Business and Human Rights
In June 2011, the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. It was the first time a UN intergovernmental body endorsed a normative document on the previously divisive issue of business and human rights. The Council’s endorsement effectively established the Guiding Principles as the authoritative global standard for preventing and addressing adverse impacts on human rights arising from business-related activity.
Within the mandate of the UN Working Group on the Issue of Human Rights and Transnational and other Business Enterprises is giving special attention to persons living in vulnerable situations, such as indigenous peoples.
Risks of adverse human rights impact affecting indigenous peoples in connection with business operations
International human rights law recognises that indigenous peoples have historically been, and remain, victims of grave injustice, ranging from involuntary relocation to acts of genocide, and that these injustices warrant reparation by means of restitution, compensation, satisfaction or others. Such human rights violations have been perpetrated both by state and non-state actors. To this day, the overall social and economic marginalisation of indigenous peoples limits their ability to successfully assert their rights.
In the labour sphere, for example, indigenous peoples are among the groups most at risk of being subjected to various forms of forced labour. Furthermore, while they constitute approximately five percent of the world’s population, indigenous peoples account for around 15 percent of the world’s poor.
The material and spiritual well-being of indigenous peoples is closely connected to their lands and territories. Because of this special relationship, developments or investments undertaken on indigenous peoples’ lands often affect their right to maintain their chosen traditional way of life and with their distinct cultural identity. This circumstance has been acknowledged in the jurisprudence of different human rights treaty bodies.
The extractive sector
Today, in Latin America, Africa, Asia, but also in Europe, North America and Russia, resource extraction is having a severe impact on indigenous peoples’ rights to lands and resources, a healthy environment and culture. A survey undertaken by the Special Representative, Professor John Ruggie, on reported business-related human rights abuses in 2006 found that:
“The extractive industries also account for most allegations of the worst abuses, up to and including complicity in crimes against humanity. These are typically for acts committed by public and private security forces protecting company assets and property; large-scale corruption; violations of labour rights; and a broad array of abuses in relation to local communities, especially indigenous people.”
Another area of major concern are large-scale land acquisitions or “land-grabbing”, for instance, for palm oil and other plantations, which are displacing indigenous peoples through either forced resettlement or economic pressure. These occurrences are frequently associated with serious abuses of civil and political rights, and often involve threats to the right to life and bodily integrity.
Sometimes, the remoteness of their territories aggravates the risk of conflict, violence and impunity, as law enforcement and administrative oversight may be weaker and corruption more prevalent. Given the lack of civil society observers, there is less deterrence against the use of military or paramilitary force.
Gender, age and sex-related discrimination
In addition, certain members of indigenous peoples are even more vulnerable to human rights abuses in relation to business activities. These include indigenous women, who are often subjected to multiple forms of discrimination based on their gender and race/ethnicity to the extent that their status has been described as that of “third class citizens”. In some situations, economic development offers opportunities for some indigenous women to advance their economic and social status.
However, in many other instances, it deprives indigenous women of their existing livelihood. Generally, in poverty-affected rural areas, women tend to be in charge of most of the food production. They grow most of the crops for domestic consumption and are primarily responsible for preparing, storing and processing food. They also handle livestock, gather food, fodder and fuelwood and manage the domestic water supply. Deprivation of land and territories, forced relocation etc. therefore often affects indigenous women in a particularly severe manner and jeopardizes the food security of affected communities.
Social changes associated with the arrival of large business enterprises may also increase their vulnerability to abuse and violence and undermine their social status. Further groups at risk of multiple discrimination include indigenous children and youth, the elderly, indigenous people with disabilities and LGBT people.
Another way of describing the experience of indigenous peoples would be as “cumulative” discrimination, since they are simultaneously affected by a variety of human rights risks which individually affect other groups: such as small peasants, who are affected by land-grabbing and eviction; such as seasonal workers, who are often excluded from the regular labour market; such as the landless, who are denied legal title to their means of existence; and such as ethnic minorities, who are often targets of racial discrimination.
Legal instruments that defines indigenous peoples’ human rights
International human rights bodies and courts have consistently reaffirmed the central significance of two instruments that reflect a global consensus with regard to the definition of indigenous peoples’ rights.
The ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries of 1989 sets out rights to consultation, participation and consent, the right to their own social organisation and political institutions, as well as rights to lands, territories and natural resources.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on 13 September 2007, acknowledges indigenous peoples as collective rights-holders endowed with the right to self-determination, by virtue of which they freely determine their economic development (Art. 3), the right to autonomy in matters relating to their own internal and local affairs (Art.4) and the right to determine their priorities for exercising their right to development (Art.23). As a consequence of the right to self-determination, certain actions, such as measures affecting their ancestral territories and livelihood, are not permissible without their Free, Prior and Informed Consent (FPIC).
The UNDRIP and the Convention 169 are fully compatible and reinforce each other. In addition, the core conventions of the International Labour Organization have specific applications with regard to indigenous peoples. These include the conventions on forced labour (ILO C29 and ILO C105) and discrimination (ILO C111).
Under the premise of ensuring non-discrimination, UN treaty bodies have, in General Comments, stressed the obligation of states to devote special attention to indigenous peoples. This concerns inter alia the fundamental right to self-determination (ICCPR and ICESCR common article 1) from which their right to cultural, social and economic development flows, the right to housing, which implies the right to be protected against forced eviction, the right to water and the right of indigenous children to enjoy their own culture, practise their own religion and language, along with the use of traditional territory and the use of its resources.
The Working Group on the issue of human rights and transnational corporations
In June 2011, the UN Human Rights Council decided to establish a Working Group on the issue of human rights and transnational corporations and other business enterprises (the Working Group) with a mandate, inter alia, to promote the effective and comprehensive dissemination and implementation of the Guiding Principles worldwide.
Every year, the Working Group organises a Forum in Geneva, where businesses, states and civil society can meet and discuss the challenges and way forwards in implementing the UN Guiding Principles on Business and Human Rights. Before the Forum, the indigenous peoples attending usually organises a caucus and a preparatory meeting.