Less Panels, More Action! Reflections on the Asia Pacific Responsible Business and Human Rights Forum
The UN Responsible Business and Human Rights Forum for the Asia-Pacific region took place last week in Bangkok and what struck me most was rights holder frustration and a desire for less talk and more action. Perhaps this is the natural outcome of a Business and Human Rights Forum devoted to access to remedy, which has remained a huge challenge for communities seeking justice for corporate human rights abuses in the region. Shrinking civic space, attacks on human rights defenders, and the marginalization of Indigenous people and migrant workers were some of the challenges highlighted during Forum.
Many rights holders and CSO representatives expressed that, despite positive commitments, the experiences of the people impacted by corporate human rights abuses demonstrate a massive gap between policies on paper and what is happening on the ground. Within that overall theme, I’ve collated what stood out to me from their presentations, comments and questions during the Forum sessions I attended.
Accountability and remedy for corporate human rights abuses is either non-existent, or inadequate and difficult to obtain.
The severity of challenges to obtaining remedy were highlighted in a side session, Asserting Remedies, Justice and Corporate Accountability: Grounds for Local, National, Cross-border and Transnational Organizing, co-sponsored by Just Ground, EarthRights International, and International Rivers, among other CSOs. EarthRights’ Mekong Legal Director, Ben Hardman, and an activist from Myanmar (whose name is left out to protect her security) described the human rights abuses and environmental destruction taking place due to mining of rare earth minerals in Kachin State, Myanmar. The mines are in areas of active conflict that are controlled by non-state actors and where no domestic legal framework is currently available to hold the mining companies accountable. Opaque supply chains have made it difficult to locate the companies buying rare earth minerals from Myanmar, and those that have been identified have so far refused to remedy the harms.
“There is no point of talking about this here when the government is not listening.” - Bhanu Tatak
Image: Bhanu Tatak, Legal Advisor for SIFF (Siang Indigenous Farmer’s Forum and Co-Founder of Dibang Resistance and Gary Lee, Southeast Asia Program Director for International Rivers.
Credit: Chalefun Ditphudee, EarthRights International
In the same session, Bhanu Tatak, who has been honored for work to protect the ecosystems and cultures of India’s upper Brahmaputra River, highlighted that, in India and elsewhere, governments are not respecting laws on the books, and are not acting in accordance with the norms set out in the UN Guiding Principles on Business and Human Rights. A co-panelist, legal consultant Will Ellis, described the 16-year struggle of villagers in Koh Kong, Cambodia to receive remedy for land confiscated to create a industrial-scale sugar plantation. After pursuing multiple strategies, including trans-boundary litigation against the multinational companies that purchased the sugar, villagers finally received a settlement. But for many who had incurred crushing debt while awaiting remedy, it was too little, too late.
Given the range of challenges highlighted in this one panel - breakdown in the rule of law, state failures to implement or follow existing laws and norms, difficulty in identifying actors in the supply chain, time consuming litigation and mediation processes - it’s no surprise that many rights holders and CSOs at the Forum called for legal reforms that would make it easier to sue and secure remedy from companies causing or contributing to human rights abuses.
Assassination, threats, criminalization and judicial harassment continue against human rights defenders.
Many rights holders spoke of the threats environmental and human rights defenders face when they try to protect their lands and natural resources. For example, at a panel on Righting Wrongs: Exploring Pathways to Community-led Remedies, an environmental human rights defender from the Philippines recounted how he had been abducted and harassed for this work, and shared stories of fellow human rights defenders who have been killed or jailed or have faced ongoing intimidation and harassment for their work speaking out against corporate wrongdoing and defending their communities.
States and business enterprises need to respect rights holders’ knowledge and include them in decision making on matters that affect them - including the design of grievance mechanisms and appropriate remedial measures.
Nearly every rights holder who spoke addressed the need to respect their perspectives and knowledge. Many emphasized that their expertise and perspectives as rights holders offer solutions on matters like protecting migrant workers, just transition and natural resource management, but that companies and governments are too often unwilling to listen. For example, during a consultation session on participatory development, a participant shared, “Indigenous knowledge is not respected. We know about the sea. We are denied access to remedy because the court does not accept our evidence,” and the statement resonated with me as an example of how epistemic injustice can thwart access to remedy.
Several indigenous speakers called on governments to respect indigenous people’s self-determination and their right to free, prior and informed consent (FPIC) before adopting or implementing measures that may affect them. Bhanu Tatak, for example, expressed that it has “almost become normalized” that Indigenous people are not consulted when projects that affect them are implemented, and instead they are only offered compensation for their land. Several speakers at a panel on Indigenous Peoples' Perspectives on Access to Remedies and Justice specifically mentioned that Indigenous people’s traditional justice systems should be taken into account when designing grievance mechanisms.
More support is needed to prevent corporate human rights abuses - and this includes funding for grassroots and rights-holder-led responses.
Many people emphasized that more attention should be placed on prevention and providing support for communities. During the consultation on participatory development, for example, a Maori woman noted, “People are overwhelmed surviving. We are all exhausted.” She called for more attention to creating an enabling environment by addressing barriers to participation — including poverty, education deficits, censorship and societal pressure to remain silent.
“Constructive dialogue can’t happen without a shift in the power dynamics. There is no dialogue when money talks.” - Aaron Pedrosa
Image: Attendees of the session Asserting Remedies, Justice and Corporate Accountability: Grounds for Local, National, Cross-border and Transnational Organizing
Credit: Chalefun Ditphudee, EarthRights International
Others called for support for legal empowerment training, particularly for indigenous women and youth, and increased access to legal and financial resources to implement community-led development projects. Several people highlighted the importance of organizing and building the power within communities to collectively demand their rights. This call for more support for communities resonated strongly with me, as Just Ground, Rights CoLab, Namati, and the Grassroots Justice Network recently released a briefer making the case for establishing an independent, pooled fund – financed by companies and investors – to provide legal and technical support to communities responding to land-based investments.
It’s also in keeping with Just Ground’s mission to advance the goals of impacted communities resisting corporate or government activity that threatens or violates their human rights. Much of the business and human rights space is given over to best practice guidance and support for corporations and investors to respect human rights. My takeaway from the Forum is the urgent need for action that supports community-led responses to business and human rights challenges. Only then can we move from on from panel discussions to actually improving the situation of rights holders on the ground.