the Swedish National Contact Point http://www.unilever.com/images/sd_Verificationof (NCP) for the OECD Guidelines for Multinational theGreenpeacereportBurning%20up%20Borneo(2009)_ Enterprises – with the full support of Norway’s NCP – tcm13-196852.pdf 56 in connection with a complaint from the Argentine http://www.nestle.com/MediaCenter/Speeches environmental organisation CEDHA against Nordea. AndStatements/AllSpeechesAndStatements/statement

http://oecdwatch.org/cases/Case_123 _Palm_oil.htm

16 7. Conclusion

The discussion about the human rights obligations of banks has only just started. UNEP-FI is encouraging banks to actively participate in the debate: «Work with clients, stakeholders and others in the finance industry to develop a clearer understanding of the human rights responsibilities of the sector (...) to develop tools such as human rights impact assessments and to develop a human rights reporting framework for the financial sector as a whole.»57 With the publication of this paper and our ongoing work, the Berne Declaration hopes to advance the debate on this important issue. Along with our partner organizations in the BankTrack Network we will continue to use our campaigns, our research and our lobbying to make human rights a part of everyday banking.

57 UNEP FI, CEO Briefing, Human rights, 2008, p. 9

17 Appendix 1: Examples of Human Rights and Related Cases of Reported Violations Listed below are concrete cases of alleged human rights violations, embedded in the context of the two core agreements of the international framework for the protection of human rights (ICCPR and ICESCR). To compile this list, we investigated controversial projects involving clients of Credit Suisse or UBS. Without drawing any final conclusions on the merits of what seem to be credible allegations we have analytically divided the reported grievances into their component aspects and associated them with specific human rights. Methodically we tried to stay close to the example of similar investigations conducted by the office of the UN High Commissioner on Human Rights and the UN Special Representative for Business and Human Rights, Professor John Ruggie.1 Since controversial projects often affect several human rights, individual aspects may be listed under more than one right. The main focus of these case studies is on illustrating the relevance of certain rights for the banks involved. We do not claim that the individual projects have been exhaustively assessed; any one project may well touch on other rights not discussed here. The most important sources of information for each aspect are listed in the footnotes at the bottom of the page.

Link between Bank and Covenant and Human Right Link between Company2 Country Industry Company Involved Article and Cases of Reported Violations Company and Case Credit UBS Suisse ICCPR (Civil Right to Life Covenant) Art. 6 Cluster Bombs So far 25 Controver‐ Lockheed Martin, Some of the most strong strong Cluster bombs kill even after the war is over. 98% of the countries, sial arms Textron. L‐3 important producers more than 100'000 victims are civilians.3 including Communications, of cluster bombs or Afghanistan, Alliant Techsystems, components Kosovo, Poongsan Lebanon, Iraq Porgera Gold Mine Papua New Mining Barrick Gold 95% share through very strong very Private security units and police defend the mine against Guinea subsidiaries strong independent gold prospectors. Injuries and even fatalities occur on a regular basis (according to Barrick: 8 killed, none since Barrick acquired majority share in 2006; according to local NGOs: at least 22, at least 2 since 2006).4

1 See also: OHCHR et al. (2008), Human Rights Translated - A Business Reference Guide. S. XV-XVI; as well as: SRSG John Ruggie (2008). Corporations and human rights: a survey of the scope and patterns of alleged corporate-related human rights abuse (A/HRC/8/5/Add.2), notably pp. 2 - 8. 2 For details see finance research for BD: Profundo (2010), Swiss banks and human rights. Rating according to p. iv: "none or weak" no financial relations with Credit Suisse/UBS in 2004 - 2009 or only minimal stockholdings; "medium": 1 -2 financial relationships (regardless of the type of relationship); "strong": 3-4 financial relationships ; "very strong" ≥ 5 financial relationships. 3 Handicap International (2006), Fatal Footprint: The Global Human Impact of Cluster Munitions; Netwerk Vlaanderen et al. (2009), Worldwide Investments in Cluster Munitions Producers. A Shared Responsibility . 4 "Submission to the Standing Committee on Foreign Affairs and International Development", Barrick Gold Corporation, 26.11.2009, p. 8; Mr. Tyler Giannini (Harvard Law School) before the Standing Committee on Foreign Affairs and International Development (FAAE)", Canadian Parliament, 20.10.2009; Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston (2008), p. 308; "Deadlist" of Atange Akali Association ATA (ca. 2008); "Canadian Firm Admits to Killings at PNG Gold Mine", IPS, 18.11.2005; Gespräch mit Mining Policy Institute, Januar 2010. Marlin Gold Mine Guatemala Mining Goldcorp 100% subsidiary none or medium Several people are killed in the conflict around the mine. In weak 2005, a demonstrator and a mine opponent are killed, the latter by a mine worker. In 2008, another mine opponent is killed, and in 2009 the son of a prominent activist is murdered. Others, including a priest, receive threats.5 ICCPR Art. 8 Ban on slavery, servitude, and forced labor Cotton Trade Uzbekistan Cotton Cargill, Daewoo Some of the most very strong7 none or During cotton harvest public service employees and students Trade International, Ecom important buyers of weak of all ages (including children) are forced to work in the Agroindustrial, Olam cotton fields.6 International, Paul Reinhart Infrastructure for US‐Troops Iraq Oil & Gas Halliburton KBR is subsidiary of medium very KBR provides logistics (food, construction) for US‐troops in (core Halliburton until April strong Iraq. Workers are often recruited through subcontractors in business of 2007 (100% before, Nepal, Pakistan and the Philippines. In the process, modern the group) 80% after November forms of slavery occur: Bonded labor and human trafficking 2006) involving false/deceptive information concerning the job destination.8 ICCPR Art. 9 Right to Security of the Person Grasberg Gold, Silver and Copper Mine Indonesia Mining Freeport‐McMoRan 91% share of operator none or very The mine plays a crucial role in the conflict between the PT Freeport Indonesia weak strong army and the independence fighters. Freeport pays the army, which is responsible for many human rights violations. Sometimes Freeport even pays individual units or soldiers directly for security services rendered.9 Porgera Gold Mine Papua‐New Mining Barrick Gold 95% share through very strong very Barrick cooperates closely with the police and provides Guinea subsidiary strong housing and fuel. In spring 2009, Barrick benefited from a

5 Complaint to the Canadian OECD Contactpoint, FREDEMI/CIEL, 9.12.2009, p. 12; MiningWatch Canada; "Guatemalan murders put Canadian company in frame", Mines and Communities, 30.9.2009; "Guatemalan opponent of mining assassinated", Mines and Communities, 8.8.2008; Urgent Action (AMR 34/016/2005), 5.4.2005, Amnesty International; "Two Killed So Far Protesting Glamis Gold in Guatemala" , 12.8.2005. 6 International Crisis Group (2005), The Curse of Cotton: Central Asia’s Destructive Monoculture; U.S. Department of State (2009), Human Rights Report: Uzbekistan. 7 The relationships to the buyers of cotton are medium, with the exeption of Cargill (very strong). According the International Crisis Group (2005) Credit Suisse provides foreign buyers of Uzbek cotton with credits to pre-finance the trade, therefore Credit Suisse is rated "very strong". 8 "Civil action No. 09-cv-1237: Memorandum and order", US District Court Southern District, 3.11.2009; "Memorandum for all contractors", 19.4.2006, US-Army, " Blood, Sweat & Tears: Asia’s Poor Build U.S. Bases in Iraq", David Phinney, CorpWatch, 3.10.2005; "Tribune investigation: Pipeline to peril", Chicago Tribune, Oktober 2005; "Underclass of Workers Created in Iraq", Washington Post, 1.7.2004. 9 "Radicalisation and Dialogue in Papua", International Crisis Group, 11.3.2010; "Police abuse goes unchecked in Indonesia", Amnesty International, 13.12.2009; "Doubts emerge over Papua killings", BBC, 14.7.2009; "Papuans in Merauke Face Abuses by Indonesian Special Forces", Human Rights Watch, 24.6.2009; "US mining giant still paying Indonesia military", AFP, 22.3.2009; "Below a Mountain of Wealth, a River of Waste", New York Times, 27.12.2005; "Paying for Protection", Global Witness, Juli 2005. brutal police operation in the immediate vicinity of the mine.10 Infrastructure for US‐Troops Iraq Oil & Gas Halliburton KBR is subsidiary of medium very KBR faces several lawsuits for not offering sufficient (core Halliburton until April strong protection from or even abetting sexual violence against business of 2007 (100% before, female employees. Jamie Leigh Jones was gang raped and the group) 80% after November received no help. Instead, her boss locked her in a container 2006) for three days.11 Utkal Alumina Bauxite Mine India Mining Hindalco Industries 100% subsidiary none or medium In the Indian state of Orissa, industry projects are often weak brutally enforced by the police. On one such occasion, a protest against the Utkal Mine in 2000, three people were shot dead. NorskHydro and Tata withdrew from the project, Alcan followed suit in 2007. Hindalco, however, is continuing the project.12 Dumping Petro‐Chemical Waste Norway Oil & Gas Trafigura Trafigura, client and strong none or Even after the scandal in Côte d'Ivoire Trafigura continues to producer of the waste weak turn a highly sulfurous refinery byproduct into gasoline but in question, initiated the resulting wastes are illegally brought to Norway now. In the deal with Vest May 2007, improper handling by Vest Tank causes a storage Tank. The Norwegian tank to explode, resulting in one of Norway’s largest company says it never chemical accidents. If fire hadn’t broken out, a lethal sulfur knew how dangerous cloud might have formed and caused far more human were the wastes it damage.13 agreed to store. ICCPR Art. 14 Right to a Fair Trial Infrastructure for US‐Troops Iraq Oil & Gas Halliburton KBR is subsidiary of H. medium very The legal status of KBR in Iraq was extremely vague. (core until April 2007 (100% strong According to the small print in their labor contract KBR business of before, 80% after employees who became victims of sexual violence were not the group) November 2006) allowed seek redress in a regular court but had to submit to the company’s private arbitration process. Congress finally intervened and changed this practice in 2009 whereupon

10 See footnote 4 and 25 11 "Limbo for U.S. Women Reporting Iraq Assaults", New York Times, 13.2.2008; Press Release Congressman John Coyners, Committee on the Judiciary, 19.12.2007. 12 "Hindalco projects face fund blues", Business Standard, 16.2.2009; "Blood and bauxite: Impoverished Indians fight Alcan's bid to open a mine in their backyard", Mines and Communities, 15.11.2003; "Utkal Bauxite & Alumina Project: Human Rights and Environmental Impacts", Robert A. Goodland (former World Bank's Environmental Advisor), 19.5.2007. 13 "Trafigura and The Minton Report", Norwegian Television NRK, 13.10.2009; "Vest Tank sweetened coker gasoline", NRK, 24.6.2008; "Dirty Cargo", Documentary NRK; "Minton-Report", wikileaks.org, 14.9.2006. KRB dropped its appeal, allowing the high profile case of Jamie Leigh Jones to proceed to court now.14 ICCPR Art. 26 Right to Equal Treatment Before the Law Cortez Hills Gold Mine USA Mining Barrick Gold Company’s own very strong very The Western Shoshone have been fighting for over a century project strong to get their tribal lands back. The Inter‐American Human Rights commission IACHR concluded in 2002, that a procedure used to determine land rights violated the Western Shoshone’s right to equal treatment before the law. Barrick Gold benefits massively from the current situation and pays practically nothing for the privilege of mining gold from 5 mines on lands that the Western Shoshone claim are theirs by right and tradition.15 ICCPR Art. 27 Right of Minorities to Preserve Their Identity Marlin Gold Mine Guatemala Mining Goldcorp 100% subsidiary none or medium Goldcorp says it owns the land, but the indigenous weak population rejects that claim. The company never tried to obtain free, prior, and informed consent (FPIC). Several communities voted against the mine in a number of referendums.16 Oil and Gas Fields (Block) 39, 104, 123, 124 Peru, Ecuador Oil & Gas ConocoPhillips (2006 45‐100% share very strong very The exploitation of oil and gas reserves on indigenous acquisition of depending on the strong territory in Northern Peru is proceeding without consent Burlington Resources) block (FPIC) and is threatening a number of previously voluntary isolated communities in the Amazon rainforest. Acquired by ConocoPhillips in 2006, Burlington Resources negotiated fraudulently with indigenous people in Ecuador and was involved in acts of violence.17 Ranger and Jabiluka Uranium Mines Australia Mining Energy Resources of Company’s own none or medium Energy Resources of Australia operates two uranium mines Australia project, 68.4% of ERA weak on aborigine territory. The local Mirrar community was belongs to Rio Tinto

14 "KBR on Trial--At Last", The Nation, 29.3.2010; "Rape case to force US defence firms into the open", The Guardian, 15.10.2009. 15 "Early warning and Urgent Action Procedure: Decision 1(68)", UN CERD, 10.5.2006; " Dirty Metals: Mining, Communities and the Environment ", Oxfam/ Earthworks 2004; "Western Shoshone" p. 23, Amnesty International USA; "Report No 75/02 * CASE 11.140 Mary and Carrie Dann", Inter-Amerikanische Menschenrechtskomission IACHR, 27.12.2002. 16 Complaint to the Canadian OECD Contact Point, FREDEMI/CIEL, 9.12.2009, p. 7-9. 17 "ConocoPhillips in the Peruvian Amazon", Amazon Watch, 13.5.2009; "Chevron (CVX) in the Amazon – Oil Rights or Human Rights? Texaco's legacy, Chevron's responsibility", Amnesty International USA. ignored and then pressured to give its permission. To this day, the Mirrar are fighting to close mine.18 Cortez Hills Gold Mine USA Mining Barrick Gold Company’s own very strong very The expansion of the Cortez‐Mine (Cortez Hills) threatens project strong Mount Tenabo, a holy mountain of the Western Shoshone.19 Project Utkal Alumina Bauxite Mine Mining Hindalco Industries 100% subsidiary none or medium The indigenous Adivasi people have been fighting this mine weak project for years. They fear large scale displacement, loss of land, and water shortage.20 ICESCR (Social Right to Just and Favorable Working Conditions Covenant) Art. 7 Samancor Manganese Manganese Smelter South Africa Mining BHP Billiton 60% BHP Billiton 40% very strong very Smoke and dust cause manganism, a serious injury to the AngloAmerican strong central nervous system. Hundreds of workers were affected. But instead of receiving medical assistance many were laid off. Samancor still refuses to settle with the victims.21 Pasta de Conchos Coal Mine Mexico Mining Grupo México 75.1% share of medium none or Poor mine safety, a bad ventilation system, and a holding company SCC weak management that ignored workers’ well‐founded concerns caused a deadly mine disaster in the Pasta de Conchos‐Mine, in which 65 people died.22 ICESCR Art. 8 Right to Form Trade Unions and Right to Strike El Cerrejon Coal Mine Colombia Mining BHP Billiton 33% share (33% Anglo very strong very Some 6 000 Cerrejon workers work for subcontractors that American, 33% strong fight the efforts of workers to form trade unions (e.g. the Xstrata) transport company and the truck maintenance company). 23 Pasta de Conchos and Cananea Mines Mexico Mining Grupo México 75.1% share of medium none or The company is trying to eliminate the current miners and holding company SCC weak metal workers union in the hopes of setting up a more management friendly organization.24

18 "Aborigines count cost of mine", BBC, 25.4.2004; "Regulating the Ranger, Jabiluka, Beverley and Honeymoon uranium mines", Environment, Communications, Information Technology and the Arts Reference Committee - The Senate, Oktober 2003; Website der The Gundjeihmi Aboriginal Corporation, mirrar.net; "Rio Tinto Threaten Aboriginal Homeland", 13.6.2001, Friends of the Earth. 19 "Western Shoshone return to court, citing violations by Barrick Gold ", Mines and Communities, 5.2.2010; "Opinion No. 09-15230", Ninth Circuit Court of Appeals, 3.12.2009. 20 See footnote 12 21 "Vergiftet und vergessen", solidarität - Magazin des Schweizerischen Arbeiterhilfswerks SAH, Mai 2007, S. 4-5; "Poisoned Spaces: Manufacturing wealth, producing poverty", groundWork (Friends of the Earth South Africa), Oktober 2006; E-mail von Ighsaan Schroeder, Khanya College, 1.4.2010. 22 "Trade Unions Ask Norwegian Pension Funds to Divest of Grupo Mexico Shares", ICEM, 17.3.2010; Disaster Strikes in Mexico (2006) IMF. 23 "Union, Contract Workers Continue Fight for Work Rights at Cerrejón in Colombia", International Federation of Chemical, Energy, Mine and General Workers' Unions - ICEM, 11.1.2010; "Arbeitskonflikte wegen der Organisation der Temporärbeiter bei Carbones del Cerrejon", Arbeitsgruppe Schweiz Kolumbien, 6.12.2009. ICESCR Art. 11 Right to Adequate Housing (Component of the Right to an Adequate Standard of Living) Porgera Gold Mine Papua‐New Mining Barrick Gold 95% share through very strong very The police burn down at least 130 houses in the Wuangima Guinea subsidiary strong settlement close to the mine and chase the population out. Barrick does not intervene in a resolute manner and even provides the police with accommodations and fuel.25 Utkal Alumina Bauxite Mine India Mining Hindalco Industries 100% subsidiary – medium If the project materializes, anywhere from 3 500 (operator’s estimate) to 60 000 people (NGO estimate), mostly Adivasis, may have to resettle somewhere else.26 Belo Monte Dam Brazil Mining Alcoa Would like to be part strong strong NGO experts fear 20 000 people will be forcibly displaced of a construction and resettled. The indigenous population living upriver from consortium; sees dam the dam are not officially recognized as affected by the as key to new smelter project.27 Tenke Fungurume Cobalt and Copper Mine DR Congo Mining Freeport‐McMoRan 58% participation in none or very Freeport‐McMoRan like to showcase the mine as a model operator TFM weak strong project, but when the village Mulumbu was resettled in 2007 most of the new homes the company had promised, had not yet been built. Some 226 families were forced to live under plastic tarps.28 ICESCR Art. 11 Right to Adequate Food (Component of the Right to an Adequate Standard of Living) Agrofuels Countries in Large scale Sinar Mas, São very very The use of grains for agrofuels is an important reason for the Asia, Africa, agriculture Martinho, Cosan, strong30 strong 30 recent explosion in the price of several important food crops and Latin Agrenco such as corn. In countries of Asia, Africa and Latin America America people are being driven from their land to make room for agrofuel monocultures.29

24 "Mexican Miners’ Strike Enters Second Year" (2008), In These Times; Annual review of violated union rights (2008), ITUC CSI IGB. "Complaints against the Government of Mexico presented by the IMF and the SNTMMSRM: Report No. 350, Case(s) No(s). 2478" , International Labour Organization ILO. 25 "Undermining Rights: Forced Evictions and Police Brutality around the Porgera Gold Mine", Amnesty International, 2.2.2010; "Barrick and Porgera Joint Venture Statement on Amnesty International Report", Barrick Gold, 2.2.2010. "Backgrounder: Issues Related to Barrick’s Porgera Joint Venture Mine in Papua New Guinea", MiningWatch Canada, Mai 2009; "Whitemen, the Ipili, and the City of Gold", Jerry K. Jacka, Ethnohistory 2007 54(3):445-472. 26 "Utkal Bauxite & Alumina Project: Human Rights and Environmental Impacts", Robert A. Goodland (former World Bank's Environmental Advisor), 19.5.2007, p. 5. 27 "Belo Monte cleared to start", PFI Reuters, 11.3.2010, "Interessada em Belo Monte,Alcoa festeja chance de participar do leilão", O Globo, 5.11.2009; "Experts Panel Assesses Belo Monte Dam Viability", International River Network, WWF and other NGOs, October 2009; talk with Amigos da Terra Januar 2010; "Dams in the Amazon: Belo Monte and BrazilÕs Hydroelectric Development of the Xingu River Basin", staatliches Amazonasforschungsinstitut INPA, 7.5.2006. 28 "Soul mining: The EIB’s role in the Tenke-Fungurume Mine, DRC", Counter Balance, 30.9.2008, p. 14-15; "Risky Business", IPIS, Swedwatch, Diakonia, 19.2.2008, p. 34-35. 29 Jean Ziegler (2008), Report of the Special Rapporteur on the right to food (A/HRC/7/5); Olivier De Schutter (2006) Report of the Special Rapporteur on the right to food (A/HRC/12/31); "Monoculture and Human Rights" (2009), FIAN. ICESCR Art. 11, Right to Water (based on the Right to an Adequate Standard of Living and the Right to Health) 12 Porgera Gold Mine Papua‐New Mining Barrick Gold 95% share through very strong very Dumping mine waste with high heavy metal content into the Guinea subsidiary strong river led to high levels of pollution.31 Coal Mine (Kalimantan) Indonesia Mining Adaro Energy Company’s own medium medium In 2009, overflow from one of the mine’s waste ponds project polluted the river Balangan. In 1996, the mine had already caused serious river pollution when a waste pond broke.32 San Martin Gold Mine Honduras Mining Goldcorp Subsidiary none or medium The local population complains about health problems and weak dying cattle and suspects water pollution caused by the mine. CAFOD, the aid organization of the Catholic Church of England alleges cyanide and arsenic pollution as well as acid mine drainage (a phenomenon involving rocks from the deep that surface for the first time and cause a chemical reaction that produces sulfuric acid). 33 Grasberg Gold, Silver, and Copper Mine Indonesia Mining Freeport‐McMoRan 91%‐share of operator none or very Grasberg, one of the world’s largest mines, still dumps its PT Freeport Indonesia weak strong heavy metal enriched mine wastes directly into the river, causing high levels of water pollution..34 Marlin Gold Mine Guatemala Mining Goldcorp 100% subsidiary none or medium A full waste pond represents a potential pollution risk. The weak mine’s enormous water use contrasts with the scant water resources of the local population.35 Pascua‐Lama Silver and Gold Mine Chile, Mining Barrick Gold executed by two very strong very Environmental organizations and the indigenous population Argentina subsidiaries strong agree that this gold mine project threatens the glacier system in the border region. In 2009, Barrick received the go‐ahead from the Chilean government but at the start of 2010, the national water commission concluded that Barrick

30 Here, in addition to our own research we used a Profundo study for Friends of the Earth: European financing of agrofuel production in Latin America (2008). 31 "Barrick Gold: Recommendation", Council of Ethics - The Norwegian Government Pension Fund - Global, 14.8.2008. 32 "Pollution at Adaro under Investigation", Indonesian Mining Association, 10.11.2009; "River in South Kalimantan Polluted due to Broken Waste Pond of PT Adaro", tempointeractive, 27.10.2009; Michael S. Hamilton (2005). Mining environmental policy: comparing Indonesia and the USA, Surrey: Ashgate, p. 209. 33 "Gold giant faces Honduras inquiry into alleged heavy metal pollution", The Guardian, 31.12.2009. "San Martin mine in the Siria Valley, Honduras - the issues", CAFOD, 29.4.2009. 34 "Bank Secrets", Netwerk Vlaanderen, BankTrack, Dezember 2007, p. 17-18. "US-run mine warned by Indonesia", BBC, 23.3.2006 35 Complaint to the Canadian OECD Contactpoint, FREDEMI/CIEL, 9.12.2009, p. 10-11. had already violated glacier protection rules. The Inter‐ American Human Rights Commission IACHR has also decided to hear a complaint of the indigenous population against the licensing procedure.36 ICESCR Art. 12 Right to Health Dumping Petro‐Chemical Waste Ivory Coast Oil & Gas Trafigura Trafigura was both the strong none or In August 2006, Trafigura dumps highly sulfurous wastes in client and the weak Côte d'Ivoire. The waste ends up in open dumps and causes producer of the a health emergency that leaves 15 people dead and ten waste. thousands injured. Although it was obvious that the wastes would not be properly disposed of, the toxic wastes were brought there to keep costs low.37 Ranger Uranium Mine Australia Mining Energy Resources of Company’s own none or medium The Ranger uranium mine in the middle of Kakadu National Australia project, 68.4% of ERA weak Park has seen its share of leaks and other incidents. In 2004, belongs to Rio Tinto process water containing uranium was mistakenly hooked up to the drinking water supply. There are indications for an increased incidence of cancer among the local population.38

36 "Government Study: Chilean Gold Mine Threatens Local Glaciers", The Santiago Times, 7.1.2010; "REPORT No. 141/09", Inter-amerikanische Menschenrechtskommission IACHR, 30.12.2009; "Chile: Pascua-Lama mine gets final approval", The Santiago Times, 29.9.2009. "Pascua Lama", Greenpeace Chile. 37 Report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, Okechukwu Ibeanu (2009), A/HRC/12/26/Add.2; "Complaint concerning failure to prosecute for an offence", Greenpeace, 16.9.2009; "BBC Defence Paper", wikileaks.org, 11.9.2009. "Vest Tank sweetened coker gasoline", Norwegian Television NRK, 24.6.2008; "Dirty Cargo", Documentary NRK; "Minton-Report", wikileaks.org, 14.9.2006; Ausschnitt aus Trafigura-internem E-Mail-Verkehr zwischen Dezember 2005 - September 2006, wikileaks.org. 38 "Uranium mine 'expanding by stealth': greens", The Age, 20.5.2009; "Australia miner pleads guilty", BBC, 6.5.2005.