Last week the European Parliament’s legal affairs (JURI) committee adopted its position on the proposed EU Corporate Sustainability Due Diligence Directive. Amid strong pressure, the text is a significant step towards ensuring mandatory human rights and environmental due diligence across the full value chain. It includes several important improvements and goes a long way towards aligning with the UN Guiding Principles on Business & Human Rights and OECD Guidelines for Multinational Enterprises.
However, as organizations working closely with Human Rights Defenders (HRDs) across the globe, we are concerned that the text, compared to the European Parliament (EP) Rapporteur’s draft, the human rights, development and environment committees’ opinions and other positions, constitutes a missed opportunity to explicitly recognise and protect defenders as affected and legitimate stakeholders.
Defenders play a critical role in protecting human rights and the environment, but their work exposes them to enormous risks, too often resulting in reprisals and tragically the loss of life.
In 2022, Front Line Defenders and its HRD Memorial partners documented the death of 401 defenders worldwide – 48% of whom were HRDs defending land, environmental and indigenous peoples’ rights.
Business & Human Rights Resource Centre (BHRRC) documented over 4,700 attacks on defenders related to business activities since 2015, which highlights this is a salient human rights issue in many business sectors. In a report released on Wednesday, BHRRC shows that 555 attacks took place in 2022 alone, revealing that on average more than 10 defenders were attacked every single week for raising legitimate concerns about irresponsible business activity. Indigenous defenders and communities continue to face disproportionate risks. Additionally, BHRRC data shows that approximately 1/3 of all attacks in 2020 stem from a lack of consultation or the failure to secure the free, prior and informed consent (FPIC) of affected indigenous peoples and affected local communities with customary tenure rights. In many cases, attacks can be traced directly back to business actors: for example, strategic lawsuits against public participation (SLAPPs) are one well-documented tactic used by businesses to stop people raising concerns.
At the same time, while there is growing business acknowledgement of HRDs as affected stakeholders, the particular risks and impacts they face are still not sufficiently recognised by many EU companies. The 2021 UN Working Group on Business & Human Rights’ authoritative guidance clearly states that lead firms may cause, contribute to or be linked to such impacts across their value chains.
In light of the above, the final JURI text, despite promising elements regarding stakeholder engagement, reference to the Aarhus Convention and FPIC, as well as removal of some obstacles to access to justice, misses out on covering human rights defenders more comprehensively and explicitly beyond ‘other stakeholders’ to be consulted. There must be no ambiguity regarding the urgency of engaging with HRDs and ensuring their protection from retaliation and other adverse impacts as affected stakeholders.
A recent Front Line Defenders report documented three case studies – from Colombia, India and Uganda – demonstrating how HRDs and their communities would be better protected by a strong EU Directive that explicitly places defenders at its core.
“For ILC, the protection of land and environmental defenders remains a top priority. The draft EU law is a huge step forward for communities across the globe. But to be effective it must be explicit in protecting Human Rights Defenders and how one can enforce those rights in case of violations”, said one of the signatories, Eva Maria Anyango Okoth, HRD from Kenya, and the Senior Program Officer for Africa at the International Land Coalition (ILC).
As the negotiations move to the next step, the plenary vote in the European Parliament and then the trilogue negotiations, we reaffirm that to fully protect and recognise HRDs, it is critical that the legislation avoids ambiguities in protections and retains strong language that had been included in earlier drafts, including the EP Rapporteur’s proposal and the opinions from the human rights, development and environment committees. At a minimum we recommend that the final text of the Directive as agreed by co-legislators:
- explicitly includes Human Rights Defenders as affected stakeholders in the corresponding stakeholder definition and covers them as such in provisions on mandatory stakeholder engagement, grievance mechanisms and non-retaliation;
- similarly recognises organizations protecting human rights and the environment in the same definition and provisions; and
- includes the UN Declaration on Human Rights Defenders, which breaks down key human rights for the specific context of defenders, in the Annex, along with important additional references e.g. to the Escazú Agreement.
We also point to concerns outlined by civil society organizations about the text’s remaining shortcomings regarding access to justice and other areas, both for defenders and all other rightsholders.
Action Paysane Contre la Faim - Democratic Republic of the Congo
African Law Foundation (AFRILAW)
Agency for Turkana Development Initiatives (ATUDIS) - Kenya
Asian NGO Coalition for Agrarian Reform and Rural Development - ANGOC
AsM Law Office Indonesia and Accountability Sustainability Monitoring - Indonesia
BIRUDO - Uganda
Business & Human Rights Resource Centre
CeDHA - Ghana
CEE Bankwatch Network
Center for International Environmental Law (CIEL)
Center for Justice Governance and Environmental (CJGEA) - Kenya
Community Empowerment and Social Justice Network (CEMSOJ) - Nepal
COMPPART Foundation for Justice and Peacebuilding - Nigeria
Defenders in Development campaign
Environmental Defender Law Center
Environmental Defenders Collaborative
European Environmental Bureau (EEB)
Facilitation for Peace and Development - Uganda
Forest Peoples Programme
Foundation For Environmental Rights, Advocacy & Development (FENRAD) - Nigeria
Friends of the Earth United States
Front Line Defenders
Global Rights - Nigeria
Green Development Advocates - Cameroon
Human Rights International Corner (HRIC)
Indigenous Peoples Partnership (IPP) - Myanmar
International Group for Indigenous Affairs (IWGIA)
International Land Coalition Africa (ILC Africa)
International Service for Human Rights (ISHR)
Katiba Institute - Kenya
La Société Civile congolaise pour les Minerais de Paix / OSCMP - Democratic Republic of the Congo
The Lawyers' Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP) - Nepal
Lake Albert Children Women Advocacy and Development Organisation (LACWADO) - Uganda
Le Centre du Commerce International pour le Développement (CECIDE) - Guinea
Le Collectif des Organisations.de Défense des droits de l'homme et de.la.democratie/Coddhd - Niger
Leadership Initiative for Transformation and Empowerment (LITE-Africa) - Nigeria
The Marginalised Mirror - Namibia
Michel Forst, Special Rapporteur on environmental defenders under the Aarhus Convention
Oxfam South Africa
Pain aux Indigents et Appui à l'auto - Promotion (PIAP) - Democratic Republic of the Congo
Peace Point Development Foundation (PPDF) - Nigeria
Programme d Intégration et de D éveloppement du peuple Pygmée au Kivu (PIDP) - Democratic Republic of the Congo
Proyecto de derechos Económicos Sociales y Culturales A.c. (ProDESC) - Mexico
Program for the heritage of Ogiek and mother earth (PROHOME) - Kenya
Project on Organizing, Development, Education, and Research (PODER) - Mexico
Protection des écorégions de miombo au Congo (PremiCongo) - Democratic Republic of the Congo
Rainforest Action Network
STAR Kampuhchea (SK) - Cooperation Committee for Cambodia
Sustainable Holistic Development Foundation (SUHODE) - Tanzania
Witness Radio - Uganda
Worthy Association for Tackling Environmental Ruins in Nigeria - Nigeria
Zimbabwe Environmental Law Association (ZELA) - Zimbabwe