Business and Human Rights: Interpreting the UN Guiding Principles for Indigenous Peoples
By: Johannes Rohr & José Aylwin
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In June 2011, the UN Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (UNGP). These principles form the first globally-agreed framework for preventing and addressing adverse human rights impacts linked to business activities. While the UNGP do not introduce new human rights obligations, they do specify how human rights standards and state obligations that are set out in existing human rights agreements translate into the business context.
Indigenous peoples are among the most severely affected by business operations: oil and gas extraction, the construction of large dams or agricultural expansion for cash crop cultivation, among others, all result in a wide variety of human rights abuses such as the devastation of indigenous ancestral lands, forced evictions or extrajudicial killings by private security forces.
This document explores the potential of the UNGP to ensure that the rights of business-affected indigenous peoples are respected, protected and fulfilled. It examines the relationship between the UNGP and indigenous peoples’ substantive rights, in particular the rights to self-determination, land and resources, from which inter alia ensues the right to Free, Prior and Informed Consent.
Since the UNGP emphasise the need to ensure access to effective remedies, this report looks at existing remedy mechanisms at all levels and examines their effectiveness for indigenous peoples.
Finally, the report makes specific recommendations to states, business enterprises, international institutions and indigenous peoples to ensure that the UNGP can become an effective tool for preventing and mitigating the human rights violations suffered by indigenous peoples.
In 2012, the UN Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises chose the topic of indigenous peoples’ rights for its first thematic report to the UN General Assembly (UN Doc A/68/279, 7 August 2013).
Building on the UNWG report, this review aims to identify opportunities and potential benefits for indigenous peoples arising from the adoption and growing uptake of the UN Guiding Principles. It provides recommendations and guidance to the interested parties, in a rights-based manner, prioritising issues of concern raised by indigenous peoples and representatives during the drafting process.
Part 1 provides a brief overview of the origins and architecture of the Guiding Principles. It then summarises some of the main human rights challenges facing indigenous peoples and looks at their status under international law. The guiding principles are a framework designed to support protection and respect for human rights in a business context, consisting of three pillars: Pillar I, the State duty to protect human rights from abuse by business enterprises, derived from their obligations under international human rights law; Pillar II, the corporate responsibility to respect human rights; and Pillar III, which requires access to effective remedy for business-related human rights abuses, through judicial and non-judicial mechanisms.
Part II begins by considering Pillar I of this framework in more detail. The Guiding Principles place particular attention on the need to address gaps in legislation and in administrative practice with regard to protection from business-related human rights abuse. Here, the report identifies recognition of indigenous peoples as collective rights-holders and of the rights associated with the status as the principal regulatory gap that states are required to address.
The following chapter concerns the corporate responsibility to respect human rights under Pillar II of the UN framework and attempts to define minimum standards of what constitutes essential elements of a policy commitment and of human rights due diligence procedures concerning indigenous peoples.
The chapter on Pillar III seeks to identify the main opportunities for and obstacles to effective remedy for business-affected indigenous communities. The report considers the fundamental principles of access to remedy set out in the UNGP and finds that these should be premised on a clear understanding of an indigenous people’s right to remedy, as ensuing from international law and also that the right of indigenous peoples to redress is a necessary complement which is not explicitly reflected in the UNGP. Furthermore, the lack of guidance with regard to access to justice in the home states of transnational corporations is identified as a weakness of the Guiding Principles, noting that principles of international law as well as violations experienced by indigenous peoples warrant the provision of such access.
The report further explores the different categories of remedy distinguished within the UNGP – judicial, state-based, non-judicial and non-state-based non-judicial mechanisms. With regard to judicial remedies, it is noted that the lack of recognition of indigenous peoples as collective rights-holders under international law as well as the lack of judicial routes of redress for indigenous peoples’ grievances are among the main barriers preventing indigenous peoples’ equal access to justice.
Recognition and consideration of indigenous peoples’ customary law and traditional rights of disposal over commonly administered lands and natural resources is both a human rights obligation and a necessary precondition for effective remedy. Case law from different continents furthermore demonstrates that there are no obstacles, in principle, to the consideration of customary law.
Looking into non-judicial state-based remedy mechanisms, the report examines the OECD Guidelines for Multinational Enterprises. While instruments established under the OECD Guidelines are potentially useful remedies, they need to be equipped with a more robust mandate. Operational grievance mechanisms established at project level offer the advantage of ease of access but at the same time face the challenge of ensuring impartiality when they are operated by the same company against whom complaints are addressed.
A potential solution to such challenges is offered by increased use of indigenous peoples’ own dispute resolution mechanisms, which have strong yet untapped potential to restore harmonious relationships and achieve long-lasting culturally appropriate settlements, while at the same time strengthening indigenous peoples’ control over their own destinies.
The UNGP also establish a set of effectiveness criteria for non-judicial grievance mechanisms. These criteria are process-oriented, i.e. they focus on how grievances are dealt with but are indifferent to the outcome produced by a given process.
The report argues that the strongest effectiveness criterion for a grievance mechanism would be whether it produces human rights-compliant outcomes. This chapter therefore concludes by proposing a non-exhaustive set of outcome-oriented effectiveness criteria specific to indigenous peoples.
Finally, the report makes recommendations to states, business enterprises, indigenous peoples and other stakeholders for a more effective operationalisation of the Guiding Principles in relation to the human rights of indigenous peoples. The report concludes that such operationalisation should be prioritised by states, business enterprises and other duty-bearers as a matter of the utmost urgency, to ensure that current widespread and serious abuses of indigenous peoples’ human rights linked to business operations are brought to an end and their victims fully restored to justice.