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- INTRODUCTION
In contemporary societies, humanitarian, environmental, and climate crises, political instability, and pandemics like the recent one tend to exacerbate adverse impacts on human rights and inequalities. In this global context, defending human rights and protecting the environment has become an essential but dangerous and occasionally lethal task, because the people who carry it out lack defences and protections and are therefore highly vulnerable. This task is courageously undertaken by people (journalists, lawyers, academics, community leaders, and others) who, individually or collectively, put their bodily integrity and their lives at risk to encourage and advance the protection and realization of human and environmental rights, along with fundamental freedoms at the local, national, regional, and international levels.
More than twenty years on from the adoption of the landmark United Nations (UN) Declaration on Human Rights Defenders,[1] the difficulties and risks faced by those defending human rights and the environment have not diminished[2]—quite the contrary: the data paint a bleak picture of an exponential increase in the numbers and intensity of lethal and non-lethal attacks on human rights and environmental defenders (referred to as ‘HREDs’ from here on).[3]
Not even the COVID-19 pandemic managed to stem the tide of violence against HREDs. The restrictions imposed by States to deal with the spread of the virus also paralysed the human rights movement and deprived it of many of its monitoring and fact-checking tools. This worsened the situation for HREDs, because there was an increase in attacks on defenders who disseminated information about mismanagement of the crisis, or who simply continued to carry out their human rights work on the ground, while many States relaxed environmental and social requirements for business activities.[1]
The attacks faced by HREDs range from death threats to online harassment; abusive use of force in social protest demonstrations; restrictions on the exercise of freedom of association; undue restrictions on access to State-held information; dissemination of false news aimed at undermining their social or professional image or prestige; attacks on their property; theft or burglary; raids on or destruction of premises, equipment, and documents; physical assault; stigmatization before their own families or the community; baseless criminalization; arbitrary arrest; the imposition of unjustified or disproportionate fines; the dismissal of officials committed to human rights; abduction; torture; and murder.[2]
It is important to take into account the additional and differing threats and obstacles faced by particular groups within the category of defenders, such as trade union leaders, women human rights defenders, campesino and community leaders, indigenous and Afro-descendant leaders, and defenders of LGBTI people, of migrant workers and their families, and of the environment and land.[3] While women HR defenders often face the same risks as the stereotypical male defender, they face additional gendered, intersectional threats driven by stereotypes rooted in deeply entrenched heteropatriarchal ideas and norms about who women are and what they should be like. Both women HR defenders and their actions are often erased or their contributions marginalized. It is also common for issues related to sexuality to be used as a tactic for attacking women HR defenders: comments and insinuations about their sexuality, sexual orientation, and marital or reproductive status are used to discredit their work, while threats of violence, including sexual violence, are often used to silence them.[4]
Among the many risks faced by HREDs, however, the issue of killings has become a priority for the UN under the mandate of the current Special Rapporteur on the situation of human rights defenders, Mary Lawlor. The 2021 UN report Final warning: death threats and killings of human rights defenders notes that between 2015 and 2019, defenders were killed in at least sixty-four countries,[5] representing almost a third of UN member States, and that between 1 January 2019 and 30 June 2020, the Special Rapporteur sent communications to ten member States on the killing of one hundred defenders.[6]
As for the aggressors involved in attacks against HREDs, it is not only State agents and authorities that are involved, but various non-state actors too, including individuals, armed groups, organized crime groups, the media, and private business enterprises.[7] The evident direct and indirect involvement of business enterprises and corporate actors in human rights abuses against individuals and communities working to protect fundamental rights and freedoms should be noted.[8] This occurs because some of the attacks and risks faced by HREDs arise from opposing and filing complaints against business activities with a strongly negative impact on human rights and the environment, such as resource exploitation (timber, mining, and large-scale agribusiness), hydroelectric dams, and the development of other infrastructure.[9]
Given the background described above, this article starts from the premise that HREDs are key to promoting respect for human rights in the context of business activities. At the same time, business enterprises have a responsibility to respect defenders’ human rights. The objective of this article is to analyse the extent to which international instruments in the area of business and human rights, particularly the UN Guiding Principles (UNGPs) on Business and Human Rights and the draft of the international legally binding instrument on business and human rights, contribute to preventing and mitigating the attacks and dangerous situations faced by HREDs who oppose and file complaints against business projects and activities that harm human rights and the environment. To achieve this, the paper first examines the situation of people who defend human rights and protect the environment over corporate interests and profits. It then explores the current international framework for the protection of HREDs and its effectiveness in preventing business enterprises from being directly or indirectly involved in attacks against defenders. Thirdly, it analyses the extent to which the UN business and human rights framework currently takes HREDs into account. Finally, it reflects on the need to take HREDs into account in business and human rights instruments.