What Can Be Done to Incentivize the Private Sector to Respect and Protect Civic Freedoms?

By: Ana Zbona

In late April 2018, 68 institutional investor groups that participate in the Investor Alliance for Human Rights called on companies to make commitments to protect human rights defenders, and, specifically, to take immediate action to help protect defenders currently at risk in the Philippines. Investors argued that companies and financial institutions have a responsibility to review their operations, supply chains and policies to identify real and potential negative impacts on defenders, and take meaningful action to address them.

What prompted this group of investors to speak out on this issue and how should companies respond?

Investors realized that growing threats to civic freedoms and civil society—the CIVICUS Monitor reported serious systemic threats to civic space in 109 countries in 2018 and the World Economic Forum has recognized this phenomenon as one of the biggest threats to global stability—are a material risk for them and for the companies they invest in. In doing so, they joined a growing number of human rights experts, intergovernmental institutions, civil society groups, and businesses, which have been increasingly concerned about attacks on human rights defenders related to business, and the role of business in responding to this trend. Chief among those raising alarm bells have been the UN Special Rapporteur on the Situation of Defenders, through his recent report, and the UN Working Group on Business and Human Rights, which has made it a focus of their work.

What should businesses care about and why?

Both businesses and governments should take this call by investors seriously. The rule of law and freedom of expression, association, and assembly are not only essential to the respect for and protection of human rights, good governance and accountable institutions, but also to predictable, profitable and sustainable business environments in which companies thrive and economies prosper. These ideas are reflected in SDG 17 on strengthening global partnership for sustainable development and SDG 16 on peace, justice, and strong institutions.

The Business and Human Rights Resource Centre’s database of attacks against human rights defenders has recorded over 1000 attacks and threats against defenders in the last three years—including a 32% increase from 2016 to 2017. In the most dangerous and conflictual sectors and contexts, businesses can be “perpetrators” but also “beneficiaries” of attacks on defenders. In the context of growing nationalism in many countries, local and international civil society actors campaigning for protection of natural resources, land rights, or higher wages are often portrayed as enemies of national progress and economic development. This deepens an “us vs. them” mentality that makes these defenders especially vulnerable to abuse. Among them, women, indigenous people, and defenders belonging to marginalized ethnic and racial groups are facing specific, and often the greatest risks.

The most dangerous activities are often those that focus on land-intensive industries, including mining, agribusiness, oil and gas, renewable energy, and forestry. Defenders working to address human rights abuses in information and communications technology and garment manufacturing also face risks. The growing trend of attacks on activists protesting agribusiness and renewable energy development is particularly concerning.

In 42 percent of cases globally, judicial harassment was used in an attempt to suppress protests against business activities. Analysis of lawsuits shows that companies sued defenders in almost one third of cases. Collusion between companies and organized crime in attacks on defenders is also a dangerous trend that calls for in-depth investigation.

In terms of geography, the most dangerous countries for defenders and organizations raising concerns about business practice are in Latin America—especially Brazil, Guatemala, Colombia, Mexico, Peru, and Honduras. Philippines saw a marked increase in attacks and was the most dangerous country in Asia in 2017. However, human rights defenders face attacks globally, including in the United States and Europe.

Among the sectors most implicated in abuses, some are taking positive steps. The International Council on Mining and Metals, for example, recently released a statement in support of defenders and civic freedoms. But too many are lagging behind.

Companies recognize the benefits of pursuing common goals

While the situation is worsening in many ways, there is also evidence that relations between companies and civil society actors are changing and becoming more nuanced, sometimes in positive ways. As more companies embrace their responsibility for human rights impacts, companies, governments and civil society are becoming more accustomed to pursuing common goals, it becomes increasingly clear that business and civil society operate in—and benefit from—a shared space of common fundamental values, rights and standards.

Some companies and their CEOs recognize there is a common interest in protecting this shared space. In April 2018, for example, 200 companies that source garments, footwear, and travel goods from Cambodia, along with several European, U.S., and other major international associations, spoke out against escalating restrictions on political, civic, and media space in Cambodia. The coalition wrote to the Cambodian government saying that “restrictions on minimum wage discussions and lack of freedom of association will make Cambodia an unattractive and expensive place to do business because of increased reputational risks for brands sourcing from Cambodia, regular social unrest at workplaces…and potential trade tariffs…” They also demanded the government put an end to all forms of harassment against defenders in the country, including against Tola Moeun, a prominent labor organizer. This engagement came at least partially as a result of civil society organizations encouraging and working with brands, leading to the leveraging of business’s standing to strengthen the response to increased repression and closing of democratic and civil society space in the country. The Cambodian Ministry of Labor eventually requested the court to drop charges against Tola Moeun.

Nordic companies and business associations have also recently responded strongly to human rights defender Andy Hall receiving a 10 million Thai Baht (approximately $310,600) civil verdict in a defamation case against him. Nine Nordic food companies said the verdict against Andy was harmful to Thailand as an exporting country, and S Group released a public statement of support and donated 8,000 Euros to help Andy to submit an appeal. AMFORI and the Ethical Trading Initiative stressed the “negative impact” of the verdict on the “implementation of the UN Guiding Principles on Business and Human Rights in [the] country” and on “damaging Thailand as a brand" Through this type of public and material support, companies can counter the damage smear-campaigns and lawsuits may have on the civil society actors they cooperate with. Laggard brands and business associations must learn rapidly from these leaders.

Nevertheless, companies are still not doing enough to prevent the conflict and protests over the projects that often provide the excuse for government attacks on human rights defenders. Despite evidence that lack of positive interaction with local communities and activists significantly increases the risk of negative community impacts as well as potential conflict, not enough action is taken by companies to stimulate this critical engagement. The Corporate Human Rights Benchmark found that in the agriculture, apparel and mining sectors, for example, structures designed to engage with stakeholders, including civil society actors, rarely exist: 84 percent of companies had no framework for engagement; and 91 percent of companies had no systematic ways of involving users in the design or performance of their human rights grievance mechanisms.

The Way Forward

As Michael Ineichen of International Service for Human Rights has put it: “A holistic and consistent interpretation of the United Nations Guiding Principles on Business and Human Rights (UNGPs) must contain a focus on [defenders] and the role of business in both targeting and supporting them… Companies who want to remain at the forefront of implementing the UNGPs, and to get ahead of the game in terms of future legislative and policy developments, should become ‘champions for [defenders]’. They should strive to lead their sector or industry through developing progressive policy and practice in support of [defenders].”

Companies need to see civil society and defenders as partners in building sustainable business practices. Engagement with them needs to be viewed as an integral part of doing business in all sectors, and protection and expansion of civic freedoms a necessary component. These aspects must be taken into account in operational decisions and must be part of the core business model, not “siloed” in the corporate social responsibility division of companies.

As a first step, companies must ensure that they cause no harm to civil society actors overall and human rights defenders in particular in their own operations and supply chains. They also need to develop strategies to address the risk of closing space for civil society and shrinking civic freedoms for their processes and operations, evaluate the risk of action, and assess the risks of inaction in the protection of civic freedoms in countries in which they operate and source from. In many cases companies will likely conclude that the risks of inaction may be costlier in the long term than the risks of action. The Business Network on civic freedoms and human rights defenders, supported by the Business & Human Rights Resource Centre, International Service for Human Rights and The B Team, will be releasing a guidance document in late May that will make the business case for engagement as well as highlight best practices and case studies.

As the Special Rapporteur on Human Rights Defenders recommends, governments also need to incentivize positive company behavior, including by explicitly mentioning the role of business in legislation designed to protect civil society actors; by effectively implementing their international obligations with regard to free, prior and informed consent; and by requiring mandatory company due diligence that includes a focus on defenders. They should also create or implement access to information laws that facilitate the work of defenders, such as by requiring the public disclosure of information about corporate structures, as well as stronger National Action Plans on business and human rights that help protect defenders.

Everyone benefits from a shared space of common fundamental freedoms. Civil society, which is hit the hardest by attacks on freedom of expression, association, and assembly, can benefit from support from business to protect and expand these freedoms. In the midst of growing repression, if civil society calls on such powerful potential allies and if businesses consistently answer those calls, there is an opportunity to work closer together to protect common values and create a more sustainable global economy.

Ana Zbona is a civic freedoms & human rights defenders project manager at the Business & Human Rights Resource Centre, and is a member of the International Consortium on Closing Civic Space’s (iCon’s) Advisory Group.