Environmental Defenders: Filling The Legal Vacuum

Protecting the environment from human activities is more dangerous than ever and rightfully gains increasing media coverage – now it is time for the law to follow.

Numerous NGOs and media organizations, such as Global Witness and The Guardian, conduct extensive research and reporting on the killings and human rights abuses of environmental defenders. Even though the role of global corporations’ are gaining attention, domestic and international law are falling behind, hindering the possibility of holding corporations accountable.

The killing of environmental defenders has doubled in the past 15 years, from two to four per week, while the human rights abuses against environmental defenders are estimated to be 20 to 100 times higher per one killing. A wide array of causes are to blame – such as land disputes and local conflicts, adverse governance, and corruption. However, the root cause is environmentally degrading human activities, which forces people to defend the environment and their communities.

Global corporations play a large part, either directly or indirectly, in such environmentally degrading activities. They can create employment and economic growth in developing countries, which leaders, politicians, and business people desperately want. However, approximately a third of the cases where global corporations create environmental degradation have a corresponding impact on human rights. Global corporations – involved in activities such as mining and extractives, agribusiness, water and dams, and logging – drives and further exacerbates existing local and national conflicts in developing countries.

With increasing coverage, more people are aware of the problem than ever. What has received less attention is the current legal vacuum environmental defenders find themselves in. A legal vacuum that can and must be addressed.

Global corporations have grown quickly in the past years, and the law has not fully acknowledged the link between human rights violations, environmental harm, and global corporations. The activities governing global corporations regarding human rights abuses are indirect, and often require incorporation within domestic law. The impact of this creates problems for countries that depend on the business and economic growth global corporations can bring to low-income and emerging economies.

Within international law, the matter is worse. The existing treaties for global corporations refer to trade and there is currently no internationally binding legal obligation for global corporations in international law regarding involvement in human rights abuses. Hence, domestic law rarely holds them responsible, while international law has not yet adopted any treaty regarding global corporations and human rights, allowing global corporations to operate in a legal vacuum.

Disputing the effectiveness of international law is easy. Treaties and international law are often seen as quite abstract since there is no direct enforcement like that in domestic laws. Sanctions and shaming is the most used direct enforcement and often requires collective action.

While sanctions and shaming might not have the intended effect when used against authoritative leaders and dictators, global corporations require international support for their business. Therefore, international legal instruments can serve as effective tools against global corporations involved in human rights abuses since they severely undermine their main goal – profit-making.

In the past, numerous attempts to hold global corporations accountable for human rights abuses have failed. The UN Commission on Transnational Corporations was created in the 1970s, given the task to draft a Code of Conduct for Transnational Corporations. Negotiations were stalled and eventually abandoned in 1992. The UN Global Impact, a soft-law guideline, gained strength at the beginning of the 21st century – but is voluntary and does not incorporate any hard-law component.

The attention NGO’s and the media has generated around the horrific treatment of environmental defenders serves as an opportunity to create a treaty, and it is long overdue.

Discussions and actions to create a treaty holding global corporations and other business enterprises accountable for involvement in human rights abuses started again on June 26, 2014. The Human Rights Council adopted the resolution 26/9, and on July 16, 2019, a draft was published at the Office of the United Nations High Commissioner for Human Rights. This time it cannot be left in the negotiating stage.

The treaty draft is comprehensive, but past efforts show that without public and political support, and support from the private sector, the treaty will never come into force.

The treaty should also include and specify the need to protect environmental defenders. The current draft refers to environmental rights, but a section or paragraph explicitly mentioning environmental defenders should be incorporated to avoid confusion or conflicting interpretation of the treaty.

To avoid lobbying against such a treaty to gain the upper hand, especially from powerful actors who might feel that a treaty will undermine their business interests, more awareness of the current negotiations, drafts, and solutions are crucial. With the increasing power of the environmental movement, the prospects of a treaty incorporating environmental defenders and global corporations’ role are brighter than ever. With enough support and action from the public, politicians, and the private sector, fair treatment of environmental defenders can be achieved.

The environmental defenders protect the environment; it is now time for the law to protect them.