The EU Corporate Sustainability Due Diligence Directive proposal and protecting human rights defenders
Initial reflections
Reprisals against human rights defenders, related to business, are sadly very common. In 2020, Front Line Defenders recorded the killings of 331 defenders, and the Business and human rights resource centre recorded over 600 attacks against human rights defenders working on business-related human rights issues – ranging from judicial harassment to death threats and violent attacks. The impact of these reprisals are significant –for many companies reprisals against defenders are one of the most salient human rights issue they will have to consider during the HRDD process – particularly for companies with links to the extractive and agribusiness sectors which are regularly recorded as the most dangerous sectors for defenders.
We also know from the Business & Human Rights Resource Centre’s research that a lack of meaningful engagement can lead to reprisals. The BHRRC found in 2020 that of the 604 attacks against HRDs raising business related human rights abuses more than 1/3 stemmed from a lack of consultation or the failure to secure the free, prior and informed consent of affected communities.
On Wednesday 23rd February 2022 the European Commission released a proposal for the Corporate Sustainable Due Diligence Directive which lays out a requirement for EU companies and companies operating in the EU to conduct human rights and environmental due diligence. The proposal is available here in English. Despite the stark reality described above, the proposal did not include all the recommendations several of us made [1] following the consultations with over 100 human rights defenders in all regions last year last year – though there are some positive elements in the proposal.
The European Parliament and the Council of the European Union now have the opportunity to include bolder language on ongoing and mandatory stakeholder engagement in a meaningful, effective and safe way at all stages of the mandatory human rights and environmental due diligence process, and on addressing reprisal risk faced by human rights defenders. The undersigned organizations provide their analysis of the proposal and what needs to change for the final legislation to better protect human rights defenders [2]:
– Reference to human rights defenders or the UN Declaration on human rights defenders: Currently the draft Directive does not reference human rights defenders or the significant risks they face for speaking out about business-related human rights impacts. The Directive should reference the UN Declaration on human rights defenders as well as name human rights defenders as key stakeholders in human rights and environmental due diligence (HREDD).
– No obligation to prevent reprisals against human rights defenders: There is no acknowledgement of reprisal risk faced by human rights defenders, including affected persons and their representatives, trade unions and workers’ representatives representing individuals working in the value chain or CSOs active in the areas related to the value chain, or a requirement for companies to refrain from retaliation, or to address relation risks related to their businesses in their value chain.
– Stakeholder engagement is not obligatory: Although encouragingly the Directive references conducting stakeholder engagement with potentially affected groups when identifying potential/actual human rights impacts, when developing a prevention action plan and when developing a corrective action plan when adverse impacts are identified, it is not required. Engaging with human rights defenders is crucial to effective HREDD and should be required at these three stages.
Engagement should also continue throughout the monitoring phase of HREDD.
– Whistleblower protection is expanded: Positively, the CSDD directive expands the Whistleblower Directive to also cover persons who report breaches of this Directive. The Whistleblower directive requires the protection of persons who report breaches of Union Law against reprisals including intimidation, harassment, harm, dismissal or demotion etc. Expanding the Whistleblower Directive means the EU acknowledges people will face risk for speaking out about business-related human rights abuses; however, the Directive only applies to workers, contractors, etc. and does not apply to human rights defenders who face significant risk for reporting breaches in EU law. Further provisions on the protection of human rights defenders are needed.
– Indigenous Peoples’ rights are not mentioned: The directive references the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) but does not require companies to respect the self-determination of Indigenous Peoples, or their right to give or withhold their free, prior and informed consent as required under international law, and enshrined in ILO Convention no. 169, which exceeds the right to a mere consultation. The Directive should make clear FPIC and the rights of Indigenous Peoples must be respected.
– Burden of proof is not reversed: The current draft of the Directive does not reverse the burden of proof meaning human rights defenders would be responsible for proving that a company had not effectively conducted HREDD in order to bring a case against them. This is a barrier to remedy and a clause to reverse the burden of proof should be included.
– Complaints procedures are required: We are pleased to see that companies are required to develop complaints mechanisms which are accessible to civil society, however there is no acknowledgement of reprisal risk related to complaints or a requirement to manage this risk, and defenders are not explicitly mentioned as stakeholders.
– Criminal liability is not included: Although we are pleased to see the inclusion of administrative sanctions and civil liability, criminal liability should be established in cases related to severe forms of retaliation (e.g. bodily harm or fatalities).
– Entire value chain is included: It is promising to see that the HREDD responsibility covers the entire value chain as many reprisals against human rights defenders occur at the level of natural resource extraction for example, but limiting requirements to “established business relationships” could be problematic, as could the use of “contractual clauses” to cascade requirements down the supply chain.
– Complementary guidance on defenders should be created: We are pleased to see the European Commission commit to developing guidelines for specific sectors or on specific adverse impacts. We strongly advocate that guidelines on assessing and addressing reprisal risk and on conducting stakeholder engagement in a safe and meaningful manner are created. The proposal also references creating and supporting tools such as hotlines, databases and training to help companies implement the directive. We urge that among the databases to be considered as relevant for the implementation of the directive are those that compile attacks on human rights defenders, such as the one maintained by the Business and Human Rights Resource Centre, the Front Line Defenders’ Memorial, the ALLIED’s Global database of attacks on land and environmental defenders, etc.
– Public enforcement: It is positive that oversight bodies will have to be established in Member States but it crucial that they are required to manage the risk of retaliation against those raising complaints, including human rights defenders, including by ensuring staff are sufficiently resourced/knowledgeable to handle reprisal risk and by having a specific policy on identifying and address reprisal risk.
– Scope: As well as the scope of the legislation covering only a very small number of companies, we are also concerned that the list of high risk sectors does not include the renewable energy sector or to infrastructure related projects which are linked to high levels of reprisals against human rights defenders (particularly those fighting for land and environmental rights).
[1] For further information about recommendations to the European Union, read our briefing Hearing the Human and Front Line Defenders’ briefing Preventing reprisals against Human Rights Defenders through Effective Due Diligence Legislation.
[2] Please note this is a preliminary analysis, and we will be providing more specific recommendations in due course, in particular with regard to the Whistleblower Directive Specific analysis on the gaps related to Indigenous Peoples, including indigenous human rights defenders, is also forthcoming.
Signed,
FrontLine Defenders
Business and Human Rights Resource Centre
Prabindra Shakya, Community Empowerment and Social Justice Network (CEMSOJ)
Eduardo Villarreal, ProDESC (Proyecto de Derechos Económicos, Sociales y Culturales – Mexico)
ProDESC, Proyecto de Derechos Económicos, Sociales y Culturales – Mexico
Eva Maria Okoth, Natural Justice
Nicolas Avellaneda, Fundación Plurales
Malena Wåhlin, Swedwatch
Mary Ann Manja Bayang, Indigenous Peoples Rights International
Swedish Society for Nature Conservation
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