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Working Group B – Due diligence and access to justice

Introduction

Due diligence and access to justice is essential to prevent and address adverse environmental and human rights impacts of policies and projects. It is fundamental to ensure that those affected can seek justice and obtain redress before independent courts.

This Working Group will delve into best practices and challenges in the cooperation between private sector and civil society and in the State responsibility to protect. The link between exploitation of natural resources, human rights abuses and corruption will be explored. The Working Group will also discuss access to justice of those affected by environmental impacts of trade, investment and development activities, particularly indigenous peoples and other constituencies affected, like environmental and human rights defenders.

An overview of the current state of play between development, human rights and the environment will be provided as well as international and European actors in countries outside the EU. These reflections will help understand the positive and adverse impact business can have on the enjoyment of human rights and a healthy environment.

Panel Discussion I. Due diligence - emerging practices and challenges

Several countries have put normative frameworks in place to ensure human rights due diligence and responsible business conduct. Companies have an economic interest to secure compliance with human rights along their supply and value chains. Community-based expertise has a lot to bring to companies to ensure strong relations with local stakeholders, to help companies improve their risk assessments and mitigation measures as well as in seeking free, prior and informed consent for indigenous peoples.

Following the 2011 Corporate Social Responsibility strategy[1] and the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), the Commission prepared in 2015 a staff working document on the EU implementation of the UN Guiding Principles on Business and Human rights, which consists of three main pillars (state duty to protect, corporate social responsibility and access to remedy)[2]. In the 2016 Council Conclusions on Business and Human Rights, emphasis was placed on the significant role that business should play to achieve the SDGs. The Commission’s Agenda 2030 Reflection Paper published in January 2019[3], has explicitly touched upon Responsible Business Conduct and the 2019 Staff Working Document[4] that provides an overview of EC/EEAS actions to implement RBC/CSR and Business and Human Rights. In addition, the EU has also made efforts to mainstream a Rights Based Approach across its international development cooperation.[5]

At the international level, the landscape of regulatory measures, human rights due diligence and responsible business conduct remains fragmented and a global level playing field amongst all is not yet ensured. As part of its international cooperation, the EU also promotes accession to international mechanisms and standards such as the Extractive Industry Transparency Initiative (EITI).

Within this context, among the sectors which have an impact on the environment are extractive industries, forestry, energy and agriculture. The EU has adopted an approach based on promotion, monitoring and enforcement. Since 2018, large EU companies are required to disclose material information on key environmental challenges pertaining to their business activities[6]. In the mining and timber sectors, companies are required to publish information on all payments made to governments worldwide.[7] The EU is imposing supply chain due diligence for importers, traders and operators, including through certification/ licensing schemes[8]. The EU is in the process of reviewing its approach on due diligence in the supply chain.

Consumers in Europe and elsewhere are increasingly paying attention to responsible business conduct. This creates clear incentives for responsible business, particularly first movers in a given sector.

Panel Discussion II. Access to remedies including access to justice

This panel discussion will offer a platform to exchange views on the different options that are available to affected populations. The discussion will focus on concrete case that have been pursued in recent years.

Affected populations may have a range of possible options to seek remedies, including judicial redress, complaints to an ombudsman or the use of a corporate internal mechanism. Not all options are available in all situations so deciding which option could be most effective is always context-specific and may lead to a divergence of views within affected populations.

Whereas seeking redress before the formal justice system may potentially be the most appropriate mechanism, several obstacles can be encountered, such as determining which jurisdiction is most relevant, significant costs, lack of independence of the judiciary, burden of proof, access to information and standards as well as the possible reprisals that victims may face. Even if a court rule may be in favour of the victims, remedies may be limited and enforcement may remain challenging.

Since judicial processes can be costly for companies and damage their reputation, there has been some corporate interest in non-judicial mediation and other alternatives that we will discuss.

In some cases, actions can be successfully filed in the countries of origin of the companies or of the victims. A number of cases have been based on legislations based on the OECD convention on bribery of foreign nationals[9].

Concrete cases will be presented, identifying successes and challenges in judicial and non-judicial grievance mechanisms. This will be followed by an interactive discussion.

Interactive Working Group sessions

 

  1. Due diligence - emerging practices and challenges

[Tuesday 3 December, 11:00-13:00]

Leading questions

  • What are in your experience key requirements to ensure a thorough due diligence process?
  • In which ways can the state ensure due diligence by private sector actors?
  • What are the most effective incentives for companies to do thorough due diligence?
  • Are there innovative ways to include local stakeholders and maximise the effectiveness of due diligence processes?
  • How can the work of human rights defenders feed into the mitigation measures that corporate actors and states should conduct in the spirit of the UNGPs (report, mitigate, track and communicate)
  • In competitive business sectors that have an important environmental impact (extractive, agriculture, garment, timber), how much positive impact can benchmarking of companies efforts to conduct due diligence have?

Moderator:        Debbie Stothard (FIDH Secretary-General) –few introductory words (2 min)

Speakers (5-8 min):        Maximum five speakers, followed by moderated discussion.

  1. Luisa Ragher, EEAS Global 1, Setting the scene on what the EU is doing on the topic: EU legislation, actions under EU aid, opportunities for civil society, what we can take from their intervention etc).
  2. Olivier De Schutter, Université catholique de Louvain (UCL). What is best practice in due diligence, what are the standards that environmental HRDs should promote in their countries, what assessement has to be made of the legal framework?
  3. Elard Mawala, IPIS Research (Tanzania), Business and human rights issues in resource extraction and agriculture. Regulatory and non-regulatory initiatives for securing responsible business conduct, corporate human rights compliance and sustainable responsible business.
  4. Ingrid Thorsnes, Senior Adviser for the Council on Ethics for the Government Pension Fund Global
  5. Xavier Sol, Director, Counter Balance, Belgium

Resource person (note-taker): Sophie Kammerer

  1. Access to remedies including access to justice

[Wednesday 4 December, 14:30-16:00]

Leading questions

  • What are key elements for well-functioning non-state non-judicial grievance mechanisms or mediation
  • What are the best ways for partner countries and development partners to promote strong national judicial systems and laws that can guarantee victims fair and equal treatment of their claims?
  • What is the impact of the recent inclusion of environment in the HR framework (including and beyond rights for an healthy environment)?
  • What are the most successful grounds for filing lawsuits, e.g. adoption of recent legislations on right to healthy environment etc.
  • what are judicialremedies, available to expose and/or address those issues both in the countries where damages are done, or in the EU. Practical examples of successful cases in developing countries? Practical examples of successful cases in the EU? Example of regional human rights courts?
  • When all falls apart, what options are left for victims to claim their rights?

Moderator: Debbie Stothard

Speakers (5 -8 min):       Maximum of four speakers, followed by moderated discussion.

  1. Patrycja Pogodzinska, Project Manager, Legal Research, European Fundamental Rights Agency (FRA): presentation of the study on improving access to remedy at EU level
  2. Miriam Miranda, Honduras, OFRANEH, Director working with Garifuna communities faced with encroaching palm oil, energy, tourism developments on the Caribbean Coast of Honduras - leading organisation in defence of Garifuna land rights. ]
  3. Rizwana Hassan, Director of Bangladesh Environment Lawyers' Association
  4. Maya Barkhudaryan, Analyst, Civil Society Institute, Armenia. The role of environmental human rights defenders in identifying environmental risks and human rights impacts associated with the Amulsar gold mine project in Armenia.

Resource person (note-taker):  Sebastien Porter

Methodology

A list of guiding questions will be developed by the working group members before the middle of November. Each speaker will be invited to address a few but not necessarily all of these questions, in such a way that together the speakers address all of the guiding questions.

Each session will start with a conversation with the different panellists. Each speaker will have 5 -8 min each. The moderator will then invite questions and contributions from the floor.

The moderator will guide the participants towards the identification of ‘take-aways’ (conclusions and recommendations). Towards the end of the panel, the moderator will identify main take-aways and invite participants to validate them.

The moderator will be assisted by a resource-person who will record take-aways on a flip chart.

Background documents

The following documents can be accessed from the Conference website (http://www.eungoforum2019.eu, selecting the tab ‘Documents’ and then the tab ‘Due diligence, access to justice.

  • OECD Due Diligence Guidance for Responsible Business Conduct,
  • Improving access to remedy in the area of business and human rights at the EU level - Opinion of the European Union Agency for Fundamental Rights,
  • ECCJ and 80 civil society actors “A call for EU human rights and environmental due diligence legislation” (2019)
  •  ClientEarth and Global Witness legal briefing
  • 2019 Staff Working Document[10] on Responsible Business Conduct, Corporate Social Responsibility and Business and Human Rights

 

[1] https://ec.europa.eu/growth/industry/corporate-social-responsibility_en

[2] https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/swd_2015_144_f1_staff_working_paper_en_v2_p1_818385.pdf

[3]  https://ec.europa.eu/commission/sites/beta-political/files/rp_sustainable_europe_30-01_en_web.pdf

[4] https://ec.europa.eu/docsroom/documents/34963

[5] https://ec.europa.eu/europeaid/sites/devco/files/online_170621_eidhr_rba_toolbox_en_a5_lc_0.pdf

[6] https://ec.europa.eu/info/business-economy-euro/company-reporting-and-auditing/company-reporting/non-financial-reporting_en

[7] https://ec.europa.eu/info/business-economy-euro/company-reporting-and-auditing/company-reporting/public-country-country-reporting_en

[8] http://www.euflegt.efi.int/flegt-action-plan/; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32017R0821

 [9] http://www.oecd.org/corruption/oecdantibriberyconvention.htm

[10] https://ec.europa.eu/docsroom/documents/34963