Making a Killing Holding corporations to account for land and human rights violations Making a Killing: Holding corporations to account for land and human rights violations is published by Trócaire as part of its programme of Policy, Research and Advocacy

Acknowledgements:

A sincere thank you to all Trócaire partners and human rights defenders who shared their experiences, insights and analysis for this report. Trócaire would like to thank the external and internal reviewers for their valuable inputs on the paper.

FRONT COVER: Women from San Pedro Ayampuc & San Jose del Golfo, La Puya, resisting the El Tambor gold mine. Photo: Daniele Volpe. Making a Killing: Holding corporations to account for land and human rights violations | 1

contents page

Foreword 03

Executive Summary 04

Chapters

1. Why a focus on corporate accountability? 07

2. Communities at the frontline 13

3. Corporations: the accountability challenge 29

4. The way forward: legislative and policy opportunities 35

5. Recommendations: action on accountability 45 2 | Making a Killing: Holding corporations to account for land and human rights violations list of Acronyms

CEDAW Convention on the Elimination of all Forms of Discrimination Against Women CESCR UN Committee on Economic and Social and Cultural Rights CETIM Europe-Third World Centre CFS Committee on World Food Security CIDSE Coopération Internationals Pour le Développement et la Solidarité CRC UN Committee on the Rights of the Child CSW Commission on the Status of Women ENNHRI European Network of National Human Rights Institutions FAO Food and Agriculture Organization of the UN FCCC Framework Convention on Climate Change HRC Human Rights Council HRDD Human Rights Due Diligence IACHR Inter-American Commission on Human Rights IBFAN-GIFA Geneva Infant Feeding Association ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IEA International Energy Agency ILC International Land Coalition ILO International Labour Organisation IPCC The Intergovernmental Panel on Climate Change IPRA Indigenous Peoples’ Rights Act ISDS Investor-State Dispute Settlement NCP National Contact Point OECD Organisation for Economic Co-operation and Development OEIGWG Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights OHCHR Office of the United Nations High Commissioner for Human Rights OPDHA Permanent Observatory for Human Rights in the Aguán RAI Committee on World Food Security Principles for Responsible Investment in Agriculture and Food Systems UN United Nations UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme UNDPI United Nations Department of Public Information UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNEP United Nations Environment Programme UNESC United Nations Economic and Social Council UNGA United Nations General Assembly UNSG United Nations Secretary-General VGGT The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security Making a Killing: Holding corporations to account for land and human rights violations | 3 the foreword In the Polochic Valley region of Guatemala, nine-year-old María and her family live each day in fear of the bulldozers returning to demolish their homes.

They are one of hundreds of families in this region The growing levels of violence stand in stark under threat from the growth of large industrial contrast to the lack of global accountability. It is now farms, set up to feed the growing global demand time to act. for palm oil and sugarcane. Having already lost their homes once, María’s family live an uncertain life, This report marks the start of a new Trócaire constantly at risk of losing everything all over again. campaign calling for a legally binding global treaty governing business and human rights. We believe Their story is far from unique. The corporate race this is urgently needed to protect the world’s for natural resources has put millions of people poorest people and ensure their rights are not around the world at risk of exploitation and abuse. discarded in the hunt for profits. We believe that Jobs and economic growth allow communities to lift Ireland, north and south, can play a positive role themselves out of poverty. However, the absence of by supporting calls for a legally binding UN treaty a comprehensive global legal framework on business to ensure economic activity is consistent with and human rights has allowed many businesses to upholding people’s human rights. exploit communities – stealing land, polluting rivers and inflicting brutal violence on those who question This report argues that devastating human rights them. violations will continue to occur with impunity unless we move beyond voluntary approaches and The legal human rights framework governing bring in a legally binding treaty on business and businesses has not kept pace with the modern human rights. economy. Today, we live in a globalised world, where business knows no border. Countries, particularly in the global south, compete for investment from companies often richer and more powerful than they are. The world’s top 10 corporations have a combined revenue equivalent to more than the 180 ‘poorest’ countries GDP.

The global rush for natural resources and large scale land acquisition that has marked the past two decades, has impacted the world’s poorest people, who are at the front lines of the decisions made by political elites and large businesses. Impunity for human rights violations by a toxic nexus of political leaders and private corporations is not new, indeed, over 20 years ago Trócaire campaigned for the protection of the rights of the Ogoni people in Nigeria in the face of environmental and human rights abuses by Shell. However, violence against land, environment and indigneous defenders, who resist Caoimhe de Barra large corporations is on the rise. CEO,Trócaire 4 | Making a Killing: Holding corporations to account for land and human rights violations executive summary

The 21st century economy is dominated by large transnational corporations.

The 21st century economy is most dangerous for defenders.2 environment, loss of livelihoods dominated by large transnational Since 2015, more than 1,400 and deepening poverty. Fifteen corporations. These companies attacks on activists working on million people are forced to operate across borders and human rights issues related to leave their homes every year for are often wealthier and more business have been documented.3 large development and business powerful than the states In 2018, 321 human rights projects.7 Resource extraction competing to host them. Across defenders were murdered, 77 is a major contributor to climate the developing world, their use of per cent of whom were working change, which not only threatens natural resources can negatively on land, indigenous peoples and our ability to achieve sustainable impact communities. Despite environmental rights. 4 Judicial development but it also infringes this, there is no legally binding harassment and criminalisation upon a vast array of internationally instrument to regulate the actions are commonly used to silence and recognised human rights. Over of transnational corporations. suppress opposition to business 70% of total CO2 emissions are The global human rights legal developments. Those who are linked to just 100 major fossil fuel framework has not kept pace with trying to resist businesses are companies.8 the modern globalised economy. labelled as terrorists, criminals, and anti-development. Women The corporations involved in these The current framework is human rights defenders are actions are rarely held to account largely voluntary in nature. targeted through threats of sexual and often victims are left without This means it is ineffective at violence and smear campaigns. access to remedy. Corporations preventing abuses of human wield major economic and political rights by corporations. The vast Land acquisition and power, often aligning with the majority of these violations go displacement interests of states or powerful unpunished. The size, influence political decision-makers, resulting and complexity of corporations These defenders are trying to in a lack of regulation in order pose major challenges for states protect their communities from to keep and attract investment. to hold them to account. Impunity the impacts of large scale land Victims can find it difficult to regarding human rights abuses by acquisition, which has dramatically access remedy in the host state companies is increasing.1 increased since the early 2000s. (where the violation occurred) Over 49 million hectares of and in the corporation’s home Attacks on human rights communal or smallholder land state. This includes the difficulty defenders has been acquired for commercial of holding a parent company use by transnational entities since accountable for actions of a Communities seeking to protect 2000 – approximately seven times subsidiary and legal obstacles their human rights from the the size of Ireland.5 Investors from used to defeat extraterritorial actions of corporations face high-income European countries claims. Corporations avoid liability growing levels of violence account for almost one third of when their subsidiaries are and intimidation. States and such deals, which are primarily involved in human rights abuses. corporations often combine to focused in African countries. 6 These companies can then be supress communities who oppose Indigenous communities often bought over or wound up. As large-scale developments on their face the human rights impacts of long as corporations are able lands. Growing numbers of human this resource acquisition, often to avoid accountability they can rights defenders are risking their imposed on communities without keep operating at the expense lives. Companies engaged in consent. Trócaire partners have of human rights. It becomes a land-consuming industries, such reported violent evictions of never-ending cycle. It means as mining, agribusiness, energy people from their lands, pollution that victims don’t get access to and dam construction, are the of land, destruction of the remedy or reparations for human Making a Killing: Holding corporations to account for land and human rights violations | 5

“In pursuit of this humanizing enterprise, we should be aware that business- related human rights abuses are much like other human rights abuses: it is the impact of the actions of the relatively powerful on the relatively powerless that we seek to address.” Kate Gilmore, United Nations Deputy High Commissioner for Human Rights 9

rights violations. It also guarantees IRELAND SHOULD: Strengthen civil society space: that there will be future victims – because corporations that abuse Strengthen corporate Support and respond to human rights are not held to accountability: alerts by international civil account. society networks and speak Support a UN binding treaty out against government Ireland’s role on business and human rights actions which seek to to regulate the activities of constrain legitimate civil This gap in accountability requires transnational corporations and society activities. an urgent global response. Ireland other business enterprises. This has a strong track record in treaty should include provisions Continue to advocate for an promoting human rights globally to ensure the prevention enabling civil society space and has a role to play to promote of human rights violations, in all countries, at the Human global accountability, particularly access to justice, the primacy Rights Council and in other in issues that impact so deeply of human rights over trade international fora. on human rights defenders and investment agreements, and civil society space. Ireland protection of human rights Protect human rights defenders: should also ensure that Irish defenders, inclusion of a companies are not complicit in gender perspective and strong Explicitly recognise the human rights violations, either enforcement mechanisms. legitimacy of human rights directly or indirectly through defenders and publicly support business relationships. This Adopt mandatory human and acknowledge their work, would require human rights due rights due diligence to ensure with a particular focus on the diligence which is not being businesses respect human participation of women human undertaken systematically across rights across their activities and rights defenders. Irish corporations. Mandatory supply chain. human rights due diligence would Take immediate, appropriate address this and create a level Implement an effective Irish and effective action in relation playing field for all businesses. National Plan on Business and to specific attacks on human Human Rights that includes a rights defenders – for example Ultimately, a binding UN treaty is comprehensive gender analysis. through public statements, needed to provide legally binding diplomatic channels, and human rights standards that will Strengthen resource rights of support for local organisations apply across states. Ireland has communities: working to protect human not yet played a proactive role in rights defenders. supporting the development of Provide support through such a treaty. We call on Ireland the Irish Aid programme Once devolution is restored in to support calls for a binding for strengthening land and Northern Ireland, we call on the treaty on business and human other natural resource rights, Executive and Assembly to adopt rights and to play a constructive particularly for women and a National Action Plan on Business role in its development. A legally indigenous communities. and Human Rights, to encourage binding treaty can build a culture UK support for a UN binding treaty of respect for human rights by all Ensure Irish investors and on business and human rights corporate entities and allow for corporations respect land and take immediate, appropriate the application of the UN guiding and other natural resource and effective action in relation to principles. rights through their business specific attacks on human rights operations. defenders. 6 | Making a Killing: Holding corporations to account for land and human rights violations

Community members from San Pedro Ayampuc & San Jose del Golfo, La Puya, peacefully protesting against the El Tambor gold mine. Photo: Daniele Volpe. Making a Killing: Holding corporations to account for land and human rights violations | 7 Why a focus on corporate accountability? “Enforceable international agreements are urgently needed, since local authorities are not always capable of effective intervention. Relations between states must be respectful of each other’s sovereignty, but must also lay down mutually agreed means of averting regional disasters which would eventually affect everyone. Global regulatory norms are needed to impose obligations and prevent unacceptable actions, for example, when powerful companies or countries dump contaminated waste or offshore polluting industries in other countries.” Pope Francis, Laudato Si’: On Care for Our Common Home 10

Nearly 25 years after the murder land, rivers and forests are under of Nigerian activist Ken Saro-Wiwa threat from polluting industries, drew widespread international deforestation and hydro-electric condemnation, serious human projects. Women, who have rights violations perpetrated by less secure rights to land, are businesses continue in some of particularly vulnerable to land the most vulnerable communities grabs, eviction and dispossession in the world. Since 2015, the to make way for large scale Business & Human Rights development projects, such as Resource Centre have tracked extractives or agricultural industry more than 1,400 attacks on projects.12 activists working on human rights issues related to business, with The impacts upon land arising over 500 attacks related to land from the global response to rights.11 Trócaire works primarily climate change will also continue with people living in rural areas, to exert pressure on land and for whom natural resources human rights. The global response such as land, water and forests to the climate crisis must be are essential to their livelihood. urgently accelerated if we are The growing number of attacks to avoid further exacerbation of on communities and individuals poverty, hunger, disease, conflict who are defending their right and displacement. However, the Women, who have less to resources is therefore at the rapid and far reaching changes that heart of the types of injustice that are required in mitigating climate secure rights to land, are Trócaire seeks to challenge. change, such as the essential particularly vulnerable to move to 100% renewable energy, Transnational corporations, pose significant additional risks land grabs, eviction and investors, and private individuals for communities unless there dispossession to make are acquiring large areas of is effective governance and land, particularly in developing mandatory human rights due way for large scale countries, to extract profitable diligence throughout the transition development projects, resources — including commodity to low carbon societies. For crops, timber, minerals, and example, there is evidence such as extractives or fossil fuels, at the expense of that some renewable energies agricultural industry livelihoods, human rights and infrastructure and mega projects the environment. Communal have further contributed to the projects. resources, particularly those of land and natural resource grab. indigenous peoples, such as 8 | Making a Killing: Holding corporations to account for land and human rights violations

Trócaire partners - many of whom work with communities on the frontlines of resource extraction, The current legal framework has not kept pace with have reported violent evictions of the proliferation of large and powerful corporations populations, lack of respect for indigenous land rights, pollution in a globalised economy. Given the vast power of land, destruction of the of corporations and the complex ways in which environment, loss of livelihoods, gender based violence, attacks, they can operate to evade accountability, existing and even killings of human rights international instruments relating to business and defenders, by businesses and complicit governments. However, human rights are not adequate to hold corporations the corporations involved in these to account. actions are rarely held to account and often victims are left without access to remedy. political power, sometimes (where the violation occurred) The current legal framework with revenues larger than for reasons such as lack has not kept pace with the the states that are tasked of due process or political proliferation of large and powerful with regulating them. States interference, and can also face corporations in a globalised may be unwilling or unable barriers to accessing remedy in economy. Given the vast power to regulate their behaviour the home state. of corporations and the complex for fear of losing investment, Remedy in home state: there ways in which they can operate while some states perpetrate are particular difficulties in to evade accountability, existing human rights abuses in order obtaining remedy for human international instruments relating to keep or attract investment.13 to business and human rights are rights violations in home not adequate to hold corporations Remedy in host state: victims states, including the difficulty to account. of human rights violations of holding a parent company by transnational corporations accountable for actions of Power: many corporations can find it difficult to access a subsidiary, difficulties in wield huge economic and remedy in the host state building a claim when trying

The Sustainable to “foster a dynamic and well- involving the business sector are Development Goals and functioning business sector, based on respect for human rights. while protecting labour rights business and human rights and environmental and health They state that for business, the Human rights are essential standards in accordance with most powerful contribution to to achieving the Sustainable international standards and sustainable development is to Development Goals (SDGs). The agreements and other ongoing embed respect for human rights 2030 Agenda for Sustainable related initiatives, such as the across their value chains. They Development is explicitly Guiding Principles on Business also note that business strategies grounded in the UN Charter, the and Human Rights…”.14 to contribute to the SDGs are no Universal Declaration of Human substitute for human rights due Rights, international human rights The UN Working Group on diligence. They recommend that and labour rights treaties, which Business and Human Rights the increased role of business in sets out a framework for poverty have produced a set of development must be coupled eradication and sustainable recommendations to governments with adequate accountability and development. The 2030 Agenda and businesses on the business that individuals and communities emphasizes that the business and human rights dimension who face adverse business- sector is a key partner for the of sustainable development.15 related human rights impacts United Nations and governments The working group note that must have access to effective in achieving the SDGs. Paragraph much work remains to be done remedy, including in the context 67 of the 2030 Agenda calls on to translate the SDGs into of business operations undertaken “all businesses to apply their action in a manner consistent in the name of sustainable creativity and innovation to with international human rights development.16 solving sustainable development standards and this includes challenges” and commits states ensuring that partnership activities Making a Killing: Holding corporations to account for land and human rights violations | 9

to access information and Special Rappportuer on the Rights leaving victims without recourse evidence in different countries, of Indigenous Peoples “such to justice. and legal obstacles that can be impunity should be prevented used to defeat extraterritorial at all costs and the need for a Pressure is building towards more claims.17 The example of Shell stronger instrument to address legally binding measures to hold in Ogoniland shows how a this cannot be overemphasized businesses to account. The French parent company can escape enough.”18 Duty of Vigilance law provides liability and victims can be left an important example of how without access to remedy. While there has been some national legislation can be used progress in the emergence of to ensure businesses take the In addition, under bilateral human rights guidance and necessary steps to ensure respect investment treaties and in instruments to regulate the for human rights.20 Pressure certain international trade conduct of business, there is a is also forming at international treaties that include investor- severe legal imbalance between level. In June 2014, a ground- state dispute settlement, a the protection afforded to breaking resolution was adopted company can argue that new businesses globally, potentially by the Human Rights Council that laws or regulations could at the expense of the human established an Inter-Governmental adversely affect the expected rights of citizens, and the lack Working Group to elaborate profits or potential investment, of legally binding measures to a legally binding instrument and seek compensation in hold them to account for human to regulate the activities of a binding settlement. These rights violations. While some transnational corporations and mechanisms exert a cooling treaty bodies are increasingly other business enterprises in effect on governments raising issues of business and international human rights law (UN enacting policies that human rights, there has been Treaty). The development of a UN may strengthen corporate a reticence by states to meet Treaty on business and human accountability, ultimately extra-territorial obligations. The UN rights has potential to address weakening human rights Guiding Principles on Business the accountability gap at a global protections. and Human Rights (UNGPs) level by clearly asserting legally provide guidance to states and binding obligations in the area of The above factors act as businesses on how to meet business and human rights. As obstacles to the development obligations and responsibilities, the Deputy High Commissioner and implementation of regulatory but lack the legally binding force for Human Rights states, this “is frameworks to prevent human needed for implementation of our opportunity to take a bold step rights abuses and for access this guidance.19 The substantive forward for protection of human to remedy for violations that legal reforms needed, such as rights in the context of business occur. These issues combined, removal of jurisdictional barriers activities, and, most importantly, result in a global governance and allowing for parent company for strengthened accountability gap that enables corporations liability for actions of a subsidiary, and more effective remedy for who violate human rights to act have not been implemented in the those who are the victims of with impunity. As stated by the absence of binding regulations, business-related activities.”21

UN Guiding Principles on Human Rights Due UN Treaty on Business and Business and Human Rights Diligence Human Rights The UN Guiding Principles on Human rights due diligence is In June 2014, the Human Rights Business and Human Rights process that a company should Council established an open- (UNGPs) provide guidance for to follow in order to identify, ended intergovernmental working the ways in which states and prevent, mitigate and account group (OEIGWG) on transnational businesses should operate to for how it addresses its adverse corporations and other business enhance standards and practices human rights impacts. It includes enterprises with respect to human with regard to business and assessing actual and potential rights, to elaborate a legally human rights. The “Protect, human rights impacts; integrating binding instrument to regulate Respect and Remedy” framework and acting on findings; tracking the activities of transnational outlines: the state duty to protect, responses; and communicating corporations and other business respect and fulfil human rights; about how impacts are addressed. enterprises in international human the corporate responsibility to Business should conduct human rights law. 23 The fifth session in respect human rights; and the rights due diligence along October 2019 will focus on an need for more effective access to their supply chain and in their official first draft of the legally remedies. procurement activities.22 binding instrument. 10 | Making a Killing: Holding corporations to account for land and human rights violations

Trócaire full page ad in the Irish Times, 4 November 1995. Making a Killing: Holding corporations to account for land and human rights violations | 11

Drawing on our experiences to act, we argue that legally It is widely acknowledged that of working with communities binding measures are needed the UN Guiding Principles and across the world, and in particular to address the current gaps in the UN Treaty can be and should drawing on cases in Central accountability and to ensure be mutually reinforcing and America, East Africa, the Middle corporations respect human complementary.25 In the face of East and Myanmar, this paper rights. We recognise that a multi- continuing violations, whereby examines the impact of powerful pronged approach will be needed victims have little access to corporations on communities’ to address corporate human remedy and corporations continue access to and control of land and rights violations. Treaty bodies to act with impunity all of these natural resources and human should continue to strenghten measures are important. However, rights. Corporations can and do their articulation of the rights the UN Treaty is the crucial piece play an important and productive enshrined in existing conventions that is needed to put an end to role in job creation and providing vis-à-vis business enterprises the impunity that leaves victims economic opportunities. However, and states should meet their so powerless. Voluntary initiatives this paper also highlights how the human rights obligations. cannot be relied upon in order lack of an adequate legislative The UNGPs, recognised as a to hold corporations to account. framework means that the most globally agreed framework which We also cannot rely on individual powerful actors can act with outlines the duties of states and states to take action, while others impunity at the expense of some business enterprises, should be lag behind. The issues at stake of the most vulnerable. implemented.24 In an Irish context, are global and demand a global the implementation of the National response.26 A culture of respect Based on this paper’s review Action Plan on Business and for human rights by all corporate of the scale of human rights Human Rights will be an important entities can be established by violations perpetrated by step in this regard, along with building on a strong global legal corporations and the impunity moves towards mandatory human framework. with which they are enabled rights due diligence.

Supporting the struggle for Ogoni rights

Trócaire has a long history in the leaders and ran a full page ad that people in the Niger Delta calling out the injustices caused in the Irish newspapers entitled had been exposed to widespread by transnational corporations in “Ken Saro-Wiwa’s only crime and severe oil contamination countries where we work. In the was to campaign for his people. for decades. It found that in early 1990s the human rights Now the Nigerian military regime one community families are abuses that Shell was imposing wants to kill him for it,” and noting drinking water from a well that on the Ogoni people in Nigeria that “37 years after Shell had is contaminated with benzene (a became a priority campaign for begun drilling for oil in the area, known carcinogen) at levels over the organisation. Between the 400 square miles of Ogoniland 900 times above World Health 1960s and the 1990s an estimated were dotted with oil spills, Organization guidelines.28 $30 billion had been extracted contaminated water and gas from Ogoniland, yet the people flames.” In 1995 Ken Saro-Wiwa In April 2018 a British court ruled who lived here were among and his colleagues were hanged, that Nigerian communities in the poorest in Nigeria, with no causing international shock and the Niger Delta could not sue running water and no electricity. outrage. Trócaire noted that they Shell for serious pollution caused The company had also caused were killed because they had by its Nigerian subsidiary, Shell major environmental damage dared to protest peacefully against Petroleum Development Company in the area, prompting the the damage that Shell had caused and that Shell N.V. is not liable for formation of the Movement for to their land. After these killings pollution caused by its subsidiary. the Survival of the Ogoni People. Shell continued to rely on the The victims can expect little from After being arrested many times, military to stifle opposition and the Nigerian legal system where the Nobel Peace Prize nominee, to terrorise communities, while complex cases such as these can Ken Saro-Wiwa, was arrested they produced billions in profits, at last as long as 20 years. Even after with 8 other colleagues and the expense of the Ogoni people. many years of drawn-out court sentenced to death in a trial that Trócaire called for accountability proceedings, acknowledgement was condemned by international and justice for those affected.27 A and compensation for the victims observers. Trócaire called on the 2011 report by the United Nations has not been forthcoming. 29 Nigerian government to release Environment Programme found 12 | Making a Killing: Holding corporations to account for land and human rights violations

Bertha Zuniga Cáceres (28) stands beside a mural of her mother, murdered human rights activist, Berta Cáceres. Berta is the general coordinator of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH). Photo: Garry Walsh. Making a Killing: Holding corporations to account for land and human rights violations | 13 Communities at the frontline “Indigenous peoples and other local communities continue to suffer disproportionately the negative impact of corporate activities, while community leaders and activists suffer a true escalation of violence on the hands of government forces and private security companies.” Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples 30

People need access to and including land and property control over natural resources, deprivation by kin or state.31 in particular land and water, in Land reform programmes order to realise a wide range often target the household, or of rights, such as the right to assign ownership to the “head health, the right to an adequate of household” most frequently standard of living and the right to defined as a man.32 Globally, more food. Working with communities men than women own land. Data to ensure they have the right to from 10 African countries shows access and manage water and that only 12% of agricultural land land resources is therefore one is owned by women, compared of the four goals of Trócaire’s to 31% by men.33 Thus, women strategic plan. However, for many account for the majority of the of the communities that Trócaire world’s hungry; largely as a works with, and in particular for result of discrimination in access women and indigenous people, to, and control over, productive the rights to access, use and resources, such as land, water and control of natural resources are credit.34 Women, and particularly precarious and vulnerable to indigenous and ethnic minority exploitation. women, are more vulnerable to displacement and dispossession Women face multiple barriers in in the context of large-scale land accessing and benefiting from acquisition by private companies natural resources, including as they are more likely to lack inadequate legal standards security of tenure. and implementation of laws, discriminatory social norms and Women’s land rights are included attitudes in relation to their roles, in the core human rights and exclusion from participation documents including the Universal in decision-making. Women are Deceleration on Human Rights, more affected by land tenure the International Covenant on insecurity due to direct and Economic, Social and Cultural indirect discriminatory laws Rights, International Covenant on and practices at the national, Civil and Political Rights and the community and family level, Convention for the Elimination 14 | Making a Killing: Holding corporations to account for land and human rights violations

of All Forms of Discrimination ownership of land and equal they have legal title) and to stop Against Women. The Voluntary access to land. 36 illegal mining exploitation and the Guidelines on the Responsible logging of their forest. Companies Governance of Tenure of Land, Indigenous people also have were granted illegal licences by Fisheries and Forests in the particularly insecure tenure and the state to exploit the wood of Context of National Food Security have suffered historic injustices of the Tolupanes people. The Broad (VGGT) and the Committee on colonisation and dispossession.37 Movement for Justice and Dignity World Food Security Principles It is estimated that as much as (MADJ), a Trócaire partner working for Responsible Investment in 65% of the world’s land is held with the Tolupanes people has Agriculture and Food Systems through customary or community- noted that the community has (RAI) also articulate the based tenure systems. However, been torn apart by killings of those importance of gender equality in national governments only who have peacefully resisted land and resource rights.35 Most recognize formal, legal rights of corporations, with more than recently, the Declaration on the indigenous peoples and local 100 leaders murdered in the last Rights of Peasants and Other communities to a fraction of 20 years. Martín Fernandez who People Working in Rural Areas, these lands.38 Weak security of works with MADJ says, “This adopted in 2018, also recognises tenure places communities at motivates you to seek justice, that peasant women and other greater risk of being displaced due despite the great risk involved, rural women play a significant to large-scale land acquisitions. because their communities role in the economic survival of For example, for many years the have been neglected, and these their families, including through indigenous Tolupanes of Honduras remarkable, brave people have informal and unpaid work, but have had to fight to remain on died to defend their land and their are often denied tenure and their ancestral territories (of which rights.”39

CASE STUDY: San Rafael Las FLores, Guatemala

granted, without consulting local communities, and Minera “The Xinka People have historically been made San Rafael (subsidiary of invisible by the Guatemalan State. Today, we are not Tahoe Resources) entered into operations in 2014. This surprised that a foreign company like Tahoe is using resulted in major resistance the same discriminatory mechanisms to negate from communities in the area, including the establishment of our existence in the area to protect its investment. an encampment to prevent mine This is history repeating itself with the same goal traffic from reaching the site. 1000s of people living in the as always: to displace our communities. Who are region have voted against the they to decide who I am and violate my right to self- mine and further expansion plans, with numerous plebiscites and determination? That is my right,” peaceful marches held.2

Criminalisation and attacks Moisés Divas, Xinka community member and Coordinator Members of the Xinca parliament, of the Diocesan Committee in Defense of Nature a representative structure of 1 (CODIDENA) the Xinca people, feel that they are being persecuted by the The area of San Rafael Las Flores Tahoe Resources Inc. in 2010 and Government and the Government in Guatemala, approximately 40km then bought by Pan American is “always on the side of the from Guatemala City, is populated Silver Corp. in 2019. business”. They have identified by the Xinca people. This is also criminalisation, intimidation, the location of the Escobal mine, Leaders of the Xinca community attacks, a lack of consultation the world’s third largest gold mine. oppose the mine due to worries and the lack of transparent Originally owned by the Canadian it will harm their ancestral information from the company as company, Goldcorp, it was bought land and water resources. The major concerns.3 Opponents of by another Canadian company exploration licence was illegally the mine have been criminalised, Making a Killing: Holding corporations to account for land and human rights violations | 15

Both the UN Declaration on the and use which is the basis for Rights of Indigenous Peoples establishing indigenous peoples’ “This motivates and the ILO Convention No. 169 land rights, and not the eventual you to seek justice, enshrine a series of fundamental official recognition or registration principles to determine the scope of that ownership.”40 In cases despite the great risk of indigenous peoples’ rights where states retain ownership involved, because their to lands, territories, and natural over mineral and sub-surface resources. The UN Declaration on resources, Convention No. 169 communities have been the Rights of Indigenous Peoples (article 15.2) stipulates that neglected, and these asserts that states should respect indigenous peoples have rights the principle of free, prior and regarding consultation and remarkable, brave informed consent of indigenous participation in the benefits of people have died to peoples, whose territorial rights resource exploitation, as well extend beyond the land that they as compensation for damages defend their land and directly inhabit and/or cultivate resulting from such exploitation.41 their rights.” to the broader environment, including natural resources, rivers, lakes and coasts. Indigenous peoples have rights to the lands, territories, and resources that they have traditionally occupied, owned, or used, meaning that it is “the traditional occupation

with over 100 legal cases being to advance against a Canadian ordered the Ministry of Energy brought against them. They company for alleged human rights and Mines (MEM) to carry out are being stigmatised and in violations committed abroad. In an immediate consultation of the some cases called “terrorists” the judgment, the Court of Appeal local indigenous population in line in order to discredit their work.4 overturned a lower court decision with ILO 169. 10 239 Xinka women have been that had found Guatemala was the criminalised between 2012 and more appropriate venue for the Tahoe Resources was 2017 for engaging in the peaceful case. The Court of Appeal ruled subsequently bought by Canada’s resistance.5 A number of people that several factors, including Pan American Silver for a who were in opposition to the evidence of systemic corruption reported $1.07 billion in cash and mine have been killed. Laura in the Guatemalan judiciary, stock.11 It was also reported that Leonor Vásquez Pineda was one pointed away from Guatemala as a “Tahoe shareholders will receive of the leaders of the Committee preferable forum, thereby keeping contingent consideration in the for the Defence of Life and the case in British Columbia. The form of contingent value rights Peace, and was murdered in court concluded that “there is (“CVRs”), that will be exchanged 2 0 1 7. 6 Telésforo Odilio Pivaral some measurable risk that the for 0.0497 Pan American shares González, another member of the appellants will encounter difficulty for each Tahoe share, currently Committee for the Defence of Life in receiving a fair trial against a valued at US$221 million, and and Peace was murdered in 2015.7 powerful international company payable upon first commercial Exaltación Marcos Ucelo was an whose mining interests in shipment of concentrate following indigenous Xinca leader and was Guatemala align with the political restart of operations at the killed in 2013.8 interests of the Guatemalan Escobal mine (the “Contingent state.”9 Purchase Price”).”12 The extent In April 2013, six farmers and a to which local communities are student claimed that they were Lack of consultation impacted by the actions of large “shot at close range by Tahoe Initially the State denied the very multinational corporations seeking security personnel during a existence of the Xinca population profit is exemplified in the case peaceful protest on the public in San Rafael Las Flores. However, of the Escobal mine. As human road outside of the gates of the following a legal petition, in rights defenders face intimidation, Escobal mine.” This is now the 2017, the Constitutional Court of attacks and lose their lives for focus of a civil lawsuit in Canada Guatemala ordered the temporary defending their communities, and the ruling represents the first suspension of the license for corporations continue to operate time that a Canadian appellate exploration and exploitation of to seek maximum profit for their court has permitted a lawsuit the San Rafael mine. The court shareholders. 16 | Making a Killing: Holding corporations to account for land and human rights violations

Trócaire’s approach to supporting people living in poverty to exercise their right to access and control natural resources

Building on experience over and threats to resource rights. Trócaire’s takes two key 40 years of working with We support civil society to approaches: communities, Trócaire’s approach test and document best is to support interventions at practice models in relation Securing rights: Awareness multiple levels: to community, particularly raising of customary and other women’s, natural resource rights to natural resources and At individual level: we ownership and control, in order how to secure or protect these support rural women and men, to challenge social norms and rights (for example, through and excluded groups, to have structures that enable and mapping and documenting knowledge, skills and capacity perpetuate resource rights natural resources, seeking formal to claim their resource rights, violations recognitions/titles as appropriate to have timely knowledge of and advocacy for laws, policies key threats to these, and the At institutional level: we and institutional practices that support to mobilise to secure, seek to increase the capability, protect customary and communal formalise, and take action to opportunity and motivation of rights – with a focus on women’s defend their natural resource duty-bearers at local, national access and inheritance practices). rights and international levels to: take action to recognise Defending rights: Awareness At community level: we and protect the natural raising of risks such as extractive support communities to resource rights of rural and industries or mega projects that mobilise to secure and defend indigenous communities, impact on communal resources their natural resource rights, particularly women; to protect including eviction, displacement and to seek access to justice communities and human or pollution, and support to when violations occur rights defenders working to using laws and other alternative defend these rights; and to mechanisms to mitigate these At civil society level: we ensure respect for international threats (for example, free, support a strong, diverse and law and policy coherence, in prior and informed consent representative civil society to order to support an enabling (FPIC), environmental impact work collectively to monitor environment for natural assessments, legal action, and speak out on key barriers resource rights compensation, negotiation processes and mediation).

Reducing conflict risks associated with the extractives industry in Turkana South and East, Kenya

In 2012 Tullow Oil PLC discovered negative economic, social, cultural The ongoing and growing conflict oil in Turkana, in Northern Kenya, and environmental impacts upon in the county is driven by a and is currently transporting crude residents, especially given that scarcity of natural resources, oil by road to Mombasa, with the the livelihoods of the majority of particularly livestock, pasture and aim of transporting 80,000 barrels indigenous Turkana communities water, compounded by successive of oil per day upon completion of depend upon community lands and increasingly regular droughts an export pipeline from Turkana to to carry out traditional forms of largely as a result of the effects of Lamu.42 migratory pastoralism or agro- climate change. 44 pastoralism. In particular, there Since the discovery of oil in were concerns that it could Many of the concerns raised have Turkana country in Kenya, by precipitate an increase in existing already been realised to some Tullow Oil PLC, there have been violent conflict between and degree. The planned construction significant concerns, partially within communities in the county. of a large oil field in Turkana South based on similar experiences in Turkana is an arid region and is the and East has now given rise to other developing countries, that poorest in Kenya, with 59.9% of serious concerns within the local while representing a promise of the population living in extreme population in relation to their increased financial resources in poverty according to the most rights to own, control and benefit the county, the development of recent World Poverty Clock. 43 from the use of land, water and the oil and gas industry could have other natural resources, upon Making a Killing: Holding corporations to account for land and human rights violations | 17

which their livelihoods and culture depend.

In 2017, Trócaire worked in partnership with six local partners based in Turkana to deliver a multi- dimensional programme designed to address the risks of conflict in the county. It focused on working with women and youth in three areas: (i) conflict mitigation: supporting community members to manage conflicts emerging in their locality peacefully and positively; (ii) public participation: supporting community members to participate meaningfully in decision-making processes affecting their lives; and (iii) natural resource rights: supporting community members to claim their rights to land and natural resources, including their right to free, prior and informed consent.

Programme findings indicated that while the legislative and policy framework has developed in Kenya, including the Community Land Act (2016), Environmental Management and Coordination Act (2015) and Petroleum (Exploration, Production & Development) Bill, the operationalisation of such legislation is inadequate.

Key elements to ensuring Esther Chegem and her son in Central Turkana, Kenya. Photo: Aidan O’Neill. resource rights in Turkana were identified as: addressing concerns in relation to the The case of fossil fuel extraction in implementation of legal and particular raises the fundamental In 2017, Trócaire worked policy frameworks; ensuring free, issue evident in the majority prior and informed consent for of countries, developed and in partnership with six new developments; access to developing alike, around local partners based information; public participation; consistency of government energy sharing of oil resources; and economic development policy in Turkana to deliver means of land compensation; with their obligations under the a multi-dimensional implementation of environmental Paris Agreement on Climate regulations, in particular relating Change, and the impacts on the programme designed to disposal of hazardous waste; type of investment and activity to address the risks of and transparency in leasing of that is enabled, encouraged and land to investors. These issues regulated. The opening up of new conflict in the county. will continue to be the focus fossil fuel reserves anywhere in of a Trócaire project in Turkana the world now pose serious risks which will promote human to planetary stability given the rights by working with affected evidence that the vast majority of communities and other key known fossil fuel reserves cannot stakeholders to ensure the be exploited if the temperatures realisation of their land, resource limits that are central to the Paris and environmental rights. Agreement are to be respected. 18 | Making a Killing: Holding corporations to account for land and human rights violations

The global rush for resources “Conflicts around labour rights, land grabbing or the exploitation of natural resources are doomed to worsen if there is no reassessment of economic and development models that deprive entire communities of their fundamental rights.” Michel Forst, UN Special Rapporteur on the Situation of Human Rights Defenders 45

Land reforms of the 1990s, to have slowed, on-the-ground for 42% of all deals and 10 reinforced by the World Bank impacts arising from the boom million hectares. The top five led structural adjustment may still be growing as more of investor countries are Malaysia, conditions, provided market- the deals arising from that period the USA, the UK, Singapore and friendly conditions for foreign are reaching the implementation Saudi Arabia. Investors from large-scale acquistion of land, stage.48 high-income European countries as indebted governments were are involved in 31.4% of all such required to free up land as a This wave of investments has deals which makes this region the commodity.46 From the mid- been associated with significant biggest investor region.50 Private 2000s a global commodity boom impacts on land. The Land Matrix companies and stock-exchange for food, minerals, and energy, has documented over 1,500 listed companies constitute 70% underpinned a wave of land use concluded transnational deals of all deals. Investment funds investments in particular in the since 2000, which cover over 49 and governments play a relatively agriculture, mining and petrolum million hectares of land.49 The small role as secondary investors sectors in low and middle income latest stocktake of Land Matrix in large-scale land acquisitions, countries. Investment in metals data shows that the large majority but are involved through indirect exploration is estimated to have of deals related to agriculture, engagement such as the increased ten-fold between 2002 with 1,004 concluded large-scale financing of stock exchange-listed and 2012, and investment in fossil agricultural land acquisitions companies and pension funds.51 fuels is estimated to have doubled covering 26.7 million hectares over the same period.47 While under contract. Africa is the most The state plays a key role in land the commodity boom appears significant target area, accounting deals by creating a narrative about

CASE STUDY: Polochic Valley, Guatemala

forces accompanied by officials ‘There were many many police, army and security from the Attorney General’s office. contractors at the eviction. I begged them not to In most cases families were burn my house and crops but they went ahead. They given less than one hour’s notice to leave, before being could have killed us but we ran away.’ violently evicted by military and riot police. Their houses were burned, along with their remaining José Cuc Cuz (45) is from the community of Parana and possessions. After 22 weeks living this is how he described the night the community was on the roadside with no support, forced to flee their home.1 community members from Paraná moved back to their land. They Access to ancestral land has been Bank for Economic Integration. were attacked in the middle of the denied to Q’echi communities After the economic collapse of the night by state police and private in the Polochic Valley for sugarcane mill the communities contractors. Two people were centuries, most recently due to settled in the fertile part of injured, an old man and a young the accelerated expansion of oil the valley.2 In March 2011, 769 girl who were shot. palm monocultures in 1998 and families from fourteen Q’eqchi sugarcane in 2005 which was communities were evicted from The Inter-American Human Rights financed by the Central America the valley by private security Commission documented acts of Making a Killing: Holding corporations to account for land and human rights violations | 19

why these deals are necessary; Palm. Allegations were made to and by identifying “marginal” the World Bank that the Dinant and “available” land, including Corporation (who received $15 Communities evicted or through reclassifying land; million in loans from the World coerced from their land expropriating land; and through Bank), conducted, facilitated or (re)allocation or dispossession supported forced evictions in the often have little recourse processes, which can be legal or area. Communities were terrorised to justice, pushing them illegal.52 Communal, customary and it is alleged that the Dinant and indigenous land is particularly Corporation hired paramilitary into poverty. vulnerable to being identified as death squads and private available and often developments assassins to murder those that are initiated without free, prior resisted.54 It is estimated that up as a source for drinking, domestic and informed consent. “Every to 130 people were killed between use and for irrigation. The polluted year 15 million people are forced 2008 and 2013, and a government water has allegedly caused health to leave their homes and land to unit set up to investigate the problems and damaged the quality make way for large development deaths during the conflict has only of soil for farming. Villagers have and business projects, such as processed one case to date.55 reported that in rainy seasons, the the construction of hydroelectric water turns dark-red or blackish dams, mines and oil and gas Human rights issues also and greasy, and in dry seasons, installations, or luxury resorts for arise when the actions of the water turns bright-orange with tourism.”53 corporations result in pollution strong smells. The mining has also and environmental degradation, led to large amounts of sediment Communities evicted or coerced resulting in loss of livelihoods in the river and flooding increases from their land often have little for entire communities. Since during the rainy season. A four- recourse to justice, pushing 2008, communities living near year battle with MPCL went all them into poverty. For example, the Heinda mine, operated by the the way to the Myanmar Supreme in the Aguán Valley in Honduras, Thai company Myanmar Pongpipat Court. However, in February 2018 hundreds of families were coerced Company Limited (MPCL), have their legal case was dismissed into selling, or were evicted and reported that it has contaminated due to procedural issues. The dispossessed of their land to allow the Myaung Pyo river in Myanmar. community have not received any for the expansion of industrial- The surrounding communities rely compensation for damages to their scale plantations of African on agriculture and use this water land and water.

violence against the communities, which reportedly led to the deaths of two individuals. In June 2011, the Inter-American Commission for Human Rights ordered the Guatemalan state to protect the rights of the 769 families, to provide humanitarian assistance including food and housing, and to find a long-term solution for land access for the evicted families.3 So far the government has largely failed to implement these measures and families live in constant fear of forced eviction.

Trócaire is supporting this community and others through our partner organisation in supporting our community. I really José and his wife Adele, with their children, believe that without the support Edgar, Walter, Jessica and Maria, their a number of ways including daughter in law Flavia, and grandson Joel. negotiating with local and central we have received many of us Photo: Manuel Morillo. government to obtain land or would be in prison today. We have land title for the families. “It is been motivated to continue the really important that Trócaire is struggle,” said José. 20 | Making a Killing: Holding corporations to account for land and human rights violations

While the boom in investments Clean Development Mechanism the plantations that are at the appear to have slowed across (CDM)57 under the Kyoto Protocol centre of evictions and killings – these sectors as a result of demonstrates how instruments as referenced above.59 The scale the more recent commodity and policies to incentivise and of decarbonisation that will be slump, global population growth, facilitate private sector investment required to meet the temperature rising incomes and changing in delivering climate action can limit goals set out in the Paris consumption patterns are result in negative human rights Climate Accord will require a expected to increase demand outcomes when human rights range of approaches and initiatives for commodities in the longer and human rights accountability that, without effective governance, term.56 The impacts upon land are not embedded in corporate will have profound consequences and land-use arising from the practice.58 For example a CDM for communities. Pressures upon global response to climate project was approved in the Aguán communities depending on their change will also continue to exert Valley for a project that optimises natural resources is therefore pressure on land and human the wastewater treatment likely to continue to grow. rights. Experiences with the system of the palm oil mill from

Climate Change – a double The Paris Agreement is the first help deliver development and edged threat climate change treaty to explicitly climate change goals does not acknowledge the need for free them of this responsibility, According to the human rights to be embedded in rather it requires them to ensure Intergovernmental Panel on climate action, “Parties should, an institutionalised human rights Climate Change (IPCC), the slow when taking action to address safeguards system at national and and inadequate response of the climate change, respect, promote international levels. international community to the and consider their respective climate crisis means that what is obligations on human rights, One of the main authors of the now required to prevent breaching the right to health, the rights IPCC’s recent Special Report the temperature limits set out in of indigenous peoples, local on warming of 1.5 °C highlights the Paris Agreement is a transition communities, migrants, children, that “the next few years are of unprecedented scale over the persons with disabilities and probably the most important next decade.60 people in vulnerable situations and in our history.”64 Without the right to development, as well systematic application of human The poorest and most as gender equality, empowerment rights safeguards, including marginalised people in the world of women and intergenerational corporate accountability, the are disproportionately impacted equity.”63 urgently needed increase in by climate change and they climate action coupled with are also the most vulnerable Governments hold ultimate the significant emphasis being to unintended consequences responsibility for ensuring placed on the role of the private arising from decarbonisation. In the decarbonisation process sector in delivering the transition, their most recent report, ‘Global is managed in a way that is presents a significant threat to Warming of 1.5°C’, 61 the IPCC conducive rather than regressive communities living in poverty, assessed the compatibility of to the realisation of human rights. exacerbating the direct impacts various decarbonisation pathways The increased emphasis placed of climate change, of which they with delivery of the Sustainable by governments in recent years already disproportionately bear the Development Goals. They found on mobilising private finance to burden. that the scale of the transition required poses profound challenges for sustainable management of multiple demands Without systematic application of human rights on land, including for human safeguards, including corporate accountability, the settlements, food, livestock feed, fibre, bioenergy, carbon storage, urgently needed increase in climate action coupled biodiversity and other ecosystem with the significant emphasis being placed on the services. The IPCC point out that, without effective governance, role of the private sector in delivering the transition, many approaches needed to stay presents a significant threat to communities living in within the 1.5°C limit can result in negative trade-offs.62 poverty Making a Killing: Holding corporations to account for land and human rights violations | 21

Deteriorating political context: restrictions on civil society space

“People and civil society groups often risk their lives to improve the lives of others. They speak out even when knowing they could be silenced forever… They protect our rights. They deserve their rights.” Former UN Secretary-General Ban Ki-moon65 “…business enterprises already have significant influence over States and ensure that regulations, policies and investment agreements are framed in a way that promotes the profitability of their business, often to the detriment of human rights. Concomitant to this is the growing trend among States to adopt legislation curtailing the activities of civil society organizations.” Michel Forst, UN Special Rapporteur on the Situation of Human Rights Defenders 66

The rush for resources has been In July 2017, the number of national security, public morals, happening at the same time as states in which action had been defamation, protection of national a deterioration in the political taken to restrict the activities sovereignty) and can include context for negotiating resource of civil society reached a record arbitrary scrutiny of management disputes. Restrictive NGO 106, which is more than half and internal governance, threats laws, administrative burdens the number of states who of, or actual, de-registration, and funding restrictions are are members of the United forced office closures, search and increasingly common and in Nations.67 These can include seizures of property, exorbitant particular targeted at NGOs that arbitrary measures under the fines, spurious prosecutions, engage in human rights work and guise of legality (e.g. anti-money arbitrary arrests and detentions critical advocacy. laundering, anti-terrorism, and bans on travel.68

Women from San Pedro Ayampuc & San Jose del Golfo, La Puya, resisting the El Tambor gold mine. The community members are peacefully protesting and surrounded by police. Photo: Daniele Volpe. 22 | Making a Killing: Holding corporations to account for land and human rights violations

The UN Special Rapporteur on members of civil society are natural resources and effective the Situation of Human Rights monitoring rights implementation, remedy. 70 Defenders notes concerns when they are claiming rights about the negative impacts of and informing how human The violations of human rights business interests on civil society rights should be realised in local associated with illegal settlements including the over-regulation of contexts. are pervasive and devastating, non-governmental organisations, thus the generation of profits limitations on advocacy, and Corporations can profit from by corporations from economic restrictions on the receipt of grave breaches of international activity that facilitates this abuse international funding.69 Many of law and in fact facilitate human needs to be addressed. A number Trócaire’s partners report pressure rights violations in contexts of developments to address on their organisations, which is where respect for human rights economic activity in the Israeli directly related to the pressure is weakly enforced or contested. settlements are progressing, such they are placing on corporations. For example, corporations as the UN Database on Business For example, in Honduras, the that operate in illegal Israeli Enterprises with Activities Related Broad Movement for Justice settlements are operating in to Israeli Settlements in the and Dignity (MADJ), had their a context where Palestinians’ Occupied Palestinian Territory (see bank accounts closed down in rights are violated consistently below). In addition, The Control order to curtail their work. In and on a daily basis. This includes of Economic Activity (Occupied Guatemala, a proposed NGO law their rights to freedom of self- Territories) Bill 2018, which seeks is being considered, which would determination, non-discrimination, to prohibit certain economic greatly restrict human rights freedom of movement, equality, activity with settlements beyond work of national and international due process, fair trial, not to be internationally-recognised borders, NGOs. Independent and well- arbitrarily detained, liberty and could also be applied to trade with resourced civil society is crucial security of person, freedom of the Israeli settlements given that for sustainable development and expression, freedom of access they have been deemed to violate human rights accountability. The to places of worship, education, international law. realisation of human rights can water, housing, adequate standard only happen in practice when of living, property, access to

UN Database on Business Enterprises with Activities Related to Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan

Despite UN resolutions declaring in certain Israeli settlement identified one Irish company that the illegality of settlements in activity in the occupied had been screened but not yet the West Bank, the settlements Palestinian territory.73 The listed contacted.75 The database will continue to expand along activities range from the supply assist both states and business with the development of new of equipment and materials enterprises in complying with their structures, thus undermining facilitating the construction and respective legal obligations and the right of Palestian people to the expansion of settlements responsibilities under international self-determination. 71 In 2013, an and the wall; the supply of law.76 The OHCHR is due to independent fact finding mission, equipment for the demolition publish before the March 2019 mandated by Human Rights of housing and property, the Human Rights Council session. Council resolution 19/17, found destruction of agricultural farms, that business enterprises have greenhouses, olives groves “directly and indirectly, enabled, and crops; to the provision of facilitated and profited from services and utilities supporting the construction and growth of the maintenance and existence the settlements.”72 In 2016, the of settlements, including Human Rights Council (HRC) transport.74 It is envisaged that adopted resolution 31/36 which that database will be a living requests that the UN High database that will be updated, Commissioner for Human Rights and be communicated annually would produce a database of all at the Human Rights Council. business enterprises engaged The 2018 report of the OHCHR Making a Killing: Holding corporations to account for land and human rights violations | 23

A growing threat: killing, harassment and criminalisation of human rights defenders (HRDs)

“…defending and promoting human rights in the context of business is dangerous, and even deadly, work. For defending human rights over profit, privilege and prejudice, ordinary people, communities, workers and trade unionists face stigmatization, criminalization, physical attacks and sometimes death.” Michel Forst, UN Special Rapporteur on the Situation of Human Rights Defenders 77 “The data on disappearances, unlawful killings and assassinations tells a horror story about the burden of fear, intimidation and violence associated with some business activities and borne at great personal cost by human rights defenders and other activists, including land rights and environmental defenders, and by affected communities.” Kate Gilmore, United Nations Deputy High Commissioner for Human Rights 78

As the threat to natural resources 3,064 prosecutions as a result who tend to pursue cases against has grown, communities seeking of the misuse of criminal law to human rights defenders, whilst to protect their human rights intimidate human rights defenders ignoring those initiated against have faced growing levels in Honduras.82 There is also a corporations.85 of violence and intimidation. worrying trend whereby laws are Growing numbers of human rights being developed to prosecute Our partners have also reported defenders are risking their lives in those who resist projects locally experiencing smear campaigns, order to protect their communities in higher courts. For example, travel bans, imprisonment, from the activity of corporations in in Honduras, an amendment gender-based violence and the areas of extractive industries, to a jurisdictional law in 2017 an undermining of the right to energy and infrastructure projects. included trespassing as a criminal freedom of assembly. Other extra- Companies belonging to land- offence, which means cases legal actions include threatening consuming industries, such as against human rights defenders phone messages, surveillance, mining, agribusiness, oil, gas face longer sentences and are physical attacks and destruction of and coal and dam construction, treated in the same manner as property.86 Those who are trying are the most dangerous for the most dangerous criminals.83 to resist businesses are being defenders.79 In 2018, Front Line In Guatemala, a proposed labelled as terrorists, criminals, Defenders documented 247 Law 5239 on anti-terrorist acts and anti-development in order to killings of defenders working includes a definition of cyber- undermine and discredit them, on land, indigenous peoples’ terrorism that criminalises and to deter others from joining and environmental rights. These criticism of the government with them and acting in solidarity. defenders are reported to be 3 and would make it possible to For example, in November 2018, times more likely to be killed than prosecute obstruction of traffic, Front Line Defenders put out an those working in other sectors. through protest, as a criminal alert in relation to Juana Esquivel, They are also more likely to be act. 84 The Special Rapporteur director of Fundación San Alonso targeted by physical attack and on human rights defenders has Rodriguez (FSAR), in Honduras, smear campaigns.80 With many also expressed particular concern who was targeted in a smear killings unreported, and even less about the complicity of states campaign due to her support investigated, it is likely that the true number is actually far higher.

Judicial harassment and Those who are trying to resist businesses are criminalisation are among the most common forms of being labelled as terrorists, criminals, and anti- attacks to silence opposition development in order to undermine and discredit to business-related projects.81 The Inter American Human them, and to deter others from joining with them and Rights Commission notes that acting in solidarity. since 2010 there have been 24 | Making a Killing: Holding corporations to account for land and human rights violations

for activists at Guapinol who are threats of sexual violence and take place in a context where resisting the development of dissemination of sexual images in business enterprises already have a mine in their area, which has order to stigmatise them. Often significant influence over states already caused damage to their the attacks against them are not and ensure that regulations, river. Her and her colleagues acknowledged as such and not policies and investment are being identified as criminals reported. The work of women agreements are framed in a way and anti-progress.87 In February human rights defenders can be that promotes the profitability 2019, 13 community leaders from seen as challenging social norms of their business, often to the Guapinol were arrested under and gender roles in society, which detriment of human rights. 89 In the national jurisdiction court can lead to hostility by the general some cases companies have used for organised crime. This is an population and the authorities.88 state forces, private security or extremely worrying development These defenders face the added organised crime to attack human in the criminalisation of land layers of institutionalised sexism rights defenders, and so, often and environmental defenders, when trying to access justice. the state is complicit or directly using a law that was designed involved in the attacks.90 to prosecute members of highly A lack of state action in response dangerous crimes, such as to attacks creates a culture of organised crime. impunity, increasing the likelihood of future attacks. The Special Women human rights defenders Rapporteur on the situation of are targeted in particular ways due HRDs notes that attacks, including to their gender, including through killings, of human rights defenders

Case Study: Daw Tin Hla

Daw Tin Hla, 61, lives in Myaung establishment of a formal Phyo village in southern Myanmar, mining monitoring group. The which has been affected by government gives this group the pollution from the nearby Heinda right to inspect the mine and tin mine. She is active on her report directly to the government village’s mining monitoring group, with the community’s concerns. which gets access to observe When the community lost their the company’s mine, and engage compensation case, Daw Tin directly with government. Hla was very upset. She spoke publicly about the case, and cried She says that as a result of the during the press conference. She pollution the water is not safe to says “my plantations are my life, drink, and of the 140 households my only livelihood”. in the village, only 30 have access to safe drinking water. Daw Tin Daw Tin Hla doesn’t trust in Minister and the monitoring group Hla has lost 250 betel nut trees the company’s Environmental together with the company, Daw and 12 coconut trees on her land Impact Assessment, saying that Tin Hla feels that the company due to flooding caused by the it has been done “in secrecy” is starting to behave better, and mine, and has not received any without proper consultation with is paying better wages to its compensation. the community. However she staff. She says “the government says that the regional Minister are responsible to protect the Daw Tin Hla has been active in for Natural Resources and community” and need to be organising the community, and Environmental Conservation accountable. campaigning for compensation does listen to the community’s and for the company to prevent concerns and negotiate with further pollution of their river. the company on their behalf. One success has been the Following meetings with the Making a Killing: Holding corporations to account for land and human rights violations | 25

Case study: Río Blanco, Honduras

before the trial, after calling for the judges to be recused for “Today there’s no satisfaction, or happiness, but we bias and abuse of authority. In are glad to see jailed the killers who murdered my November 2018, seven men were found guilty of her murder, two mother simply for defending natural resources at a of whom are directly linked with moment when she was defenceless. We don’t want DESA (the DESA communities and environment manager and the revenge because we are not killers like them, but former DESA security chief). Three we demand that the masterminds behind the murder of the seven men have ties to the be brought to justice.” Honduran army. Despite this ruling COPINH and the lawyers for Berta Cáceres Olivia Zuniga, Berta Cáceres’s eldest daughter 1 have noted that the owners and board of the company need In 2011 the Honduran company, due to her opposition to the Agua to be held to account. DESA Desarrollos Energéticos SA Zarca hydro-electrical project. documentation shows that its (DESA), started construction of Significant concerns have been board includes members of the a hydro-electric project in Río expressed internationally about business and political elites of Blanco in western Honduras, the trial of her murder, particularly Honduras. Accountability needs home to the indigenous Lenca regarding the exclusion of victims to go to the highest levels. community. This relatively small and the delay in trial proceedings. This is echoed by human rights project threatens the Gualcarque The UN Special Rapporteur experts who have said that river and the communal farm on Extrajudicial, Summary or “while we acknowledge that lands that surround it.2 Led by Arbitrary Executions on his the decision of the court is a the confederation of indigenous mission to Honduras in 2017 positive development, we remain organisations of Honduras expressed concern that case files concerned that the intellectual (COPINH), the community had been stolen from a Supreme authors and the financiers of have asserted the right to free, Court Magistrate and from the the crime have still not been prior and informed consent, in offices of the Broad Movement for investigated, prosecuted and relation to a project that will Justice and Dignity (MADJ).4 The sanctioned.”5 Furthermore, the have an impact on their lives and lawyers for the family, including Honduran Government should environment. The vast majority Victor Fernandez of MADJ, were revoke the license granted for the of the local population has been expelled from proceedings shortly Agua Zarca dam. protesting against the dam and there has been massive resistance in the area since 2013. Their resistance was met with repression, criminalisation and targeting of COPINH members. Global Witness have documented a litany of attacks and killings of human rights defenders who have opposed the Agua Zarca project. 3

Accountability for the murder of Berta Cácares Berta Cáceres’s was one of the most prominent environmental defenders in Honduras, co- founder of COPINH and an inspiring advocate for human rights. She was murdered in

March 2016 following repeated Austra Berta Flores Lopez (86) mother of Berta Cáceres, and Agustina Flores Lopez (59) sister of intimidation and death threats Berta Cáceres. Photo: Garry Walsh. 26 | Making a Killing: Holding corporations to account for land and human rights violations Making a Killing Holding corporations to account for land and human rights violations

Since 2015 more than In July 2017, the number of states 1400 in which action had been taken to activists restrict the working on human rights activities of related to business have been attacked.1 civil society reached a record 106, which is more than half the number of In 2018, states who are members of the 247 people United Nations.6 were murdered for defending land, indigenous peoples and In 2015, the world’s environmental rights. 2 top 10 corporations Sixty-nine had a combined revenue equivalent of the world’s top global to more than the 180 ‘poorest’ economic entities are countries.7 corporations, with only 31 being countries.3 The 2018 UN Global Compact Progress Report found that only Investors from high-income 27% of European companies countries reported performing risk are involved in 31.4% land assessments directly linked to deals which makes this human rights, and only 17% reported region the biggest investor conducting impact assessments region.4 linked to human rights.8

Over 70% of total CO2 emissions are linked to just 100 major fossil fuel companies.5 Making a Killing: Holding corporations to account for land and human rights violations | 27

In 2018, Criminalisation, 26 human attacks and rights harassment defenders have increased in Honduras were killed in Guatemala.9 since the coup of 2009. Between 2010 and 2017 more than 120 land defenders were murdered.13 Since 2010 there have been 3,064 As of 2016 there were prosecutions 837 potential as a result of the misuse of criminal law to intimidate human mining rights defenders in Honduras.10 projects in Honduras, extending across nearly 35% of the nation’s In December 2013, Guatemala territory.14 was ordered to pay $21.1 million A community in the Niger Delta was found to be drinking damages to a US water from a well that is based electricity company for introducing a regulation to contaminated lower electricity rates. 8 This was the equivalent of the per with benzene capita health spend for 44,608 (a known carcinogen) at levels Guatemalans in 2014.11 over 900 times above World Health Organization guidelines.15

Africa is the most Data from 10 African significant target area for countries shows that only land 12% of acquisitions agricultural accounting for 42% of land deals since 2000. 12 land is owned by women, compared to 31% by men.16 28 | Making a Killing: Holding corporations to account for land and human rights violations

Daw Tin Hla from Myanmar lost her livelihood due to pollution from a mine and now is working to hold the government and mining company accountable. She shows how the contaminated water has changed the colour of this bowl from silver to bronze. Photo: Garry Walsh. Making a Killing: Holding corporations to account for land and human rights violations | 29 Corporations: the accountability challenge “I have spoken of the economic and largely non-transparent power and authority of multinational corporations, an influence that is being felt unequally across the world, but that is being felt nonetheless. So often when we speak of the market, we are really speaking of large individual firms, some exercising extreme power, far greater and more extensive than that of the state.” President Michael D. Higgins91

“Too often those whose human rights are affected by the operations of businesses…are left without any real access to effective remedies, and often states themselves are without the requisite tools to hold corporations accountable where needed.” Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples 92

The current legal framework they are tasked with regulating. has not kept pace with the Power of According to UNCTAD in 2013, 93 rise of large and powerful corporations of the 100 biggest TNC’s had their transnational corporations in a main headquarters in countries globalised economy and has Since the 1970s, the dominance of the global north.98 However, therefore been ineffective at of the neoliberal model of free the overwhelming majority of preventing widespread abuses trade, liberated markets and the human rights violations are taking of human rights by corporations. privatisation of public services, place in countries of the global Furthermore, the vast majority has facilitated the proliferation south. In his 2006 report, the of human rights violations of transnational corporations. Special Representative of the perpetrated by corporations Supported by international Secretary-General on the issue go unpunished and impunity financial institutions including of human rights and transnational regarding human rights abuses the IMF and the World Bank, corporations and other business by companies is increasing.93 transnational corporations have enterprises surveyed allegations In international human rights gained unprecedented economic of the worst cases of corporate- law, states are considered the and political power in a few related human rights harm. primary duty-bearers, with a decades.95 Sixty-nine of the He found that they occurred duty to ensure that non-state world’s top global economic disproportionately in low income actors, including corporations, entities are corporations, with only countries; in countries that often respect human rights. They 31 being countries.96 In 2015, the had just emerged from or still should regulate the conduct of world’s top 10 corporations had were in conflict; and in countries businesses to ensure they are not a combined revenue equivalent where the rule of law was weak violating human rights and provide to more than the 180 ‘poorest’ and levels of corruption high. 99 an effective remedy to victims of countries.97 human rights violations, including There are significant power human rights defenders.94 While most transnational imbalances between the However, the size, influence and corporations are headquartered capacities of states to meet their complexity of corporations, along in industrialised countries, many obligations to protect citizens with the transnational nature of them have operations in the from human rights abuses by of much business, pose major global south, including in countries third parties, and the resources challenges for states or victims to whose revenues are dwarfed of transnational corporations. hold them to account. by those of the corporations Governments may be unable 30 | Making a Killing: Holding corporations to account for land and human rights violations

or unwilling to enforce human a regulatory approach that will “indigenous people continue rights with respect to these hold perpetrators of human rights to experience serious difficulty, corporations, or in some cases, violations accountable. Business against a backdrop of extreme may commit human rights organisations have lobbied against impunity, in obtaining access to violations themselves in order binding regulations and currently the ordinary justice system in to attract inward investment and oppose the proposed UN Treaty a way that meets the relevant to facilitate commercial activity on Business and Human Rights.103 international standards. The of transnational corporations.100 Special Rapporteur received For example, the Guatemalan numerous testimonies about the State facilitated the development Complexity and discrimination and racism suffered of a hydro-electric project by structure of by indigenous people, particularly Hidro Santa Cruz (a subsidiary indigenous women, when they of Hidralia Energia, a Spanish- transnational apply to the courts at the local owned hydroelectric company) in level.106 Santa Cruz Barrillas Guatemala, corporations through granting concessions Legal liability The complexity of corporate without consulting with the structures in a globalised economy community and by criminalising It can be difficult to hold parent enables transnational corporations the Q’anjob’al people who were companies legally accountable who commit human rights resisting the project. In May 2012, for the abuses caused by their violations to evade accountability. the Government declared a state subsidiaries. These legal concepts The UN Guiding Principles set out of siege and carried out arbitrary of separate corporate entity and some of the legal barriers that can arrests. The report of the UN High limited liability have their roots in Commissioner for Human Rights prevent legitimate cases involving colonisation and were first applied states that the decree establishing business related human rights to the British and Dutch East the state of siege lacked a abuses from being addressed, India Companies.107 Referred to clear justification and analysis including: the ways in which legal as the “corporate veil” a parent of necessity, exceptionality responsibility is attributed among company can avoid liability for the and proportionality and that members of a corporate group actions of a subsidiary by stating the 9 arrests constituted illegal under domestic criminal and civil that they are a separate legal detentions.101 laws; where claimants face a entity, even when it would have denial of justice in a host state and been in a position to influence the Corporations operating cannot access home state courts; conduct of a subsidiary. Parent domestically can also wield major and where certain groups including companies can counter cases economic and political power. indigenous groups and migrants by arguing that the subsidiary Indeed, the board of the company are excluded from the same level is the responsible party. Lifting at the centre of the murder of of protection that applies to the the corporate veil only occurs in Berta Cáceres in Honduras, general population.104 The UNGPs exceptional circumstances.108 In includes a former government acknowledge the additional the case of Okpabi and others official, a former military barriers or marginalisation that v Royal Dutch Shell plc and intelligence official and some are particular groups may face in Shell Petroleum Development part of one of the most powerful accessing remedy.105 Indeed the Company of Nigeria Ltd (2017) families in the country. In a global embedding of discriminatory (see box – section 1) the UK court context where there is an increase systems within institutions, found it did not have jurisdiction in nationalism, conservative including the courts and judiciary, to hear the claims against the policies and protectionism, there can operate to exclude women, subsidiary. As recognised by the is also a danger of states turning indigenous people and people UN Committee on Economic, inward with less focus on their from poorer communities from Social and Cultural Rights, international reputations and justice mechanisms. For example, establishing the causal link compliance with human rights in her report on Guatemala the between the conduct of the standards, thus further weakening Special Rapporteur noted that business in one jurisdiction and accountability for non-state actors.102

Corporate lobbying power The complexity of corporate structures in a extends to within the United globalised economy enables transnational Nations. Corporate actors have pushed for voluntary, corporations who commit human rights violations to partnership and consensus evade accountability. approaches at the UN rather than Making a Killing: Holding corporations to account for land and human rights violations | 31

the abuse which occurred in states, there are particular barriers Past experience has also shown another jurisdiction represents an that affected individuals face that where cases proceed against enduring challenge for victims.109 while trying to access remedy in local subsidiaries in host state However, in the case of Vedanta a different jurisdiction from where courts, there can be a risk that Resources PLC and Another v the violation took place. the subsidiary has insufficient Lungowe and Others, the Court funds, will be uninsured or will be dismissed the appeal of the UK The legal doctrine of forum non wound up, resulting in inadequate company Vedanta Resources, who conveniens, whereby courts are reparations for victims. 112 In 2017, were appealing a previous court given discretion to dismiss a case for the first time, a Canadian decision to allow claimants from in favour of a foreign jurisdiction court accepted jurisdiction for Zambia to bring their case to the is an obstacle for victims of alleged human rights violations in UK – thereby allowing the case corporate human rights violation Guatemala (see box in section 2). to be held in the UK courts.110 seeking redress in the home In this case, the British Columbia This decision is important in countries of a corporation. As Court of Appeal rejected efforts opening up the possibility that the UN Committee on Economic, by the Canadian company Tahoe parent companies could be liable Social and Cultural Rights (CESCR) Resources Inc. to dismiss the to communities affected by the notes, this means that states can lawsuit and concluded that there operations of their subsidiaries. decline exercising jurisdiction on was a risk that the claimants a legal case when they believe would not receive a fair trial Jurisdiction another jurisdiction is available in Guatemala, thus accepting to the victims. As there may jurisdiction.”113 Victims can face obstacles be many reasons as to why a to justice both in the country claim may not be possible in a Access to information where the human rights issues host state, including lack of due arise, the host state, and also process, political interference, Many of the barriers that victims in the home country, where the mistrust of the courts or lack of of human rights violations face in transnational corporation has its affordable legal assistance, legal holding corporations to account headquarters. While the existing options in the home state of are the result of, or compounded human rights framework does set the corporation also need to be by, imbalances between victims out extraterritorial obligations for leveraged to ensure justice.111 and corporations with regards to

José Cuc Cuz with his sons Edgar and Walter. They are struggling to retain their right to live on their ancestral lands. Photo: Manuel Morillo 32 | Making a Killing: Holding corporations to account for land and human rights violations

financial resources and access to funded legal teams compared to UN Guiding Principle 26 notes that information and expertise. It can the resources likely to be available “States should take appropriate be difficult to access evidence to communities living in poverty. steps to ensure the effectiveness on a company’s structure or In this context, the reversal of of domestic judicial mechanisms governance that might be crucial the burden of proof for victims when addressing business-related for a legal case. In this context of violations and a requirement human rights abuses, including victims of human rights violations of corporations to disclose considering ways to reduce can find it very difficult to access information is needed. The legal, practical and other relevant evidence of the company’s Committee on the Rights of the barriers that could lead to a denial activities and this undermines Child note that the lack of mutual of access to remedy.”115 their ability to build a successful legal assistance for the collection case. These issues are all the of evidence and the enforcement more difficult when challenging of judicial decisions can seriously major corporations with well- impede justice.114

Trade and investment: tipping the scales further in favour of corporations “It has become apparent that the regulatory function of many States and their ability to legislate in the public interest have been compromised. The problem has been aggravated by the chilling effect of certain awards that have penalized States for adopting regulations to protect the environment...The legality of such awards is questionable as contrary to domestic and international ordre public...” Alfred-Maurice de Zayas, UN Independent Expert on the Promotion of a Democratic and Equitable International Order, commenting on Investor-state Dispute Settlement 116

“The new colonialism takes on different faces. At times it appears as the anonymous influence of mammon: corporations, loan agencies, certain “free trade” treaties, and the imposition of measures of “austerity” which always tighten the belt of workers and the poor.” Pope Francis, World Meeting of Popular Movements 117

Since the 1990’s, multilateral trade agreements, have had These agreements act to increase and bilateral trade agreements adverse human rights impacts the culture of impunity. and investment agreements and negatively impact the State’s have contributed to the regulatory functions to advance Firstly, ISDS mechanisms can development of international the enjoyment of human rights.119 be used to challenge states who norms that create further A feature of many agreements is seek to develop legislation that barriers to holding transnational investor-state dispute settlement could enhance human rights. corporations to account .118 Over (ISDS) whereby a company For example, in December 2013, the past decades, the number can argue that new laws or Guatemala was ordered to pay of bilateral investment treaties regulations could adversely $21.1 million damages to a US and free trade agreements affect the expected profits or based electricity company for has proliferated. The 2015 potential investment, and seek introducing a regulation to lower report of the UN Independent compensation in a binding electricity rates. 120 This was the Expert on the promotion of settlement. Institutions like the equivalent of the per capita health a democratic and equitable World Bank affiliated International spend for 44,608 Guatemalans in international order identified Centre for Settlement of 2014.121 In a country where almost over 3,200 bilateral investment Investment Disputes (ICSID) 10% of the population live on less treaties alone, and highlighted provide legally binding arbitration than $2 per day and almost 60% that international investment in disputes between investors and live in poverty, lower electricity agreements, bilateral investment states. Companies can sue states rates could be a positive policy to treaties and multilateral free for not meeting projected profits. increase energy access for the Making a Killing: Holding corporations to account for land and human rights violations | 33

poor.122 Instead, this arbitration Trócaire has also worked with dispute settlement mechanism, process allows for decisions to communities impacted by the El is emerging as an issue of be made on purely monetary Tambor gold mine, located near concern for both developing terms for the investor, with no Guatemala City. In February 2016, and developed countries.129 The consideration of human rights. It the Guatemalan Supreme Court European Union is proposing the is worth noting that companies do ruled to provisionally suspend establishment of a Multilateral not face the same accountability. the mining license due to lack of Investment Court (MIC) to reform Under the Investor-State- prior consultation. In December the ISDS, a permanent body to Settlement Dispute mechanisms, 2018, the US based firm Kappes, settle investment disputes, which only a corporation can bring a Cassiday & Associates (KCA) filed would have an appeal mechanism state to court. There is no similar an international claim with the with permanent judges. There court where states can bring International Centre for Settlement are many ongoing discussions on companies when they violate of Investment Disputes against reform of trade and investment human rights or environmental the Guatemalan state. In its notice agreements, predominantly rights, or indeed where rights- of intent to file arbitration made dealing with how to make the holders can adequately access public in May 2018, KCA cited system of investment protection remedy. unjust treatment by the state, and and arbitration more predictable, community protests that prohibit and to better safeguard the policy Secondly, companies have also the company from carrying out space of states, but ultimately, a used the threat of arbitration to exploration and cited losses in fundamental shift away from the influence states’ decisions and excess of $300 million dollars.125 protection of foreign investors at to lobby for less regulation of Civil society organisations have the expense of human rights is their activities. In Guatemala, expressed concern with renewed needed. documents obtained through miltary presence in the area since the Freedom of Information Act the ruling.126 The UN Guiding Principles showed that the State ignored note that States retain their a recommendation from the Through trade and investment international human rights law Inter-American Commission on agreements, foreign investors are obligations when they participate Human Rights in 2010 to close assured much greater protections in multilateral institutions that deal down the Marlin goldmine owned regarding their interests and rights with business related issues, such by Goldcorp due to a threat of than in the case of human rights. as international trade and financial arbitration.123 The documents This imbalance in enforceable institutions.130 Human rights are warned that such an action could rights and protections becomes non-negotiable and should take provoke the company to activate even more problematic as primacy over trade or investment the ICSID or invoke clauses of current trade and investment agreements. Also, as articulated CAFTA to claim damages from the agreements do not establish by the UN Independent Expert state.124 Trócaire’s partner COPAE the primacy of human rights.127 on the promotion of a democratic works with the indigenous The UN Guiding Principles on and equitable international order communities who have been business and human rights state “to the extent that bilateral impacted by the mine in San that “States should ensure that investment treaties and free trade Miguel Ixtahuacan and Sipakapa, they retain adequate policy and agreements lead to violations which was developed without regulatory ability to protect human of human rights, they should be their free and informed consent. rights under the terms of such modified or terminated.”131 The The Maya-Mam communities agreements, while providing the political and economic power of were greatly affected by the necessary investor protection.”128 corporations in our globalised Marlin project through violence, However, in situations where economy is unprecedented attacks and intimidation against human rights obligations conflict and results in accountability those who spoke out against the with obligations of trade and challenges. There is an urgent project, including community investment agreements, the need for legislative and policy representatives, researchers cases above demonstrate that context that can navigate the vast and church representatives. human rights can be secondary to differences in power and resource Community members reported financial considerations. between victims and corporations that the local water supply was and to ensure justice and access contaminated and the excessive Reform of the international to remedy in line with human water use for the mine created investment protection regime, rights standards. water shortages. The company including the substance of the eventually closed in 2017. treaties and the investor-state 34 | Making a Killing: Holding corporations to account for land and human rights violations

Consuelo Soto from Honduras is refusing to back down against logging and mining companies that are exploiting her land. Photo: Frank McGrath Making a Killing: Holding corporations to account for land and human rights violations | 35 The way forward: legislative and policy opportunities “Multinational corporations are already a dominant part of the global economy - yet many of their actions go unrecorded and unaccounted. They must, however, go far beyond reporting just to their shareholders. They need to be brought within the frame of global governance, not just the patchwork of national laws, rules and regulations.” UNDP132

The international community has Other initiatives include solutions This patchwork of laws, rules and responded over the past few advanced by the non¬profit sector regulations has proved insufficient decades by introducing a large including Publish What You Pay to address the problem of number of guidelines, principles (PWYP) and Revenue Watch. widespread corporate impunity. and codes of conduct in an This section explores three areas attempt to prevent human rights These initiatives are all voluntary of policy opportunity in particular violations and to hold corporations in nature. Attempts to develop deepening the implementation of accountable for when violations binding approaches to hold the UN Guiding Principles, further occur. corporations accountable, such articulation of the rights enshrined as the Code of Conduct for in existing conventions by Treaty These range from the OECD Transnational Corporations in the Bodies and the development of a Guidelines for Multinational 1970s and the attempt to adopt UN Binding Treaty. We argue that Enterprises, which were adopted UN Norms on the Responsibilities while the multi-pronged approach over forty years ago (and were of Transnational Corporations and will be necessary, it is essential to updated in 2011) to the UN Other Business Enterprises in move beyond voluntary initiatives Global Compact launched in 1990s, were opposed forcefully if we are to ensure an end to 2000 as a special initiative of the by transnational corporations and impunity for corporate violations UN Secretary-General, which failed to be adopted by states.133 of human rights. has been signed up to by more than 9,500 companies, to a While different initiatives can whole host of other initiatives be taken on their own merit, UN Guiding and mechanisms to strengthen some are viewed as public Principles on governance in different areas, relations exercises that require including the Extractive Industries little additional action on behalf Business and Transparency Initiative (EITI), the of participants. For example, the Human Rights Kimberley Process Certification 2018 UN Global Compact Progress Scheme and the Voluntary Report found that only 27 per cent In 2011, the UN Human Rights Principles on Security and Human of companies reported performing Council unanimously endorsed Rights, the Conflict-Free Sourcing risk assessments directly linked the UN Guiding Principles on Initiative, the financial sector’s to human rights, and only 17 per Business and Human Rights benchmark for managing social cent reported conducting impact (UNGPs), a global standard on and environmental risk, known assessments linked to human business and human rights.135 The 134 as the Equator Principles and the rights. UNGPs were developed in order Santiago Principles developed to operationalise and provide by Sovereign Wealth Funds. further guidance on the “Protect, Respect and Remedy” framework which had been adopted by the ...it is essential to move beyond voluntary initiatives Human Rights Council in 2008. The UNGPs provide authoritative if we are to ensure an end to impunity for corporate guidance for the ways in which violations of human rights. states and businesses should operate to enhance standards 36 | Making a Killing: Holding corporations to account for land and human rights violations

and practices with regard to business and human rights. Both the United Nations and the European Union have called on all states to develop National Plans to implement the Principles. However, by 2019 only 21 states have published NAPs, largely in European countries.136 A gender analysis of existing NAPs by the Danish Institute for Human Rights also noted that not enough attention has been paid to gender in existing NAPs.137

The UNGPs provide an important conceptual framework to bring together the obligations of states and responsibilities of businesses. However, it is largely left to states and corporations to decide which guidance to adhere to. For example, although the UNGPs require that human rights due diligence is carried out by corporations, there is little indication of how states should monitor compliance and The UNGPs are a part of the Brothers Óscar Armando Cabrera Matute while the UNGPs refer to strong response to corporate human and Celso Alberto Cabrera Matute, from the Tolupane community, San Francisco Campo. policy reasons for states to meet rights abuses, and in combination Their mother Doña María Enriqueta Matute, obligations outside their territory, with legally binding measures was murdered on August 25, 2013. they are cautious in articulating could address the widespread Photo: Martin Calix. the reach of extraterritorial corporate impunity that has been duties.138 highlighted in earlier sections.

4.2 Human rights treaty bodies and business and human rights “If States take seriously their duties to ensure businesses comply with economic, social and cultural rights, markets can gradually contribute to the aims of the Covenant. They will be more sustainable and move societies in the right direction. Communities will also be better protected from the negative impacts of corporate activities where they have had the most damaging consequences, such as in the extractive industry.” Virginia Bràs Gomes, Chairperson of the UN Committee on Economic, Social and Cultural rights 139

By becoming parties to law that state obligations include the harm caused by such acts by international treaties, states a duty to regulate the conduct of private persons or entities.140 assume obligations and duties private groups or individuals to under international law to ensure that they do not violate Recent years have seen a respect, to protect and to fulfil the rights of others, and to ensure gradual strengthening of the human rights. The obligation to access to remedy. The UN Human extraterritorial duties of states in protect requires states to protect Rights Committee’s General the area of human rights, including individuals and groups from Comment 31 notes that positive their duties to regulate the human rights abuses, including by obligations on States Parties to activities of corporations whose entities such as corporations. It is exercise due diligence to prevent, conduct they can influence.141 well established in human rights punish, investigate or redress Both the UN Committee on the Making a Killing: Holding corporations to account for land and human rights violations | 37

Rights of the Child (CRC) and entities to exercise human changing world and acceleration the Committee on Economic rights due diligence. Paragraph 9 of transnational corporations. Social and Cultural Rights have recommends states to particularly While Treaty bodies are exploring developed General Comments incorporate a gender perspective further ways to ensure that states with a specific focus on business into all their measures to regulate meet their obligations, this does and human rights. Taking into businesses, also paying attention not address the difficulties that account that subsidiaries may be to the intersectionality and states may have in regulating engaged in land dispossession, multiplicity of discriminations powerful corporations that may the CRC notes that transnational which certain segments of the be larger than they are. While corporations must be regulated population face (e.g. indigenous General Comments provide by the states of origin or where women and girls). an authoritative and influential they are headquartered and interpretation of existing that the state should ensure There has been a gradual international human rights law, it that transnational corporations strengthening of efforts by is often the case that new legal within their border are adequately Treaty bodies to enforce and instruments are required as new regulated.142 articulate existing human rights challenges to human rights arise, obligations of states. Increasingly none more so than in the case The UN Committee on ESC Treaty bodies are raising issues of the activities of transnational Rights notes that states should of business and human rights in corporations and other business control corporations across their concluding observations.144 enterprises. national borders to protect International human rights law communities from adverse has recognised the duty of human rights impacts and states to regulate the activity that it expects home states of of corporations, to extend transnational corporations to such duties to extraterritorial establish appropriate remedies, situations and to impose on all guaranteeing effective access to states that they cooperate with justice for victims of business- one another in transnational related human rights abuses situations.145 However, while when more than one country is some of the Treaty bodies are involved.143 The ESC committee articulating positions on human outlines that states have a rights and businesses, the human positive duty to adopt a legal rights framework has not fully framework requiring business adapted and kept pace with the

International Labour the right to collective bargaining; protection of indigenous and tribal 148 Organisation the elimination of all forms of peoples’ rights. It has been forced or compulsory labour; ratified by 23 countries to date. International labour standards are the effective abolition of child legal instruments drawn up by the labour; and the elimination of The principles laid down in the ILO’s constituents (governments, discrimination in respect of Tripartite Declaration of Principles employers and workers) and employment and occupation.146 concerning Multinational setting out basic principles and ILO Convention No. 169147, Enterprises and Social Policy rights at work. They are either concerning Indigenous and Tribal (MNE Declaration) offer guidelines conventions, which are legally Peoples in Independent Countries to multinational enterprises, binding international treaties that is a comprehensive instrument governments, and employers’ may be ratified by member states, that covers a wide range of issues and workers’ organisations in or recommendations, which concerning indigenous peoples, such areas as employment, serve as non-binding guidelines. including land rights, access training, conditions of work and The ILO’s Governing Body has to natural resources, health, life, and industrial relations. This identified eight conventions education, vocational training, guidance is founded substantially as “fundamental”, covering conditions of employment, and on principles contained in subjects that are considered as contacts across borders. It is the international labour Conventions fundamental principles and rights only international legal instrument and Recommendations. at work: freedom of association that is open for ratification and the effective recognition of which exclusively deals with the 38 | Making a Killing: Holding corporations to account for land and human rights violations

Towards a UN Treaty to regulate transnational corporations and OBE “There is a compelling need to adopt a legally binding convention on corporate social responsibility, and to impose civil and penal liability on transnational corporations, as a way of protecting rights holders from violations enabled by corrupt Governments, investors and speculators.” Livingstone Sewanyana, UN Independent Expert on the Promotion of a Democratic and Equitable International Order 149

“We are here to change the rules of the game, globalisation as we know it is not set in stone.” Professor Oliver De Schutter, University of Louvain 150

In June 2014, the Human Rights rights law.151 The Resolution, future international instrument. Council established an open- put forward by Ecuador and The third session discussed key ended intergovernmental working South Africa, was adopted by a elements for a draft legally binding group (OEIGWG) on transnational recorded vote of 20 to 14, with 13 instrument and after a series of corporations and other business abstentions.152 information consultations in 2018 enterprises with respect to human a zero draft treaty and zero draft rights, to elaborate a legally The first and second sessions of optional protocol were prepared binding instrument to regulate the OEIGWG, were dedicated for discussion at the fourth the activities of transnational to conducting constructive session. corporations and other business deliberations on the content, enterprises in international human scope, nature and form of a The fourth session in October 2018 was seen as a milestone in the elaboration of a binding treaty on business and human rights. This session in Geneva was the first time that member states inputted on the substantive content of the treaty, providing comments and positions from states on the issues of scope, jurisdiction, and the refinement of legislative language. The fifth session, scheduled in October 2019 will focus on an official first draft of the legally binding instrument.

While some member states have been very supportive of the treaty there has been significant opposition from others. Corporations represented by the International Organisation of Employers oppose the development of a legally binding treaty to regulate their actions and the process is often contested. Countries that are home states of large transnational corporations have also opposed the process Maria Mercedes Gomez, 65, is from the Rio Blanco community who are resisting the including the US, Canada, and construction of a hydro-electric dam. Maria is a member of the Rio Blanco Elderly Indigenous Council. Photo: Garry Walsh. the UK. The EU, representing Making a Killing: Holding corporations to account for land and human rights violations | 39

Ireland, has stood in opposition positively disposed towards Parliament has expressed support to the Treaty; it has called for a a Treaty and constructively for a binding UN instrument as new resolution, has not actively engaging in the Treaty process. a necessary step forward in the engaged in the OEIGWG sessions Civil society, rooted in the promotion and protection of and in 2018 dissociated from experiences of communities and human rights and has adopted a the recommendations and human rights defenders, across range of Resolutions in support conclusions of the process. the world has been mobilising of the process.155 The European and advocating for a treaty. The Network of National Human In contrast, a range of host global treaty alliance153 consists Rights Institutions has noted countries support the process of more than 1,100 organisations the insufficient progress on the mainly in Latin America and who recognise the potential of part of European businesses Africa, including South Africa this new instrument to enhance in implementing human rights and Ecuador who have been key protection for victims against due diligence and the adverse advocates for the Treaty. There are human rights violations and impacts of businesses on human also some states that are home to to provide effective access to rights, and stated that a binding large transnational companies that remedies. Over 300 civil society treaty could make a significant are supportive of a Treaty, such organisations, including human contribution to addressing current as India, which is encouraging. rights defenders and trade unions governance gaps.156 A number of EU member states, participated in the latest session including France, are now more of the OEIGWG.154 The European

What a UN Treaty should include: A new treaty is an opportunity to further develop international human rights law in line with the lived reality of communities and human rights defenders who are on the frontlines of corporate human rights abuses. A new instrument should address the following areas:

Overarching Access to justice Ensure a gender lens throughout treaty Overcome jurisdictional barriers with specific provisions reference to extraterritorial obligations Affirm the protection of human rights Remove legal barriers to corporate liability so that defenders - including mechanisms to refrain parent companies can be held liable for the actions from restrictive laws, protection against of their subsidiaries criminalisation and attacks, and immediate Ensure access to information for victims responses to attacks - taking into account the specific harms experienced by women human Ensure effective judicial cooperation and legal rights defenders assistance across jurisdictions Strong enforcement mechanisms Reversal of the burden of proof Legal aid for victims Prevention Provide for mandatory human rights Primacy of human rights due diligence (including gender impact Articulate the primacy of human rights over trade assessments), specifically mentioning and investment agreements business relationships related to supply, Ensure human right impact assessments on export, services, insurance, finance and trade and investment agreements and other trade investment, reinforcing the whole value chain related initiatives - prior to the start of negotiations, approach before the conclusion and regularly during the Provisions for free, prior and informed consent implementation of indigenous peoples A clause to ensure that the obligations of the Strengthen mechanisms to consult with Treaty must fully be taken into account in any trade communities and investment dispute settlement mechanism 40 | Making a Killing: Holding corporations to account for land and human rights violations

Ireland’s position on Business and Human Rights “I believe that the protection of human rights and the promotion of economic growth, trade and investment should be complementary and mutually reinforcing. We can put respect for human rights at the heart of all our business practices as we work towards meeting the sustainable development goals set out in agenda 2030 at national, regional and global levels.” Simon Coveney T.D., Tánaiste and Minister for Foreign Affairs and Trade 157

Ireland published a National resourced, publicised or effective. and prevent adverse human Plan on Business and Human Between 2001 and 2015 just three rights and environmental impacts Rights 2017-2020 in November cases were filed with the NCP throughout the supply chain. 2017. The plan is rooted in a and in one of these cases the It establishes liability when stated commitment to “promote complainant was waiting over four companies default on their plan or responsible business practice years for an initial assessment.162 its implementation. The preamble at home and overseas and to makes the point that increasingly put respect for human rights It is notable that the draft baseline companies are adopting ethical at the heart of all our business assessment for the National charters and adhering to voluntary practices.”158 This is an important Plan on Business and Human principles and that many step in bringing the UN Guiding Rights acknowledges that the companies are adopting best Principles on Business and commitments in the National practices, and that therefore the Human Rights into the sphere Plan propose a largely voluntary law will penalise the companies of official Government policies regime, whereby the role of the that have not implemented these and demonstrates a continued State is to encourage and support practices or who use it as a commitment towards ensuring rather than to ensure compliance display, while the efforts of others that Irish businesses respect by way of a mandatory regime. It will be enhanced.163 human rights domestically raises concerns about low levels and abroad. In early 2019 a of compliance and recommends The development of European Business and Human Rights mandatory human rights due Union (Disclosure of Non-Financial Implementation Group was diligence. It makes a series and Diversity Information by established to oversee the of strong recommendations certain large undertakings and implementation of the National that should be incorporated groups) Regulations 2017, which Plan with representation into the implementation of transposed the EU Directive across relevant government the National Plan, including in (2014/95/EU) in law, provides a Departments, civil society and relation to Human Rights Due useful foundation upon which academia. A baseline assessment Diligence (HRDD) as a minimum Ireland could develop mandatory of the legislative and regulatory requirement; reporting on HRDD human rights due diligence. It framework in Ireland has been practice outside the jurisdiction requires large public-interest completed for publication in and the particular need to ensure companies with more than 500 2019.159 HRDD in high risk industries or employees to include a declaration conflict jurisdictions. in their annual management Under the OECD Guidelines report containing information for Multinational Enterprises In relation to mandatory stating material data related to National Contact Points (NCPs) human rights due diligence, are established by governments a number of developments in to promote and implement other jurisdictions could inform the Guidelines.160 In the Irish Ireland’s approach. Germany is In relation to mandatory context, the role of the NCP in the process of drafting a law human rights due is to undertake promotional on mandatory human rights due activities, handling enquiries, diligence for German companies diligence, a number and contribute to the resolution and their supply chains. The of developments in of issues that arise from the 2017 French Law on the Duty of alleged non observance of the Vigilance of Parent and Instructing other jurisdictions OECD Guidelines in specific Companies establishes a legally could inform Ireland’s instances.161 However, Ireland’s binding obligation for parent National Contact Point has been companies (focusing on the approach. criticised for not being adequately largest companies) to identify Making a Killing: Holding corporations to account for land and human rights violations | 41

Ireland has recently developed and supported resolutions on civil society space in the Human Rights Council, a foreign policy priority, and is seen as a leader in this regard.

the environment, social affairs, Principles and the UN Treaty can their rights and by extension human rights, and prevention of and should be mutually reinforcing civil society space. The issues corruption. and complementary. There is that Ireland has pioneered at the opportunity for Ireland to engage human rights council, including Trócaire has recommended with the treaty process in a challenging stigmatisation and that Ireland should support the supportive way and to strengthen criminalisation of human rights development of a UN Treaty on the content of the draft legally defenders, align with the issues business and human rights, a binding treaty where needed. that human rights defenders are recommendation that was also Indeed, there are a range of asking to be addressed in the included in the Shadow Report areas that still need inclusion and legally binding treaty. by Coalition 2030, a coalition refinement, including protections of over 60 Irish civil society for human rights defenders and organisations working on the a gender analysis throughout Sustainable Development Goals. the treaty. Ireland has recently To date Ireland has not been developed and supported supportive of a legally binding resolutions on civil society space treaty on business and human in the Human Rights Council, a rights, focusing instead on the foreign policy priority, and is seen implementation of the UNGPs, as a leader in this regard. The the OECD guidelines and the ILO treaty negotiations would be an International Tripartite Declaration opportunity for Ireland to bring of Principles Concerning this expertise to bear on a process Multinational Enterprises and that human rights defenders Social Policy. The UN Guiding are calling for in order to protect

Northern Ireland – Action on business and human rights “Just as consumers and service users are giving more careful consideration to the products and services they choose to purchase based on the reputation and values of the service provider, there is a duty on businesses and the State to ensure they are respecting and protecting human rights.” Draft Northern Ireland Action Plan on Business and Human Rights164

In the absence of a sitting Northern Ireland Executive and Northern Ireland Assembly, the Northern Ireland Business and Human Rights Forum is developing a Northern Ireland Action Plan on Business and Human Rights. Members of the Forum will commit to this plan and it will be used as a platform to promote business and human rights in Northern Ireland.165 The plan seeks to incorporate the UNGPs as a model of good practice on business and human rights in Northern Ireland. For meaningful progress to be made, state action must follow this positive action by the Forum. In addition, it will be important for Northern Irish political leaders to play a part in ensuring UK support for an international binding treaty on Business and Human Rights. 42 | Making a Killing: Holding corporations to account for land and human rights violations

Recent reports of Irish companies accused of human rights violations

In 2018 the Global Legal Action damage.168 Figures from the ESB rights defenders in Colombia. Network submitted a formal show that almost 90% of the Environmental degradation, complaint against San Leon coal burned at Moneypoint has and the rights of indigenous Energy PLC, an Irish based multi- come from Colombia, and the communities to be consulted in national oil and gas exploration vast majority of that has come regard to projects which affect company. GLAN assert that “San from the Cerrejón mine in the them, such as the Cerrejón Leon’s activities in Western Sahara north east of Colombia.169 This mine, are recurring challenges… contribute to the maintenance of is sourced through CMC Coal I remain concerned at reports of an illegal annexation and denial Marketing, a Dublin-registered mining activities having a negative of the internationally-recognised company set up to market and impact on local populations or on right of the Sahrawi people distribute coal from Cerrejon the environment, as well as of to self-determination in their in Ireland and internationally. reported abuse of workers.”170 territory,” and that “companies The company, which is owned like San Leon benefit from by Anglo American, BHP and Morocco’s illicit economy in Glencore, according to their Western Sahara and contribute website have co-ordinated the to the severity of ongoing human sale and delivery of over 450 rights violations.”166 The complaint million tonnes of Cerrejón coal. alleges that the company failed Trócaire, along with other non- to ensure that it has the consent Government organisations of the Western Saharan people have expressed concern to the before drilling for oil on their land. Oireachtas Joint Committee The complaint was filed before on Communications, Climate Ireland’s National Contact Point for Action and Environment that Irish the OECD.167 companies are facilitating the environmental degradation and Reports have also highlighted human rights abuses that have the use by the Electricity Supply been identified at the Cerrejon Board (ESB) of coal from the mine. In 2018, in response to a Cerrejón mine in Columbia, Daíl question, the Tánaiste noted a mine long since associated that “I am aware of the specific with human rights issues, mine to which the Deputy refers, including displacement, a lack and of the difficult situation of consultation with indigenous which currently obtains for communities, and environmental environmental and indigenous

Figures from the ESB show that almost 90% of the coal burned at Moneypoint has come from Colombia, and the vast majority of that has come from the Cerrejón mine in the north east of Colombia. Making a Killing: Holding corporations to account for land and human rights violations | 43

Case study: Consuelo Soto

A voicemail told Consuelo Soto she would be raped and cut into pieces if she didn’t keep her mouth shut. Days later her husband was shot dead.

Consuelo and her community in Honduras are refusing to back down against logging and mining companies that are exploiting her land. And she knows, not just from what happened to her husband, there are men who think little of taking a life to silence those who stand in the way of powerful interests. The Tolupan have seen around 100 people murdered in the past two decades.

Recently, there has been a further surge in assassinations of Tolupan people, as well as many others who have stood firm against the exploitation of vast tracts of land “People came looking for me and was afraid and then the threats where indigenous communities others and they asked for us by started. I got voicemails saying live. Living in her remote forest name. They came to my house if I kept going two of my fellow community of San Francisco and they offered me money to campaigners would be killed and I de Locomapa high up in the stop speaking out. First they would be raped and cut up. Thank mountains above the city of El offered me 30,000 lempira and God I never had a moment of Progeso, Consuelo shows little when I said no they offered me weakness and took the money.” signs of wavering in the face of 50,000,” she said. These are such obvious danger. She said she huge sums for people who live Consuelo lives life constantly began campaigning against the in simple homes with corrugated looking over her shoulder. She logging and mining firms in 2002, metal roofs but Consuelo would says, “I am very afraid but I won’t but that in 2007 the seriousness not be swayed, although she give up. Because blood has been of what she was doing became admitted she felt very intimidated spilled I have the strength to go clear. by the advances. “Of course I on fighting.”

Consuelo lives life constantly looking over her shoulder. She says, “I am very afraid but I won’t give up. Because blood has been spilled I have the strength to go on fighting.” 44 | Making a Killing: Holding corporations to account for land and human rights violations

Felipe Gomez (63) stands next to the sacred Rio Gualcarque river. He is a member of the Rio Blanco Elderly Indigenous Council who are resisting the construction of a hydro-electric dam. Photo: Garry Walsh. Making a Killing: Holding corporations to account for land and human rights violations | 45 Recommendations: action on accountability

“We note that often the businesses which operate this way are multinationals. They do here what they would never do in developed countries or the so-called first world. Generally, after ceasing their activity and withdrawing, they leave behind great human and environmental liabilities such as unemployment, abandoned towns, the depletion of natural reserves, deforestation, the impoverishment of agriculture and local stock breeding, open pits, riven hills, polluted rivers and a handful of social works which are no longer sustainable”. Pope Francis, Laudato Si’: On Care for Our Common Home 171

This paper has outlined major gaps Secondly, closing the gaps in the in the way in which corporations regulatory framework governing are regulated in relation to human corporate accountability and re- rights. Victims of business- balancing the current primacy of related human rights violations trade and investment over human are facing multiple barriers that rights: by addressing parent prevent them from gaining company liability, overcoming access to remedy, particularly jurisdictional barriers, access in relation to transnational to information and mutual legal corporations. This level of assistance, access to legal impunity creates a situation systems, a reversal of the burden where those on the frontlines of of proof and the primacy of human defending resource rights and rights over trade and investment their wider communities are is essential to end impunity and rendered powerless in the face prevent future corporate violations of corporations who can extract of human rights. resources at the expense of human rights. The UN Treaty is a critical instrument that can address This is a major human rights issue corporate impunity from a global of our time that must be tackled. perspective and through removing A range of legislative and policy the barriers to accessing remedy responses are needed, including put an end to the impunity that actions on two main tracks: leaves victims so powerless. Building on this a culture of Firstly strengthening the natural respect for human rights by resource rights of communities, all corporate entities can be protecting human rights defenders established. The legally binding and ensuring civil society space treaty can allow for the application is protected, are essential for of the UN Guiding Principles, and enabling communities to advocate to build a culture of respect for for their rights. human rights across corporations. 46 | Making a Killing: Holding corporations to account for land and human rights violations

We call on all countries, and Adopt mandatory human 2018 through Dáil Éireann and in particular Ireland to show rights due diligence to ensure enshrine it into legislation. leadership and pioneer this businesses respect human new development in human rights – across business Ensure that the publication rights law. The de-carbonisation activities and business of the UN Database of transition that is an essential relationships related to supply, companies operating in Israeli response to the climate crisis export, services, insurance, settlements in the occupied represents a transformation at a finance and investment, West Bank and East Jerusalem scale much like the agricultural or reinforcing the whole value occurs as planned, and support industrial revolutions. It is both chain approach. the ongoing resourcing and appropriate and essential that this updating of the database is the moment to fundamentally Implement an effective Irish following its initial publication. transform accountability of National Plan on Business corporations in order to ensure and Human Rights, based Ensure that the contribution poverty, vulnerability and human on a comprehensive gender of Irish businesses to advance rights abuses decrease rather analysis. the climate transition are than spiral during this transition. accompanied by mandatory Ensure the Irish National human rights due diligence IRELAND SHOULD: Plan on Business and Human and environmental impact Rights aligns with the national assessments in order to Strengthen corporate plan to implement the avoid further violations of accountability: sustainable development goals fundamental rights. (SDGs). Support a UN binding treaty Strengthen resource rights of on business and human rights Ensure that business partners communities: to regulate in international law for sustainable development the activities of transnational have made a clear and Provide support through corporations and other demonstrable commitment to the Irish Aid programme business enterprises — the UN Guiding Principles on for strengthening land and with provisions to ensure Business and Human Rights, other natural resource rights, the prevention of human and uphold these principles in particularly for women and rights violations, access efforts to reach the SDGs. indigenous communities. to justice, the primacy of human rights over trade and As member of the European Ensure Irish investors and investment agreements, Union work to ensure the corporations respect land protection of human rights removal of the investor-state and other natural resource defenders, inclusion of a dispute settlement provisions rights through their business gender perspective and strong from existing trade and operations. enforcement mechanisms. investment agreements, and do not conclude any such Strengthen civil society space: Engage constructively in UN agreements in the future. treaty discussions to ensure Continue to advocate for an the protection of human rights Ensure the primacy of human enabling civil society space defenders and a strong gender rights is provided for and fully in all countries, at the Human analysis is embedded in the implemented in all trade and Rights Council and in other treaty. investment agreements to international fora. which Ireland is a party. Attend and participate Support and respond to alerts in the Open Ended Conduct human rights by international civil society Intergovernmental Working impact assessments prior networks and speak out Group to elaborate a legally to concluding trade and against government actions binding treaty to regulate investment agreements, and which seek to constrain transnational corporations. provide for the suspension legitimate civil society or amendment of contractual activities. Act as member of the provisions where these have European Union to proved a risk to human rights. Support and protect Irish and encourage the EU to engage global civil society actors constructively in the UN treaty Facilitate the passage of The and networks through direct negotiations. Control of Economic Activity programme support. (Occupied Territories) Bill Making a Killing: Holding corporations to account for land and human rights violations | 47

Make available specific funding Take immediate, appropriate to concluding trade and to develop partnerships, and and effective action in relation investment agreements, and programmes, that strengthen to specific attacks on human provide for the suspension an enabling environment rights defenders – for example or amendment of contractual for civil society, and protect through public statements, provisions where these have human rights defenders. support for local organisations proved a risk to human rights. working to protect human Ensure the fulfilment of rights defenders, and urging Ensure that efforts to harness human rights principles, the UK Government to do the the contribution of business including the protection of same. to advance the climate civil society activism, as the transition are accompanied by overarching framework for ALL COUNTRIES SHOULD: mandatory human rights due defining performance criteria in diligence and environmental aid relations — necessitating Support a UN binding treaty impact assessments in order resources and training on business and human rights to avoid further violations of to regulate in international law on human rights, and the fundamental rights. identification of human rights the activities of transnational corporations and other impact, to be contained in Strengthen resource rights of business enterprises – with partnership agreements. communities: provisions to ensure the prevention of human rights Protect human rights defenders: Promote domestication of violations, access to justice, the Voluntary Guidelines on the primacy of human rights Explicitly recognise the the Responsible Governance over trade and investment legitimacy of human rights of Tenure of Land (VGGT) agreements, protection of defenders and publicly support through National Engagement human rights defenders, and acknowledge their work, Strategies. with a particular focus on the inclusion of a gender perspective and strong participation of women human Promote the responsible enforcement mechanisms. rights defenders. governance of land and resources through the Implement existing human Ensure Irish investors and implementation of Free Prior rights treaty obligations in corporations respect the rights and Informed Consent (FPIC). of human rights defenders. relation to business and human rights. Implement and respect the UN Take immediate, appropriate Declaration on the Rights of and effective action in relation Adopt mandatory human Indigenous Peoples. to specific attacks on human rights due diligence to ensure rights defenders – for example businesses respect human Implement and respect the through public statements, rights. UN Declaration on the Rights diplomatic channels, and of Peasants and Other People support for local organisations Implement the UN Guiding Working in Rural Areas. working to protect human Principles on Business and rights defenders. Human Rights, based on a comprehensive gender Ensure contractual analysis. engagements between NORTHERN IRELAND state authorities and private SHOULD: Remove investor-state dispute contractors do not violate the rights of communities and Develop a Northern Ireland settlement provisions from human rights defenders. National Action Plan on existing trade and investment Business and Human Rights, agreements, and do not Strengthen civil society space: based on a comprehensive conclude any such agreements gender analysis, and the in the future. Ensure an enabling legal adoption of same by the framework and a conducive Northern Irish Assembly when Ensure the primacy of human it is sitting. rights is provided for and political and public fully implemented in all trade environment for civil society Encourage the UK Government agreements and treaties to organisations to freely carry to support a UN binding treaty which they are a party. out activities, on a legal basis, on business and human rights. consistent with international Conduct human rights law and standards, to strive for impact assessments prior the protection and promotion 48 | Making a Killing: Holding corporations to account for land and human rights violations

of all human rights and Explicitly recognise the Intergovernmental Working fundamental freedoms. legitimacy of HRDs and Group on transnational publicly support and corporations and other Ensure that legislation, in acknowledge their work. business enterprises with particular on freedom of respect to human rights. association, peaceful assembly Publicly recognise the and expression, is drafted and importance of the equal and Treaty bodies and the Human applied in conformity with meaningful participation Rights Council should continue international human rights law of women human rights to use their country hearings and standards. defenders at every level and in and the universal periodic every institution in society. review procedure to inquire Refrain from implementing into and make concluding laws, administrative Refrain from developing anti- observations in relation to the procedures which restrict the terrorism laws that target civil impact of corporations on the operation of civil society. society actors and human realisation of human rights in rights defenders. communities and for human Establish effective, rights defenders. independent, pluralistic and Refrain from the criminalisation adequately funded NHRIs in of human rights defenders. Treaty bodies and the Human compliance with the Paris Rights Council should Principles, or where they Ensure the protection of systematically use their already exist, strengthen human rights defenders, country hearings and the them for the protection and particularly land, environmental universal periodic review promotion of all human rights and indigenous defenders who procedure to inquire into the and fundamental freedoms, are at high risk. impact of bilateral investment including in their role to protect treaties and free trade and promote an effective Take steps to prevent and agreements on the enjoyment environment for civil society. address the specific harms of human rights. experienced by women human Monitor and document trends Ensure timely and transparent rights defenders, including in relation to civil society and public consultations in policy smear campaigns and gender provide international sources development and draft based violence. legislation, especially where it of funding for civil society who are unable to avail of national may affect civil society, making Ensure independent and funds. sure to promote and support effective investigations of the participation of a diverse violations of HRDs’ rights and Monitor and document civil society. ensure accountability for those violations against human rights responsible. Provide support and funding defenders, disaggregated by gender and ethnicity, to for civil society organisations; Ensuring access to resources identify trends and areas that particularly those focused to support funding of HRDs need specific support. on the rights of indigenous and increase efforts to peoples and women. promote their activities in Ensure consistent accordance with the principle Protection of HRDs: implementation of the EU of substantive equality to roadmaps for civil society, ensure equal participation of Implement and respect the UN as it relates to the enabling women. Declaration on Human Rights environment for civil society Defenders. (EU). THE INTERNATIONAL Build a safe and enabling COMMUNITY INCLUDING Ensure consistent environment for women and all THE EU SHOULD: implementation of the EU other human rights defenders Guidelines on HRDs (EU). to promote and protect human Ensure the elaboration of a rights, ensuring that all non- legally binding instrument Create a public online regularly state actors respect human to regulate the activities of updated platform of business rights and that all State actors transnational corporations and enterprises engaged in respect, protect and fulfil other business enterprises. business activities related to human rights. Israeli settlements pursuant Provide adequate funding to Human Rights Council to the Open-Ended Resolution 31/36 (OHCHR). Making a Killing: Holding corporations to account for land and human rights violations | 49 endnotes

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CASE STUDY: San Rafael Las Flores, Guatemala p.14

1 Mining Watch Canada [7 July 2017] 6 Sekyiamah N., Medanhodzic 10 Tahoe Resources [2017]’News ‘Tahoe Licences Suspended for Lack L., Ford L. [29 November 2017] Release – Guatemalan Constitutional of Consultation with Indigenous ‘Remembering Women Killed Court Reverse Supreme Court Communities, While Company Fighting for Human Rights in 2017’ Ruling to Reinstate Escobal Mining Denies Indigenous Presence and accessed accessed {insert 7 IACHR [31 December 2015] Ruling_03September2018-v.-F.pdf> date}. ‘Situation of Human Rights in accessed {17.02.2019}. 2 Hill, D. [14 December 2015] ‘Can Guatemala: Diversity, Inequality and 11 Jamasmie, C. [14 November 2018] Canada’s New PM Stop Mining Exclusion’ accessed {17.02.2019} p 92. com accessed justin-trudeau-mining-abuses-latin- 2013] ‘Mining License Approved in {17.02.2019}. america> accessed {17.02.2019}. Wake of Violence, Investigation into 12 Tahoe Resources [14 November 3 Meeting with Trócaire staff in Murder Pending’ accessed {17.02.2019}. CISION PR Newswire justin-trudeau-mining-abuses-latin- www.mining.com/web/guatemalans- accessed {17.02.2019}. america> accessed {17.02.2019}. lawsuit-against-tahoe-resources-to- 5 Movimiento de Mujeres Indigenas go-to-trial/> accessed {17.02.2019}. Tz’ununija [2018] ‘Diagnóstico situacional de las mujeres Xinkas en el acceso a la justicia’.

CASE STUDY: CASE STUDY: Polochic Valley, Guatemala p.18 Río Blanco, Honduras p.25

1 Interview with Trócaire staff, June 1 Lakhani, N. [30 November 2018] 4 HRC [11 April 2017] ‘Report of the 2018. ‘Berta Cáceres: Seven Men Special Rapporteur on Extrajudicial, 2 Environmental Justice Atlas accessed world/2018/nov/29/berta-caceres- 5 OHCHR [7 December 2018] {18.02.2019}. seven-men-convicted-conspiracy- ‘Honduras: Masterminds of Berta murder-honduras> accessed Cáceres Killing Still at Large, Say UN 3 IAHRC [2011] ‘Precautionary {17.02.2019}. Measure 121-11 – 14 Q’echi Experts’ project/agua_zarca_dam> accessed accessed {18.02.2019}. {17.02.2019}. 3 Global Witness [2017] ‘Honduras – The Deadliest Place to Defend the Planet’, P. 13. Making a Killing: Holding corporations to account for land and human rights violations | 55

PAGES 26-27

1 See Business and Human Rights 6 UNGA [19 July 2017] ‘Situation 12 Nolte, K., Chamberlain, W., Giger, Resource Centre database accessed {17.02.2019}. on the Situation of Human Rights the Land Matrix: Analytical Report II’ 2 Frontline Defenders [2019] ‘Front Defenders’ UNGA, UN Doc A/72/170. University of Pretoria accessed {11.02.2019}, p accessed uk/sites/default/files/files/resources/ vs Governments Revenues: 2015 {11.02.2019}. corporations_vs_governments_final. Data’ accessed {17.02.2019}. uk/sites/default/files/files/resources/ Biggest Companies Compare to 8 UN Global Compact [2018] corporations_vs_governments_final. the Biggest Economies?’ World ‘United Nations Global Compact pdf> accessed {17.02.2019}. Economic Forum accessed accessed {17.02.2019}. multimedia/2016/Honduras/ {11.02.2019}. 9 Frontline Defenders [2019] ‘Front honduras-en.html> accessed 4 Nolte, K., Chamberlain, W., Giger, Line Defenders Global Analysis 2018’ {11.02.2019}. M. [2016] ‘International Land Deals accessed Reveals Extent of Environmental University of Pretoria accessed {11.02.2019}, p 10 IACHR [2016] ‘Violence, Inequality, Human Health’ accountability for climate honduras-en.html> accessed accessed {11.02.2019}. change’ accessed Country – Guatemala Recent developments in FAO’s accessed {17.02.2019} Gender and Land Rights Database’ FAO accessed {16.02.2019}.

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