The International Corporate Accountability Roundtable

Compendium for U.S. Civil Society Consultation of the United Nations Working Group on the Issue of Human

Rights and Transnational Corporations and Other Business Enterprises

Washington D.C. Georgetown University Law Center

April 23, 2013

What is the International Corporate Accountability Roundtable?

The International Corporate Accountability Roundtable (ICAR) is a coalition of human rights, environmental, labor, and development

organizations that creates, promotes and defends legal frameworks to ensure corporations respect human rights in their global operations.

For more information about our work and our campaigns, visit

www.accountabilityroundtable.org.

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The International Corporate Accountability Roundtable and the Human Rights Institute at Georgetown Law Host:

Civil Society Consultation with the UN Working Group on the Issue of Human Rights

and Transnational Corporations and Other Business Enterprises

9:00 a.m. – 12:30 p.m. Tuesday, April 23rd, 2013

12th Floor, Gewirz Student Center

Georgetown University Law Center 600 New Jersey Avenue Northwest

Washington, DC 20001

Introduction Amol Mehra, Director, International Corporate Accountability Roundtable Rachel Taylor, Director, Human Rights Institute at Georgetown University Law Center Members of the United Nations Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises

Pillar I: State Duty to Protect A. Slavery, Trafficking, Labor

Bama Athreya, ICAR Expert on Government Procurement Project Karen Stauss, Director of Programs, Free the Slaves

B. Transparency and Disclosure Corinna Gilfillan, Head of US Office, Global Witness Isabel Munilla, Director, Publish What You Pay

C. Burma Reporting Requirements Kathy Mulvey, Director, Conflict Risk Network

D. Indigenous Peoples Danika Littlechild, Legal Counsel, International Indian Treaty Council

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E. Reflections on Multi-Stakeholder Initiatives: the Voluntary Principles, Global Network Initiative, etc. Bennett Freeman, Chair, Advisory Board, Global Witness; SVP, Sustainability Research and Policy, Calvert Investments; former Deputy Assistant Secretary of State- Democracy, Human Rights and Labor Amelia Evans, Director, the Institute for MSI Integrity

Pillar II: Corporate Responsibility to Respect

A. Information and Communication Technology Rebecca MacKinnon, Director, Ranking Digital Rights

B. Food and Beverage Supply Chains

Chris Jochnick, Director of Private Sector Department, Oxfam America

Pillar III: Access to Remedy A. Judicial Remedy for Business and Human Rights violations in the United

States Marco Simons, Legal Director, EarthRights International

B. Non-judicial mechanisms Jonathan Kaufman, Staff Attorney, EarthRights International

Open Interventions John Richardson, Co-Director, Initiative for Human Rights in Business, Center for Human Rights and Humanitarian Law, American University Washington College of Law Rebecca DeWinter-Schmitt, Co-Director, Initiative for Human Rights in Business, Center for Human Rights and Humanitarian Law, American University Washington College of Law Steve Hitov, General Counsel, Coalition of Immokalee Workers Brian Finnegan, Global Worker Rights Coordinator, International Department, AFL-CIO Nick Pelosi, Corporate Engagement Assistant, First Peoples Worldwide Michelle Guelbart, Private Sector Project Coordinator, ECPAT-USA Michael Pates, Director, Center for Human Rights, American Bar Association Cathy Albisa, Executive Director, National Economic & Social Rights Initiative

Questions and Facilitated Discussion Lunch

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Index of Submissions I. International Corporate Accountability Roundtable C-5

II. First Peoples Worldwide C-12

III. World Organization Against Torture (OMCT) &

the International Federation for Human Rights C-15

IV. NGO Committee to Stop Trafficking in Persons C-17

V. Human Rights Advocates C-19

VI. Investors Against Genocide C-30

VII. International Indian Treaties Council C-32

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April 23, 2013

The Honorable John Kerry Secretary of State United States Department of State 2201 C Street, NW Washington, DC 20520

The International Corporate Accountability Roundtable (ICAR) is a coalition of human rights, environmental, labor, and development organizations that creates, promotes and defends legal frameworks to ensure corporations respect human rights in their global operations.

We are writing to share recommendations for actions the U.S. government should take—with continued leadership from the Department of State—to more fully protect human rights in relation to business. We would like to take this opportunity to acknowledge the efforts of the Department of State, including those efforts undertaken by former Secretary of State Hillary Clinton and former Assistant Secretary of State for Democracy, Human Rights, and Labor, Michael Posner, to strengthen the U.S. Department of State’s work on business and human rights.

This submission outlines a series of recommendations for action the U.S. government should take in line with the UN Guiding Principles on Business and Human Rights (UNGPs), which the U.S. government endorsed in 2011. Meeting the U.S. government’s human rights obligation to protect against human rights abuses involving business will require a range of robust measures over time; rather than providing an exhaustive list here, we have focused on a small number of concrete, actionable steps that we believe should be taken without delay.

In particular, we recommend that the U.S. government:

A. Develop a national implementation plan for the UNGPs; B. Use its regulatory authority to mandate human rights due diligence, including by exploring how

procurement laws could be structured to require human rights due diligence; C. Strengthen available remedies for human rights abuses involving business; D. Ensure that U.S. government institutions themselves act in accordance with human rights norms, including

with regard to official complaints mechanisms.

As background to these recommendations, we have included below a summary of steps taken by the U.S. government to date. We also describe throughout the letter ICAR initiatives that touch on some of the issues raised.

U.S. Government Actions to Date We read with interest the December 10, 2012, letter from Deputy Assistant Secretary Dan Baer to the United Nations Working Group on Business and Human Rights, which detailed U.S. government efforts to implement the UNGPs. It highlighted several laws, regulations, and policies that the Department considers to be consistent with the UNGPs, as well as government efforts to actively engage with internal and external stakeholders.

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For example, in 2012, the U.S. Department of State hosted three workshops tailored to the business, civil society and investor communities to foster discussion around implementation of the UNGPs. We welcome the initiative and commitment that the 2012 panels demonstrate. However, in future business and human rights activities we hope to see increased participation by representative labor unions and a more central and active role in the panels or forums for those groups that directly represent workers and other affected communities.

Outside of the UNGPs implementation work, the U.S. government has also sought to promote awareness and effectiveness of the OECD Guidelines for Multinational Enterprises and has strengthened the office of the National Contact Point (NCP) in the Bureau of Economic and Business Affairs (EB) by appointing dedicated staff and approving funds to support mediation through the Specific Instance procedure under the Guidelines. The U.S. government has also been actively involved in, and has developed initiatives promoting respect for, human rights in the extractive industries and private security industry, including the Voluntary Principles on Security and Human Rights (VPs), the Extractive Industries Transparency Initiative (EITI) and the International Code of Conduct for Private Security Service Providers (ICoC). The U.S. government has recently released its publication, “Reducing Child Labor and Forced Labor: A Toolkit for Responsible Businesses,” and an Executive Order on “Strengthening Protections Against Trafficking in Persons in Federal Contracts.” The Department of State also issued in 2012 draft “Reporting Requirements on Responsible Investment in Burma,” which, when finalized, will require human rights due diligence reporting for U.S. persons seeking to invest in Burma.

We are aware of further developments since the December 10 letter, such as the U.S. government’s release of its first public report on its efforts to implement the Voluntary Principles on Security and Human Rights.

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Recommendations While we recognize that the U.S. government has taken some positive steps, there are numerous areas where further action is needed. We note, for example, that the U.S. government’s letter to the United Nations Working Group on Business and Human Rights failed to address a series of suggestions ICAR had provided in a July 2012 ICAR submission to the Department of State. It is unclear how the U.S. government is planning to follow up on these previously identified suggestions. We now reiterate these requests and recommend that the U.S. government (a) develop a national implementation plan for the UNGPs, (b) ensure the development and protection of robust remedies for human rights violations, and (c) use its regulatory authority to mandate human rights due diligence, including through exploring how procurement laws could be structured to require human rights due diligence. In addition, we take issue with some language in the Department of State’s December 10, 2012 letter, in particular concerning the status of efforts to integrate the concepts underlying the UNGPs into the OECD National Contact Point, Overseas Private Investment Corporation, and U.S. Export-Import Bank.

A. The U.S. Government Should Develop a National Implementation Plan

Currently, the U.S. government’s efforts to implement the UNGPs lack a clear, publicly-articulated vision and strategy. We believe that such a plan is needed and that it would streamline and enhance the disparate government efforts at implementing the UNGPs. For example, a national implementation plan would provide clarity of expectation for all U.S. companies and create a framework for engaging directly with other governments and regional or global bodies to identify challenges and best practices. The plan should articulate how the U.S. government will comply with its duty to protect human rights across government agencies and departments.

It would be important that the U.S. national implementation address the full scope of the UNGPs, including a review of measures and detailed recommendations as needed under each of the Guiding Principles and with respect to both the obligations of government and the responsibilities of business enterprises themselves.

1 The report is available at: http://www.state.gov/j/drl/rls/vprpt/2012/206029.htm

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We believe that in order to encourage efficiency and accountability, the Department of State—and specifically the Bureau of Democracy, Human Rights and Labor—should be given clear ownership of the national implementation plan. We also believe that the implementation plan should be complemented by periodic monitoring and public reporting.

To begin, an initial national baseline study and gap analysis needs to be conducted in order to inform credible and strategic milestones. This process should be participatory, ensuring inclusion of rights-holders exposed to conditions of vulnerability. The U.S. government should therefore ensure there is outreach to and substantive engagement with civil society groups and impacted communities in the development of the plan.

B. The U.S. Government Should Mandate Human Rights Due Diligence by Companies

To uphold the state duty to protect human rights, ICAR believes that the U.S. government must take effective regulatory measures to ensure that business entities respect human rights, including by imposing binding requirements on business entities to carry out human rights due diligence. Strong, effective human rights due diligence procedures are fundamental to ensure that human rights are respected in company actions both inside and outside their home territories. We strongly urge the U.S. government to enact mandatory human rights due diligence requirements under U.S. law. We also call on the U.S. government (and others) to mandate independent monitoring and public reporting of companies’ human rights impacts to verify compliance. These requirements should cover all business relationships, including suppliers, contractors, security forces, business partners and recipients of financing. Initially, however, priority could be given to those areas in which the state is a commercial partner in business, such as public procurement, state-owned enterprises and joint ventures, or in the provision of export credit guarantees.

In this light, we would like to draw your attention to two ICAR projects addressing due diligence requirements that we hope will assist the U.S. and other governments to make progress in this area. In 2012, ICAR, in conjunction with the European Coalition for Corporate Justice (ECCJ) and the Canadian Network on Corporate Accountability (CNCA), published “Human Rights Due Diligence: The Role of States,” the results of an extensive research project designed to bring clarity to the ways in which States can, by law and regulation, require due diligence pertaining to human rights. This undertaking drew on an extensive consultation process with legal experts from across the world.

The principal conclusion of the Project was that there are four main regulatory approaches to available to ensure human rights due diligence in the business community: (1) requiring due diligence as a matter of regulatory compliance; (2) providing incentives and benefits to companies in return for demonstrating due diligence; (3) encouraging due diligence through transparency and disclosure mechanisms; and (4) constructing an incentive structure by combining aspects of these approaches. As a follow-up to that report, ICAR is developing a searchable database of examples from the report, in the hopes of assisting government officials, lawmakers, members of civil society and others in implementing human rights due diligence elements of the UNGPs.

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In addition, ICAR has recently launched a “Government Procurement Project” that is highly relevant to the U.S. government.

3 Governments at the federal and state level are large purchasers of goods and services and can

therefore exert a tremendous amount of leverage on corporate actors to comply with requirements to compete for these lucrative contracts. There have already been a number of positive steps by the federal government here in the United States, as well as at the state level, to alter procurement policies and practices in ways that promote respect for human rights by corporations. Our Project seeks to build on this momentum by clarifying and building

2 See International Corporate Accountability Roundtable, Human Rights Due Diligence: The Role of States, 60

available at http://accountabilityroundtable.org/campaigns/human-rights-due-diligence/. 3 See International Corporate Accountability Roundtable, Procurement, available at

http://accountabilityroundtable.org/campaigns/procurement/.

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consensus around the U.S. government engaging in the state duty to protect human rights by building on procurement requirements that mandate businesses conduct human rights due diligence, or by prohibiting contracts with businesses that have been found to have violated human rights.

We would be happy to provide further details and will continue to share the findings and recommendations that emerge from this body of work.

C. The U.S. Government Should Strengthen Remedies for Human Rights Violations

The U.S. government should act to improve accountability, a core concept in international human rights law that is reflected in the UNGPs by a call for increased access to effective remedies. When harm occurs, the state must ensure an effective remedy is available to the victims, and business must meet its responsibility to respect human rights by cooperating with complaints processes, both judicial and non-judicial, as appropriate. Due diligence measures serve a valuable purpose as a means for companies to understand and address human rights related risks. They should not, however, be used to evade liability.

Recognizing the importance of addressing obstacles to justice and threats to legal remedy, the International Corporate Accountability Roundtable, European Coalition for Corporate Justice, and the Corporate Responsibility Coalition have recently launched the “Access to Judicial Remedy Project.” The Project will result in a report that will affirm that, as part of the State duty to protect human rights, States must ensure that victims have access to judicial remedies in their jurisdictions. The report will further identify feasible opportunities to ensure that such remedy is accessible in the United States, United Kingdom, and European Union, where many corporations are headquartered.

As an interim step, the U.S. government—as part of the proposed national implementation plan—should undertake to prepare a comprehensive mapping of existing remedies that are available to redress human rights harms arising in the context of business activities, as well as to identify weaknesses and gaps. Such a study should be followed by action to strengthen existing judicial and non-judicial mechanisms of redress, removing barriers to ensure effective access, and creating new remedial mechanisms where needed through judicial, administrative, and legislative reform.

We note that much of the debate over judicial remedies for corporate human rights abuses in the United States has centred on the Alien Tort Statute (ATS). On April 17, 2013, the U.S. Supreme Court issued a ruling in Kiobel v. Royal Dutch Petroleum that adds a significant barrier to foreign claimants who seek a remedy for human rights abuses abroad. Although it does not preclude such claims, Kiobel calls into question the commitment of the United States to comply and give effect to international human rights norms and makes it harder for victims to hold companies to account for their global operations. U.S. lawmakers and executive officials should respond to this development by reaffirming the legal obligation of the United States to provide an effective remedy for all victims of human rights abuses that are attributable to companies and individuals that fall under its jurisdiction. However, the ATS is neither the beginning nor the end point of the obligation. All parts of the U.S. government, including the executive agencies, the Congress, and the courts, are responsible to remove the financial, legal, and logistical barriers to an effective and complete remedy that is consistent with international standards.

D. U.S. Government Institutions Should Themselves Act in Accordance with Human Rights Norms

The UNGPs stress the concept of “policy coherence,” pointing out that governments should practice what they preach. Consistent with this recommendation, and to complement the recommendations above on judicial remedies, we encourage the U.S. government to ensure that all agencies and departments comply with international human rights standards in their operations, and to establish and improve the function of official complaints mechanisms so they can be effective in providing concrete redress for communities harmed by corporate conduct.

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Below we focus on three institutions that were highlighted in the Department of State’s December 10 letter as examples of implementation of the UNGPs, two of which have established complaints procedures. We also call attention to the policy incoherence of U.S. government support for companies through export credits, investment insurance and other means without a corresponding official requirement that the companies benefiting from such support act in a manner consistent with the UNGPs.

1. U.S. National Contact Point

The U.S. National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises (Guidelines) is referenced in the December 10 Department of State letter to the U.N. Working Group as an avenue to address allegations of business conduct that is inconsistent with the corporate responsibility to respect human rights. Our assessment, however, is that the U.S. NCP falls short of its purpose to provide an effective avenue for resolving instances in which individuals, communities, workers organizations, or unions are harmed by business enterprises. We recognize that the U.S. government has taken some steps to improve the functioning of the NCP; however, further reforms are needed to address key structural weaknesses.

In particular, we believe that the NCP should be empowered to make findings of fact and draw conclusions as to whether the Guidelines have been breached–a feature that all the best-performing NCPs, including those of the United Kingdom, Norway, and Netherlands, have in common. Moreover, the U.S. NCP’s strict confidentiality rule, a provision without parallel in other countries’ NCPs, requires the complainant in a specific instance to keep secret the text of its complaint. This deters groups that operate transparently from filing complaints and should therefore be relaxed.

We also urge the NCP to elaborate on the specific procedure it intends to follow when there are parallel legal proceedings. We recommend adopting the approach of the U.K. NCP, which will suspend a specific instance “only where it is satisfied that it is necessary in order to avoid serious prejudice to a party to parallel proceedings and appropriate in all the circumstances.”

4 Doing so would help ensure that the U.S. NCP can provide an effective

avenue for redress in all cases in which doing so will not interfere with legal proceedings. Finally, to improve access to the NCP for all affected parties, the NCP’s procedures should be available in major world languages, and the NCP should guarantee translation services to enable proceedings to be conducted in the languages in which complainants are most fluent.

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2. Overseas Private Investment Corporation’s Office of Accountability

The December 10 Department of State letter to the UN Working Group cites the Overseas Private Investment Corporation (OPIC) as an example of an institution that contributes to the U.S. government’s implementation of the UNGPs, based on its adoption of the International Finance Corporation’s (IFC’s) Performance Standards as the standard for review under OPIC’s Environmental and Social Policy Statement, which addresses human and labor rights. The December 10 letter also discusses OPIC’s Office of Accountability (OA) as an independent grievance mechanism consistent with the UNGPs’ pillar on access to remedy for business-related human rights abuses. However, civil society groups have raised important questions about whether the OA’s procedures and their implementation are in fact consistent with criteria for an effective mechanism laid out in Paragraph 31 of the

4 See Department for Business, Innovation & Skills, Approach of the UK NCP to Specific Instances in Which There are

Parallel Proceedings, 2009, URN 09/1354, available at http://www.bis.gov.uk/files/file53069.pdf. 5 See joint civil society letter signed by several ICAR members that details concerns about the U.S. NCP and

recommendations, available at http://www.accountabilitycounsel.org/wp-content/uploads/2012/02/6.23.11-OECD-NCP-Letter-to-Fernandez.pdf, and detailed annex to Assistant Secretary Fernandez, available at http://www.accountabilitycounsel.org/wp-content/uploads/2012/02/6.23.11-Coalition-Annex.pdf.

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UNGPs, namely with respect to transparency, predictability, equitability, and continuous learning.6 Notably,

Accountability Counsel (a member of ICAR) has critiqued OPIC’s role in relation to a complaint about the Cerro de Oro Hydroelectric Project, citing among other factors a perceived OPIC staff bias in favor of the company and an absence of due transparency.

7 Regarding transparency, we note that the OA—which has operated since 2005—only

made its operational guidelines publicly available in 2012, hampering the ability of complainants to make effective, predictable, and equitable use of the mechanism. It is important that OPIC and the OA take further steps to improve transparency in its policies, which are currently under review, as well as the consultation procedures, to ensure that all interested parties, including affected or potentially affected groups, are able to participate in the review. Other matters that merit further attention include ensuring that the OA builds stakeholders’ trust in the mechanism, that grievance processes are carried out in culturally and contextually appropriate manners so that complainants can fully and effectively participate, and that lessons from the grievance processes are documented and used to inform future OPIC lending.

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3. U.S. Export-Import Bank

The U.S. Export-Import Bank (Ex-Im Bank) has adopted the IFC Performance Standards and the Equator Principles, which are a voluntary set of standards for determining, assessing, and managing social and environmental risk in project finance, as part of the requirements for their borrowers. These standards, however, are not fully consistent with international human rights norms. For example, although a 2012 IFC update of the Performance Standards incorporated some human rights language, it does not require its clients to undertake a human rights impact assessment, stating only that it might be “appropriate” in limited high-risk circumstances.

9 By contrast, the UNGPs,

under Principle 4, specifically call on governments to “take additional steps to protect against human rights abuses by business enterprises that . . . receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.” Accordingly, Ex-Im Bank should commit to respecting human rights in their lending activities and require borrowers to comply.

Furthermore, adoption of standards constitutes only the first step, and the victims of human rights violations have no way of holding Ex-Im Bank accountable for adherence to those standards. This concern has been voiced, for example, in relation to requests that the Ex-Im Bank review the social and environmental impacts of the Kusile Coal Power Plant in South Africa, to which it has not responded, as well as disputes arising out of the Ex-Im Bank supported Sasan Coal Power Plant in India.

10 Ex-Im Bank should establish measures for impacted communities to

6 See United Nations Guiding Principles on Business and Human Rights, paras. 31(c)-(e), (g), U.N. Human Rights

Council, 17th sess., U.N. Doc. A/HRC/17/31 (Mar. 21, 2011), available at http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. 7 See Case Study on the OPIC Office of Accountability: Bias, Cultural Insensitivity and Lack of Transparency within

the Mechanism, available at http://www.accountabilitycounsel.org/wp-content/uploads/2013/03/4.12.12-OPIC-OA-problems-in-Mexico-case.pdf.

8 For a critique by Accountability Counsel of OPIC’s role in relation to a complaint about the Cerro de Oro

Hydroelectric Project, see Case Study on the OPIC Office of Accountability: Bias, Cultural Insensitivity and Lack of Transparency within the Mechanism, available at http://www.accountabilitycounsel.org/wp-content/uploads/2013/03/4.12.12-OPIC-OA-problems-in-Mexico-case.pdf.

9 See the joint civil society submission to the Office of the High Commissioner for Human Rights on “the Need for

the World Bank Group to Implement Human Rights Standards,” March 28, 2012, at http://www.hrw.org/news/2012/03/28/submission-report-business-and-human-rights-and-un-system. See INTERNATIONAL FINANCE CORPORATION, Performance Standards on Environmental and Social Sustainability 3 n. 12 (2012) (“In limited high risk circumstances, it may be appropriate for the client to complement its environmental and social risks and impacts identification process with specific human rights due diligence as relevant to the particular business.”).

10 See Kate Sheppard, Internal Review Dings World Bank’s Funding of Massive Coal Plant, MOTHER JONES, Dec. 9,

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raise complaints and seek resolution. To date, Ex-Im Bank has strongly opposed proposals, including a provision in a House bill,

11 to establish an independent grievance mechanism to enhance human rights accountability in its

operations; such a position is inconsistent with the U.S. government’s commitment to the UNGPs.

Thank you very much for your consideration of these recommendations. We look forward to working with you and your team to advance the business and human rights agenda at the Department of State and throughout the U.S. government.

Yours sincerely,

Amol Mehra, Esq.

Director

International Corporate Accountability Roundtable

amol@accountabilityroundtable.org

2011, available at http://www.motherjones.com/blue-marble/2011/12/internal-report-dings-world-banks-funding-massive-coal-plant (indicating “South African environmental groups requested an investigation” by Ex-Im Bank of impacts of Kusile Coal Power Plant); US Ex-Im Bank May Fund Giant Coal Plants in South Africa, India, SUSTAINABLEBUSINESS.COM NEWS, Aug. 11, 2010, available at http://www.sustainablebusiness.com/index.cfm/go/news.display/id/20838 (indicating that “[l]ocal communities in India are actively protesting the Sasan project, as it will displace 6,000 people, and emit between 26-27 million tons of carbon dioxide annually”).

11 See H.R. Report No. 112–201 (2011), Securing American Jobs Through Exports Act of 2011, H.R. 2072, sec. 10,

http://www.gpo.gov/fdsys/pkg/BILLS-112hr2072rh/pdf/BILLS-112hr2072rh.pdf.

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First Peoples Worldwide Submission to the UN Working Group on Business and Human Rights

April 12, 2013

Approaching Indigenous Peoples’ Rights Separately from Human Rights

Since the adoption of the Universal Declaration on Human Rights, the human rights framework

promoted by the UN has had positive impacts on communities around the world. The “protect,

respect, and remedy” framework proposed by the UN Guiding Principles on Business and

Human Rights has also had positive impacts on communities, and can serve as valuable guidance

for companies seeking best practices with regards to their impacts on human rights. However,

these frameworks are limited in their applicability to Indigenous Peoples’ rights.

Due to the unique sociopolitical and economic situations facing Indigenous Peoples, there is a

need to adopt distinct approaches to Indigenous Peoples’ rights, rather than grouping them with

human rights in general. These approaches must take into account, among other factors,

Indigenous Peoples’ cultural heritage, economic and spiritual connections to land and natural

resources, economic systems that emphasize communal over individual property ownership, and

historical legacies of discrimination. The distinct rights belonging to Indigenous Peoples are

delineated in the UN Declaration on the Rights of Indigenous Peoples.

FPIC in the Public and Private Sector

Indigenous Peoples’ right to Free, Prior, and Informed Consent (FPIC) to any development

decisions that will affect them is recognized as the fundamental concept for interactions between

companies and Indigenous Peoples. The right to FPIC is recognized in the UN Declaration on

the Rights of Indigenous Peoples, ILO Convention 169, and other international legal instruments,

as well as in many national legal systems.

Within the financial sector, there is increasing expectation that companies respect Indigenous

Peoples’ right to FPIC. As of July 2005, the World Bank requires borrowers to engage in free,

prior, and informed consultation leading to broad community support from Indigenous Peoples

relocated by Bank-funded projects. It is important to note the differences between consultation

and FPIC – one is a process and the other is a right. As of January 2012, the IFC requires FPIC

from Indigenous Peoples affected by development in certain circumstances, including relocation

and impact on lands and natural resources subject to traditional ownership or under customary

use. The Equator Principles, a social and environmental risk management criterion developed by

private-sector banks and adopted by 79 financial institutions, include Indigenous Peoples’

policies based on those of the World Bank and the IFC.

Other multilateral lenders with Indigenous Peoples’ policies include the Inter-American

Development Bank (2006), the Asian Investment Bank (2007), and the European Investment

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Bank (2009). The African Development Bank remains the only major multilateral financial

institution without a standalone Indigenous Peoples’ policy, but its February 2013 hosting of an

Indigenous Peoples’ forum indicates the issue is not being ignored.

In November 2012, the Brazilian National Development Bank (BNDES) approved a $US22.5

billion loan to finance construction of the Belo Monte Dam in Brazil, the world’s third largest

hydroelectric dam. Approximately 11 percent of the loan (US$3.2 billion) was designated

specifically for social and environmental programs, the largest ever investment by BNDES for

such purposes. The dam, which was authorized by the Brazilian government in 2005 without

FPIC from affected Indigenous Peoples, has been the subject of 53 judicial actions in Brazil, and

construction was suspended at least five times in 2012 alone. The conditions of the BNDES loan

indicate that national development institutions may begin making the same concessions to

Indigenous Peoples’ rights as multilateral and private lenders.

Standard setting initiatives within the private sector also serve to elevate the international

standards for corporate responsibility to respect Indigenous Peoples’ rights. These include

industry associations such as the Roundtable on Sustainable Palm Oil and the International

Council on Mining and Metals, both of which address issues relating to Indigenous Peoples’

rights and FPIC in certain circumstances. Other organizations, such as the Global Reporting

Initiative (GRI), focus on social and environmental reporting standards for companies, which

enhance stakeholders’ ability to evaluate policies and practices towards Indigenous Peoples. In

2012, GRI released a draft of its updated Sustainability Reporting Guidelines highlighting

UNDRIP and FPIC as useful instruments in the assessment of Indigenous Peoples’ rights.

In its 2012 Community Consent Index, Oxfam America cites increased commitments to FPIC

and community consent by extractive companies themselves: “Five companies (Inmet,

Newmont, Rio Tinto, Talisman, and Xstrata) out of the 28 have made explicit public

commitments to FPIC. At the time of Oxfam America’s 2009 report, only two extractive

companies included in the index had made company-wide commitments to obtaining FPIC. Just

three years later, the number of companies has doubled (with bigger numbers if we take into

account qualified or indirect commitments). In addition, approximately two-thirds of the

companies surveyed in this report now have incorporated concepts of community consent, broad

community support, or social license in 20 Community Consent Index their policies regarding

development activities, either directly or indirectly, through their commitments to other

standards (such as UNDRIP).”

Issues

Although these facts display a clear trajectory that holds businesses increasingly accountable to

Indigenous Peoples’ rights, conflicts persist around the world stemming from imposed

development on Indigenous communities without FPIC. The chronic failure of states to consult

with Indigenous Peoples often leaves companies caught in centuries-old disputes between

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governments and their Indigenous populations. This even applies to states with laws in place

recognition Indigenous Peoples’ rights. Peru and the Philippines have passed laws requiring

consultation with Indigenous Peoples, but their effectiveness is questioned because the

consultations are not binding; states reserves the right to make final decisions about

development. Indigenous Peoples are therefore skeptical as to whether the consultations will

improve their situations, and development-related conflicts persist in both states. Community

consultations have been similarly incorporated into many company policies, but far fewer

recognize Indigenous Peoples’ right to say no to projects that will affect them.

These disputes, which take the form of campaigns, lawsuits, demonstrations, occupations, and in

worst cases, violence, often inflict far more financial and reputational damage to companies than

the governments whose policies instigated them. It is in companies’ best interest to address

Indigenous Peoples’ consultation rights through their own policies and practices, rather than

relying on the inadequate protections offered by governments. When such policies fill the void

left by states, the groundwork is laid for long-term, mutually-beneficial partnerships between

companies and Indigenous communities.

The Importance of Self-Governance

As decision-making channels, the success of FPIC processes is determined by Indigenous

communities’ decision-making capacity, reiterating the need for an approach that builds

traditional self-governance structures. Such an approach is comprehensive in that it enables

Indigenous communities to address all of their rights that are affected by extractive companies as

they come.

For this reason, UN work on business and human rights must emphasize capacity-building at

both the corporate and Indigenous level to enable both parties to develop mutually-beneficial

agreements in individual circumstances. This involves the greater allocation of resources to

developing corporate policies and practices that respect Indigenous Peoples’ rights, and to the

preservation and enhancement of Indigenous communities’ traditional self-governance structures

to build their capacity to negotiate and build consensus with regards to projects in their

territories.

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CIVIL SOCIETY CONSULTATION FOR US COUNTRY VISIT OF UN WORKING GROUP ON BUSINESS AND HUMAN RIGHTS

April 23rd, 2013

Georgetown University Law Center

Geneva-Paris, April 12, 2013

On the occasion of the Civil Society Consultation for US country visit of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises that will take place on April 23, 2013 at the Georgetown University Law Center, the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), in the framework of the Observatory for the Protection of Human Rights Defenders, would like to draw the attention of the Working Group on the situation of human rights defenders working on land and environmental issues in trying to find a balance between economic development and environmental protection. As pointed out by the UN Special Rapporteur on human rights defenders, Ms. Margaret Sekaggya, in a press release1 issued in April 2012 following the presentation of her 2012 report to the Human Rights Council, environmental and land rights defenders face a large range of acts of criminalization and abuses when pointing out adverse impacts of investment projects. Those include threats, violence, judicial harassment, and even killings, as a consequence of their peaceful activities to defend the right to live in a healthy environment, to protect natural resources and the livelihood of their communities. The Special Rapporteur’s report was echoed recently by the UN Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Mr. John H. Knox, who stressed in his last report2 to the 22nd session of the Human Rights Council that “environmental human rights defenders have proved to be especially at risk when trying to exercise these rights”. He further recalled that “States’ obligations regarding freedom of expression and association apply fully to those seeking to exercise those freedoms for the purpose of improving environmental protection”, adding that “environmental defenders have human rights just as others do but […] they may be more at risk than most for exercising them”. Human rights defenders, including those addressing environmental concerns, whose efforts often intersect with both State and corporate activities, are at even greater risk of business-related human rights abuses, as they often find themselves not only vulnerable to abuses by State interests but also the interests of powerful economic actors. Therefore, not only do States, including home governments of corporations and host countries, have the responsibility to effectively protect such defenders and fight against impunity for attacks and violations against them, including by non-State actors, but enterprises also have the responsibility to avoid any adverse impact of their activities on human rights defenders. The former Special Representative of the UN Secretary-General on business and human rights, Professor John Ruggie, also recommended that 1) the legitimate and peaceful activities of human rights defenders should not be obstructed, and 2) that business enterprises, in their due diligence efforts, should consult with “credible, independent resources including human rights defenders”3.

1 http://www.ohchr.org/EN/NewsEvents/Pages/EnvironmentalHumanRightsDefenders.aspx 2 http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-43_en.pdf 3 http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

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Accordingly, and as a follow-up to the written submission4 OMCT and FIDH addressed to the first annual UN Forum on Business and Human Rights in December 2012, our organisations would like to reiterate the following recommendations: 1) To States:

- to guarantee in all circumstances the physical and psychological integrity of all human rights defenders, including those addressing land and environmental concerns;

- to give full recognition to the legitimate role and important work they carry out as well

as to ensure that they are able to work effectively and without threat of attack by State or non-State actors, including when they protest against adverse impact of investment projects on human rights;

- to combat impunity for attacks and violations against land and environmental human

rights defenders, committed both by State and non-State actors. 2) To companies and multinational enterprises (MNEs):

- to respect the rights to freedoms of expression and assembly of those who speak out or demonstrate against a company's activities; and refrain from retaliating (including through litigation) against human rights defenders, including indigenous and community leaders;

- to guarantee that human rights defenders, including indigenous and community

leaders, are adequately consulted and involved in decision-making process related to the establishment of economic projects;

- to publicly support the legitimate activities of human rights defenders and speak out

to the relevant public authorities against restrictions on their activities. 3) To the UN Working Group on Business and Human Rights:

- to pressure States to fulfil their obligations to protect human rights defenders, including those addressing land and environmental concerns, through tangible measures and monitor the implementation of such measures;

- to take into account and to build on recommendations relating to the criminalisation of

activities of environmental and land human rights defenders made by other UN procedures;

- to pay special attention to the actions of companies which contribute to the

criminalisation of the actions of human rights defenders.

4 http://www.ohchr.org/Documents/Issues/Business/ForumSession1/SubmissionsStatements/ObservatoryProtectionHRD.pdf

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SUBMISSION TO THE UN WORKING GROUP ON THE ISSUE OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER

BUSINESS ENTERPRISES

INTERNATIONAL CORPORATE ACCOUNTABILITY ROUNDTABLE Georgetown University Law Center, April 23, 2013

from

NGO COMMITTEE TO STOP TRAFFICKING IN PERSONS

The Guiding Principles on the issue of human rights and transnational

corporations and other business enterprises cannot be fully implemented without

addressing the connections of these corporations and business enterprises to trafficking

for forced labor and sexual exploitation and to trafficked persons. The UN NGO

Committee to Stop Trafficking in Persons (CSTIP), with more than 60 member

organizations dedicated to eradicating trafficking in persons, calls upon the working

Group to include trafficking among the human rights issues it addresses, and to

recognize that trafficked persons are among the groups and individuals vulnerable to

human rights abuses and lacking access to justice.

Trafficking in persons is a form of modern slavery, and it is widespread. The

2012 UNODC Global Report on Trafficking in Persons states: "Trafficking in persons is

a global crime affecting nearly all countries in every region of the world. The Report

studied global trafficking patterns. "Between 2007 and 2010, victims of 136 different

nationalities were detected in 118 countries across the world, and most countries were

affected by several trafficking flows." The report finds that the trafficking of children

appears to be increasing. Among the child victims, two thirds of trafficked children were

girls.

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Transnational corporations and business enterprises can unknowingly facilitate

trafficking through their supply chains and in their workforces. The transportation and

hospitality industries are especially susceptible to being used by traffickers.

Unfortunately, the corporate culture of many organizations can mean that they are part

of the demand for sexually exploited women and girls -- often the victims of trafficking.

As the Working Group continues to make recommendations and to engage

business entities in order to implement the Guiding Principles, those entities should be

made aware of the necessity to use due diligence to avoid infringing on the rights of

trafficked persons, to address adverse impacts that occur, and to recognize the need for

greater access by trafficked persons to effective remedy, both judicial and non-judicial.

Respectfully submitted, NGO Committee to Stop Trafficking in Persons New York, New York Contact: Jackie Shapiro <jacci007@aol.com>

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P.O. Box 5675, Berkeley, CA 94705 USA

Contact Information: Professor Connie de la Vega

Graham D. Douds, Frank C. Newman Intern

delavega@usfca.edu

Submission to the Working Group on Business and Human

Rights

Human Rights Advocates (HRA) submits these comments with respect to the

upcoming visit by the UN Working Group on the issue of human rights and transnational

corporations and other business (WG). HRA has been involved in this topic for a number of

years and in response submitted a number of comments regarding the Guiding Principles.1

The recommendations included:

1. That it is imperative that the home State governments to regulate the activities of

their corporations by ensuring recognition of human rights impacts both

in corporate policy and through mandating corporate disclosures on

human rights; and

2. That there is a necessity for strong, independent legal remedies to be provided for

human rights abuses and encouraging host States, home States, multilateral

organizations and international organizations to provide such measures.

Human Rights Council Resolution 17/4 provides that in addition to disseminating the

Guiding Principles and support efforts to promote capacity-building and their use in domestic

1 Right Respect, Human Rights Advocates, Earthjustice, Comments on the “Guiding Principles for the

Implementation of the United Nations ‘Protect, Respect and Remedy’ Framework” Developed by the United

Nations Special Representative on Transnational Corporations and other Business

Enterprises, available at http://humanrightsadvocates.org/wp-content/uploads/2010/05/RR.pdf.

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legislation and policies relating to business and human rights, the Working Group should:

“Continue to explore options and make recommendation at the national, regional and

international levels for enhancing access to effective remedies available to those whose

human rights are affected by corporate activities…”2

Because corporations have an effect on human rights in both the country they do

business in as well as other countries, HRA would like to suggest two areas that the Working

Group look into during the visit to the United States in relation to its obligation to promote,

protect and fulfill the respect for human rights which included the proper regulation of

transnational corporations and other business enterprises. The first area concerns United

States corporations running private prisons which primarily affect human rights in the United

States, though there are now reports that they are expanding into other countries. The second

area concerns the dumping of hazardous waste in other countries. HRA would like to address

practices that could prevent violations of human rights when the waste is sent to other

countries and report on the efforts in California to prevent the exportation of e-waste to

countries where there are inadequate means for disposing it. This comment will end with an

assessment as to why the Guiding Principles, although provide a fundamental framework to

promote corporate responsibility, nonetheless are insufficient to properly protect human

rights.

1. Private Prisons: Implications on Human Rights in the U.S.

Like any business, private prisons make strategic decisions to maximize profits.

Since labor costs account for approximately 70% of a prison’s overall operational costs,3

prison profits are realized by cutting labor costs and scaling back facility maintenance and

2 Human rights and transnational corporations and other business enterprises, HRC Res. 17/4,

A/HRC/RES/17/4, ¶ 6 (3)(6 July 2011). 3 U.S. DEPARTMENT OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF JUSTICE ASSISTANCE, EMERGING

ISSUES ON PRIVATIZED PRISONS 13 (2001).

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monitoring.4 Consequently, these corporate governance measures create adverse impacts on

the human rights of the prisoners.

The two biggest private prison companies in the United States are the Corrections

Corporation of America (CCA) and The GEO Group. In 2010, the annual revenue for the two

companies combined was $3 billion with the CEOs of each company making over $3 million

each. 5

Prison guards hired by private facilities often lack the training or experience to handle

the complexities required by the job. The result is a prison staff that is ill prepared and

provides substandard service for addressing violent crises that may erupt at any moment.6 In

November 2012, GEO was sued by civil rights organizations after a Mississippi youth

claimed “barbaric, unconstitutional conditions” at the company’s correctional facility.7

Referred to as “second-hand prisoners,” it was reported that they are subjected to clogged

water fountains, falsification of food service records, padlocked fire exits, moldy showers,

unsecured cleaning chemicals, and no guards monitoring “pill call” when inmates receive

medications.8

Although U.S. domestic law under 42 USC § 1983 affords prisoners redress for

claims of civil rights abuses, because many prisoners have limited access to legal

representation this remedial option is underutilized.9 Even so, private prisons have attempted

to prevent this avenue for redress for violations of rights arguing that because private prisons

4 Prisons for Profit: A Look at Prison Privatization, ACLU Ohio, 13-14,

http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pdf. 5 Wade, Lisa, Race, Rehabilitation, And The Private Prison Industry, The Society Pages, 2013,

http://thesocietypages.org/socimages/2013/01/25/race-rehabilitation-and-the-private-prison-industry/. 6 Id.

7 A Brief History of Private Prisons in Immigration Detention, Detention Watch Network, 2008,

http://www.detentionwatchnetwork.org/privateprisons_note2 (hereinafter ‘Detention Watch’). 8 Bischoff, Laura, Auditors Uncover Problems at Private Prisons in Ohio, Dayton Daily News, 2012,

http://www.daytondailynews.com/news/news/state-regional/auditors-uncover-problems-at-private-prisons-in-

oh/nTgQ5/. 9Belinda Belcher, Alan Mills, Prisons Should, Above All Others, Be Places of Law. All Too Often They Fall

Short Pro Bono and the Incarcerated, CBA Rec., October 2008, at 47.

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serve the same function as public prisons they should qualify as state actors and be afforded

an affirmative defense from such litigation under the qualified immunity doctrine. In Wyatt v.

Cole,10

however, the Supreme Court denied protection of private entities under qualified

immunity from § 1983 prosecution because private interests favoring profit over public

interest were “not sufficiently similar to the traditional purposes of qualified immunity to

justify such an expansion.”11

While this particular issue has been resolved, it is reflective of

efforts to limit avenues for redress.

Efforts to perpetuate the private prison profit scheme are supported by robust

lobbying by influential and motivated private prison representatives. In February 2011,

Pennsylvania Juvenile Court Judge Ciavarella was convicted of racketeering in a “cash for

kids” jail scheme. The judge was paid by Robert Mericle, builder of two private, for-profit

juvenile facilities to sentence kids to longer prison terms in order to keep the company’s

private facility filled. The scandal led to the reversal of thousands of cases and the release of

many of the juveniles. The Judge was sentenced to serve 29 years in prison for his crime.12

Ciaverella claimed an immunity defense in the civil rights cases filed against him by the

victims but the State Supreme Court appointed a Special Master to review the cases and

administer a statutorily established a juvenile crime victim compensation fund. As a result,

“a total of 2,251 juveniles have had their records expunged and $65,000 in restitution has

been provided to 110 victims of juvenile crime."13

In another state, it was reported that Governor Brewer of Arizona accepted nearly

$60,000 in campaign contributions from people associated with private prisons. Brewer came

10

504 U.S. 158 (1992). 11

Id. at 168. 12

Brickner, Michael and Diaz, Shakyra, Prisons for Profit: Incarceration for Sale, ACLU,

http://www.acluohio.org/issues/CriminalJustice/ABAPrivatePrisonsReport.asp. 13 Mazullo, Yvonne, Control of Juvenile Cases Returned to Luzerne County Court,

http://www.examiner.com/article/control-of-juvenile-cases-returned-to-luzerne-county-court

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under fire after signing Senate Bill 1070 in 2010, which would have increased enforcement of

immigration laws and likely allowed private companies to increase detention of

undocumented immigrants in the state.14

Applicable International Law

Article 10(1) of the ICCPR provides that “all persons deprived of their liberty shall be

treated with humanity and with respect for the inherent dignity of the human person.”

Additionally, Article 29 of the United Nations’ Standard Minimum Rules for the Treatment

of Prisoners (Standard Minimum Rules) emphasizes the State’s role in regulating prisons. 15

It

affirms that the “types and duration of punishment which may be inflicted” and “the authority

competent to impose such punishment” should be determined by “law or by the regulation of

the competent administrative authority.”16

A private prison company’s loyalty to its

shareholders in favor of the public interest undermines the State’s authority in regulating

prisoners.17

HRA Assessment

The U.S. Government is not upholding its international obligations under (1) Article

10 of the ICCPR; and (2) the Standard Minimum Rules. Profit maximization schemes

common to all private industry creates perverse incentives unique to the private prison

context that result in human rights violations under the ICCPR including dismal conditions,

insufficient security protections, as well an array of other human rights violations for

prisoners. Unlike most companies that deal in products and services, these companies are

14

Arizona’s Private Prison Pay-to Play Scandal Widens: Chair of House Appropriations Committee

Appropriated by GEO Group, Tucson Citizen, 2011, http://tucsoncitizen.com/cell-out-

arizona/2011/07/20/arizona’s-private-prison-pay-to-play-scandal-widens-chair-of-house-appropriations-

committee-appropriated-by-geo-group/. 15

Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations

Congress on the Prevention of Crime and the Treatment of Offenders, E.S.C. Res. 663C, Annex 1, at 11, U.N.

ESCOR, 24th Sess., Supp. No. 1, U.N. Doc. A/CONF/611 (July 31, 1957), amended by E.S.C. Res. 2076, at 35,

U.N. ESCOR, 32nd Sess., Supp. No. 1, U.N. Doc. E/5988 (May 13, 1977), available at

http://unispal.un.org/UNISPAL.NSF/0/70D535E1E3DCA2B885256F010074C34D [hereinafter Standard

Minimum Rules]. 16

Id. 17

Detention Watch, supra note 7.

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treating humans as a commodity, violating the foundational human rights principle that

“people are not mere chattel.”18

In the U.S., in particular, private prison companies’ priority

of maximizing shareholder value undermines the Government’s ability to regulate and

maintain control over its prison population. These realities are contrary to the international

legal standards articulated by the Standard Minimum Rules protecting the rights of prisoners.

At a minimum, stronger regulatory measures must be implemented to offset these perverse

incentives to maximize profits at the expense of prisoners’ rights so as to set a minimum

standard for treatment of prisoners. In order to uphold its international obligations, the U.S.

should take sole control of prison management to properly monitor the activities of private

prisons.

Recommendation

The WG should visit private prisons during its mission to the U.S. to assess

conditions, determine the effectiveness of the U.S.’s ability to properly regulate companies

managing private prisons and investigate the access to legal remedies for prisoners subject to

these human rights violations.

2. Hazardous Waste Disposal: U.S. Implications on Human Rights

As with private prisons, money is the key motivating factor in the hazardous waste

disposal trade. Compliance and disposal costs are much higher in developed countries and

many developing countries not only welcome waste imports as a source of income but also

rely on the recovery of materials from imported international ‘waste’ as a valuable source of

income. Consequently, underdeveloped countries have become the inexpensive alternatives

for the disposal of hazardous waste pollution by developed states.19

Unfortunately, because underdeveloped countries not only lack the technology to

properly dispose of the hazardous waste, these countries often also lack the strict

18

Elihu Lauterpacht, Some Concepts of Human Rights, 11 HOW. L.J. 264, 271 (1965). 19

Laura A. W. Pratt, Decreasing Dirty Dumping? A Reevaluation of Toxic Waste Colonialism and the Global

Management of Transboundary Hazardous Waste, 41 Tex. ENVTL. L.J. 147, 150 (2011).

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environmental protection regime necessary to promote the effective use of such technology in

the event it were available.20

Even for developing countries with good intentions of protecting

the environment, multi-billion dollar companies pose a particular regulatory challenge for

small and developing countries that are often financially outmatched, politically

outmaneuvered and are unable or unwilling to assign accountability to the transnational

corporations (TNCs).21

As a consequence, people of underdeveloped countries are at high

risk of negative externalities associated with hazardous waste disposal.

As a leading producer of electronic waste (e-waste),22

the U.S. has made little effort to

curb the negative impact of its waste production activities, including remaining one of only a

few countries yet to ratify the Basel Convention. Although the Resource Conservation and

Recovery Act (RCRA) authorizes the US Environmental Protection Agency (EPA) to impose

economic sanctions for entities failing to meet notification requirements when exporting

waste, the RCRA does not give the EPA authority to stop shipments to consenting importing

countries.23

Because many developing countries often depend on developed nation’s ‘waste’

as a commodity, these developing countries will consent to importing hazardous waste and

subrogate environmental concerns for economic growth.24

Thus, the U.S. regulation does

little to protect those living in countries that reluctantly consent to hazardous waste

importation.

Applicable International Law

The human rights impact of hazardous waste disposal includes, among others, human

death, destruction of land and waterways, contamination of food and drinking water,

20

Id. at 152. 21

Tracy M. Schmidt, Transnational Corporate Responsibility for International Environmental and Human

Rights Violations: Will the United Nations' "Norms" Provide the Required Means? 36 CAL. W. INT'L L.J. 217,

218 (2005) 22

Zelalem Tesfaye Bogale, E-responsibility: E-Waste, International Law and Africa’s Growing Digital

Wasteland, 18 U.C. DAVIS J. INT’L L. & POL’Y 225, 228 (Fall 2011). 23

Pratt, supra note 19, at 171. 24

Id. at 168.

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violating article 6 (right to life) of the International Covenant on Civil and Political Rights,25

article 6 (right to work), article 11(right to adequate standard of living), and article 12 (right

to health) of the International Covenant on Economic and Social Rights. 26

Hazardous electronic waste, specifically, and the current methods of its disposal

particularly threaten children’s health and violate the Convention on the Rights of the Child.27

Children represent a high proportion of the labor force dismantling and disposing of

electronic waste in developing countries,28

and the chemicals within the electronic waste

including lead and cadmium have devastating effects on children’s’ rapidly developing

organs.29

HRA Assessment

Because many developing countries are pigeonholed in this dilemma of choosing

economic growth over environmental protection, the U.S. should take more affirmative steps

to prevent the disposal of hazardous waste by companies to countries that are ill-equipped to

properly dispose of the waste resulting in human rights violations. First, the U.S. can take

strategic measures to minimize the hazardous waste produced within its borders to curb the

inevitable disposal abroad. Second, the U.S. can impose stricter reporting guidelines coupled

with binding sanctions to ensure that the importing nation can properly dispose of the

exported waste.

‘Extended producer responsibility’ (EPR) measures and advanced recovery fees

(ARFs) are examples of effective waste-reduction policy measures which offer a practical

25

International Covenant on Civil and Political Rights art. 6(1), Mar. 23, 1976, 999 U.N.T.S. 171. 26

International Covenant on Economic, Social and Cultural Rights arts. 6, 11, and 12, Jan. 3, 1976, 993

U.N.T.S. 3. 27

Convention on the Rights of the Child art. 24(2)(a), Nov. 20, 1989, 1577 U.N.T.S. 3 (“States Parties shall

pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish

infant and child mortality.”) [hereinafter CRC]. 28

Karimeh Moukaddem, Children on the frontlines: the waste epidemic in Africa, Mongabay.com (Sept. 9,

2011), http://news.mongabay.com/2011/0909-moukaddem_ewaste.html (last visited Feb. 20, 2013). 29

Id.; see also Fangxing Yang et al., Comparisons of IL-8, ROS and p53 responses in human lung epithelial

cells exposed to two extracts of PM2.5 collected from an e-waste recycling area, China, 2011 Environ. Res.

Letters 6, http://iopscience.iop.org/1748-9326/6/2/024013/pdf/1748-9326_6_2_024013.pdf (last visited Feb. 20,

2013).

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framework for placing more burden of waste regulation on governments and corporations

during the production phase of hazardous waste. While maintaining the regulatory role of

governments but shifting waste disposal responsibilities to corporations, these mechanisms

instill costs to the private sector to take responsibility for the pollution created by the

products. Funds generated by the costs will be collected by governments and dispersed to

accredited recycle and disposal organizations. By incorporating this ‘tax’ on specified

products or chemicals, companies will be encouraged both to use less hazardous materials as

well as produce less waste.

In effort to address the mounting problem of e-waste, California’s (ARF) system

focuses on consumers and manufacturers by imposing point-of-purchase recycling fees for

designated electronic devices as well as requires manufacturers to report on current and

future waste-reduction and recycling efforts.30

Coupled with a robust enforcement

mechanism of monetary penalties for noncompliance, the program has resulted in 590

recycling locations and houses twenty percent of America’s electronic waste recycling,

making California a leader in recycling e-waste.31

California’s model can be used to guide a

framework for improving recycling and incentivizing waste reduction throughout the U.S.

and on an international scale.

Although not utilized by many countries, the U.S. should impose stricter regulation

and monitoring to ensure that countries consenting to importation of hazardous waste retain

the technology and training to properly dispose of the particular type of waste imported so as

to properly protect environmental calamities resulting in human rights violations. Intensive

monitoring and inspection efforts would likely be necessary to ensure compliance of

disposing facilities which would require substantial international cooperation.

30

Danielle M. Bergner, The Electronic Waste Recycling Act of 2003: California’s Response to the Electronic

Waste Crisis, 88 MARQ. L. REV. 377, 379-380 (2004). 31

Aaron Ezroj, How the European Union's Weee & Rohs Directives Can Help the United States Develop A

Successful National E-Waste Strategy, 28 VA. ENVTL. L.J. 45 (2010).

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Recommendation

The WG should meet with the EPA and the California State Government to assess the

successes and challenges faced in regulating corporations engaged in the hazardous waste

trade. Additionally, the WG should visit these corporations to determine the extent of the

amount of waste being transported and also to investigate how and why some U.S. companies

are finding ways to dispose of hazardous waste properly either domestically or abroad.

3. Conclusions on Guiding Principles:

HRA understands that during its mission the WG will focus its efforts on assessing

the Guiding Principles as it pertains to business and human rights in the US. While the

Guiding Principles’ oblige corporations to the ‘protect, respect, and remedy’ regime in their

relation to international norms sets a necessary foundation for an international scheme

addressing the corporate impact on human rights, the Principles’ framework lacks the

enforcement assurance necessary for effective resolution of current challenges created by

private prison companies’ efforts to increase prison populations and the hazardous waste

trade.

Experience continues to show that for corporations economic interests trump human

rights concerns. Fear of negative press and subsequent impacts on corporate share valuation

are insufficient to contain corporate human rights abuses because too often these abuses go

unreported and are masked by elaborate corporate responsibility mission statements and

savvy public relations activities.32

Generally, profit-maximization schemes do not include

human rights impacts assessments absent binding sanctions that include criminal and/or

economic penalties.33

The voluntary measures proposed by the Guiding Principles will

32

See Christian Aid, Behind the Mask: The Real Face of Corporate Social Responsibility 3 (2004), available at

http://baierle.files.wordpress.com/2007/11/behind-mask.pdf. 33

Dr. Kiarie Mwaura, Internalization of Costs to Corporate Groups: Part-Whole Relationships, Human Rights

Norms and the Futility of the Corporate Veil, 11 J. Int'l Bus. & L. 85, 92 (2012).

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inadequately regulate corporate conduct and overcome strictly economic motives.34

In an

effort to uphold Resolution 17/4, the Working Group should make recommendations that

move beyond the voluntary nature of the Guiding Principles in support of more binding

enforcement measures on corporations to protect human rights.

34

Id.

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Submitted by Eric Cohen, Chairperson, Investors Against Genocide, on April 12, 2013

Civil Society Consultation of UN Working Group on Business and Human Rights April 23, 2013

As a citizen-led initiative dedicated to convincing mutual funds and other investment firms to make an ongoing commitment to genocide-free investing, we are very interested in the work of the UN Working Group on Business and Human Rights. We would like the working group to consider the following two topics on the Corporate Responsibility to Respect Human Rights.

1) Defining enhanced expectations and special procedures for companies to address the most serious human rights abuses, such as genocide and crimes against humanity

Principle 17 states, “In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence.” It then notes that due diligence “will vary in complexity” based on a number of factors. We recommend that procedures should specifically address companies’ special responsibilities when, for example, operating in a conflict-affected area with widely reported cases of crimes against humanity or a concern of possible genocide.

The guiding principles should include a specific statement that the duty of care expected for human rights due diligence is at its highest when there is the potential for direct or indirect involvement in publicly recognized situations of the most serious human rights abuses, such as genocide and crimes against humanity. Business enterprises operating in these contexts must exercise a maximum effort to ensure that they are not contributing, directly or indirectly, to such abuses.

Two current examples illustrate the importance of and the opportunity for the guiding principles to be more prescriptive about due diligence:

a) For more than a decade, the government of Sudan has been condemned by the United Nations Security Council and the United States, among others, not only for failing in its state duty to protect the human rights of its citizens, but also for direct responsibility for hundreds of thousands of civilian deaths, rapes, and forcible displacement. The president of Sudan and some of his ministers have been indicted by the International Criminal Court for crimes against humanity, war crimes and genocide. Still, four of the largest oil companies in the world, including some who are signatories to the United Nations Global Compact, are ignoring their grave impact on serious and mass human rights violations by helping to fund the government in Khartoum.

b) The conflict in Congo is the deadliest since World War II, claiming more than six million lives since 1998. We know that the war in Congo is fueled by a multi-million dollar trade in illegally extracted minerals that are used in thousands of products, most notably electronics products

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Submitted by Eric Cohen, Chairperson, Investors Against Genocide, on April 12, 2013

such as cell phones and digital cameras. Legislation in the United States is now requiring many electronics companies to report on their mineral supply chains, disclose whether they are sourcing minerals from Congo or its neighbors, and exercise due diligence to ensure that they are not inadvertently serving to fund armed groups committing atrocities there.

In both of the above cases, the Guiding Principles should be more clearly prompting companies to perform and act on the results of due diligence. Without stronger expectations and clearer procedures in the Guiding Principles, it is all too easy for companies to avoid the responsibility to respect human rights and thereby contribute to these worst-case abuses of human rights.

2) Strengthening non-state based grievance mechanisms to avoid lowering the bar for compliance and aid in reinforcing support by companies for the Guiding Principles

Principle 30 states that “Industry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards should ensure that effective grievance mechanisms are available.” The commentary specifies that there must be mechanisms to raise concerns when commitments are not met and to provide for accountability.

Investors Against Genocide supports this principle. However, we also know from experience that is all too easy for UN bodies to avoid challenging signatories or members. For example, the UN Global Compact declined to act when concerns were raised about PetroChina, a signatory to the Global Compact and widely recognized as substantially contributing to genocide in Sudan.

Principle 30 rightly requires an effective grievance mechanism, supporting procedures for accountability and remediation, and a commitment to use those procedures. Good actors may do well without these elements, but bad actors may too easily finesse general guidance to use the framework to insulate themselves from criticism while actually doing little to no good and continuing to support harm.

In conclusion, Investors Against Genocide requests that the working group help to ensure that both due diligence efforts by companies and the grievance mechanisms designed to provide accountability operate at the highest levels of care when companies operate in countries where the most extreme human rights abuses, such as genocide and crimes against humanity, are taking place.

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Contact:  Danika  Littlechild,  Legal  Counsel  International  Indian  Treaty  Council    2940  16th  Street,  Suite  305    San  Francisco  CA  94103  Tel:  (415)  641-­‐4482,  Fax:  (415)  641-­‐1298  Cell:  (780)  312-­‐0246  

CIVIL  SOCIETY  CONSULTATION  FOR  US  COUNTRY  VISIT  OF  UN  WORKING  GROUP  ON  BUSINESS  AND  HUMAN  RIGHTS1  

THE  DUTY  TO  PROTECT  AND  THE  UNITED  STATES:  A  FAILURE  OF  COMPLIANCE  

A  number  of  United  Nations  (UN)  mechanisms,  including  treaty  monitoring  bodies  and  other  UN  processes,  have  underscored  the  failure  of  States  and  other  parties  to  respect  Indigenous  rights  to  self-­‐determination  and  the  principle  of  Free,  Prior  and  Informed  Consent  (FPIC),  resulting  in  a  range  of  pervasive  human  rights  violations.  Implementation  of  the  UN  Guiding  Principles  on  Business  and  Human  rights  are  grounded  in  the  recognition  that  human  rights  and  the  obligation  of  states  to  protect  human  rights  must  be  matched  with  effective  remedies  when  human  rights  are  abused  or  violated.      

THE  HUMAN  RIGHTS  FRAMEWORK  TO  WHICH  THE  UNITED  STATES  IS  COMMITTED  

“…  treaties,  agreements  and  other  constructive  arrangements,  and  the  relationship  they  represent,  are  the  basis  for  a  strengthened  partnership  between  indigenous  peoples  and  States”    

-­‐-­‐-­‐  Preamble,  United  Nations  Declaration  on  the  Rights  of                  Indigenous  Peoples    

 The  US  federal  government  entered  into  and  ratified  more  than  400  treaties  with  Indian  Nations  from  1778  to  1871.  These  Treaties  recognized  and  affirmed  a  broad  range  of  rights  and  relationships.  These  include,  among  others,  mutual  recognition  of  sovereignty  and  consent,  self-­‐determination,  peace  and  friendship,  land  and  resource  rights,  rights  related  to  health,  housing,  education  and  subsistence  (hunting,  fishing  and  gathering),  and  in  some  cases  a  right  of  non-­‐Indigenous  transit  though  Treaty  lands.    Even  though  Congress  decided  to  end  US  Treaty-­‐making  with  Indian  Nations  in  1871,  the  preexisting  Treaties  are  still  in  effect  and  contain  obligations  which  are  legally  binding  upon  the  US  today.    The  US  Constitution’s  reference  to  Treaties  as  “the  Supreme  Law  of  the  Land”  includes  and  encompasses  the  US  obligations  in  accordance  with  Treaties  entered  into  in  good  faith  with  the  original  Indigenous  Nations  of  this  land.    The  US  government,  either  facilitating  or  collaborating  with  private  corporate  and  business  interests,  continues  to  access  Indigenous  Peoples’  lands  for  mineral  development  resulting  in  the  illegal  acquisition  and  appropriation  of  Treaty  Lands  in  the  US  and  elsewhere.      One  of  many  examples  was  the  US  response  to  the  discovery  of  gold  in  the  sacred  Black  Hills  only  6  years  after  they  were  recognized  by  the  1868  Fort  Laramie  Treaty  between  the  US  and  Sioux  Nation  as  belonging  to  the  Lakota  (Sioux)  in  

                                                                                                                         1  We  would  like  to  acknowledge  and  thank  Advocates  for  Environmental  Human  Rights  and  Alaska  Community  Action  on  Toxics  for  their  invaluable  and  substantive  contributions  to  this  submission.  We  also  thank  International  Corporate  Accountability  Roundtable  for  facilitating  our  participation  in  this  Civil  Society  Consultation.  

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perpetuity.2  Gold  mining,  panning  and  related  tours  in  this  sacred  place  continues  to  this  day.    Today,  the  same  site  is  being  considered  for  uranium  mining.3  In  these  and  other  proceedings  affecting  Treaty  rights,  the  US  Treaty  party  has  continued  to  assert  that  they  have  sole  jurisdiction  to  determine,  decide  and  control  the  process  for  redress  of  Treaty  violations  or  to  unilaterally  abrogate  legally  binding  Treaties  based  on  the  “plenary  power  of  congress.”  They  continue  to  make  unilateral  decisions  to  extract  resources  (gold,  uranium,  coal,  timber,  water,  etc.),  and  to  carry  out  development  projects  -­‐  such  as  the  proposed  the  Keystone  XL  Pipeline  and  mining  projects  -­‐  that  are  opposed  by  a  number  of  Indigenous  Treaty  Nations,  as  such  developments  may  constitute  violations  of  rights  held  pursuant  to  Treaty,  affirmed  by  the  US  Constitution  and  described  as  human  rights  under  international  law.  This  denial  of  due  process  has  been  addressed  by  the  Committee  on  the  Elimination  of  Racial  Discrimination  (CERD),  the  treaty  monitoring  body  of  the  International  Convention  on  the  Elimination  of  All  Forms  of  Racial  Discrimination.    The  2006  recommendations  to  the  US  (in  response  to  a  submission  under  the  Early  Warning  and  Urgent  Action  Procedure4  by  the  Western  Shoshone  National  Council  et  al.),  stated  that  the  Indian  Claims  Commission  processes  had  denied  due  process  and  did  not  comply  with  contemporary  human  rights  norms,  principles  and  standards.    The  CERD  expressed  concerns  regarding  the  US  assertion  that  the  Western  Shoshone  lands  had  been  rightfully  and  validly  appropriated  as  a  result  of  “gradual  encroachment”  and  that  the  offer  to  provide  monetary  compensation  to  the  Western  Shoshone,  although  never  accepted,  constituted  a  final  settlement  of  their  claims.    The  International  Indian  Treaty  Council  is  particularly  interested  in  any  responses  which  can  be  provided  to  the  Working  Group  by  the  US  regarding  steps  towards  implementation  of  the  Concluding  Observations  of  the  CERD  addressing  the  impacts  of  corporate  activities,  including  mining  impacting  Indigenous  Peoples’  sacred  and  culturally  significant  areas  in  its  2008  review  of  the  US,  especially  the  recommendations  in  paragraphs  19  and  29  as  follows:          

19.  While  noting  the  explanations  provided  by  the  State  party  with  regard  to  the  situation  of  the  Western  Shoshone  indigenous  peoples,  considered  by  the  Committee  under  its  early  warning  and  urgent  action  procedure,  the  Committee  strongly  regrets  that  the  State  party  has  not  followed  up  on  the  recommendations  contained  in  paragraphs  8  to  10  of  its  decision  1(68)  of  2006  (CERD/C/USA/DEC/1).  (Article  5).  5  The  Committee  reiterates  its  Decision  1  (68)  in  its  entirety,  and  urges  the  State  party  to  implement  all  the  recommendations  contained  therein.    29.  The  Committee  is  concerned  about  reports  relating  to  activities  –  such  as  nuclear  testing,  toxic  and  dangerous  waste  storage,  mining  or  logging  –  carried  out  or  planned  in  areas  of  spiritual  and  cultural  significance  to  Native  Americans,  and  about  the  negative  impact  that  such  activities  allegedly  have  on  the  

                                                                                                                         2  Treaty  With  The  Sioux  (Brulé,  Oglala,  Miniconjou,  Yanktonai,  Hunkpapa,  Blackfeet,  Cuthead,  Two  Kettle,  Sans  Arcs,  And  Santee)  and  Arapaho  15  Stat.,  635.  Ratified,  Feb.  16,  1869.  Proclaimed,  Feb.  24,  1869  Art.16:“The  United  States  hereby  agrees  and  stipulates  that  the  country  north  of  the  North  Platte  River  and  east  of  the  summits  of  the  Big  Horn  Mountains    shall  be  held  and  considered  to  be  unceded  Indian  territory,  and  also  stipulates  and  agrees  that  no  white  person  or  persons  shall  be  permitted  to  settle  upon  or  occupy  any  portion  of  the  same;  or  without  the  consent  of  the  Indians  first  had  and  obtained,  to  pass  through  the  same;”  3  http://www.powertechuranium.com/s/deweyburdock.asp  The  Dewey  Burdock  Project,  Powertech  Uranium  Corp..  4  CERD/C/USA/DEC/1  11  April  2006  5  Committee  on  the  Elimination  of  Racial  Discrimination,  Concluding  Observations  of  the  Committee  on  the  Elimination  of  Racial  Discrimination:  United  States  of  America,  77th  Sess.,  UN  Doc.  CERD/C/USA/CO/6  (2008)  at  para.  19.  

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enjoyment  by  the  affected  indigenous  peoples  of  their  rights  under  the  Convention.  (Articles  5  (d)  (v),  5  (e)  (iv)  and  5  (e)  (vi)).  The  Committee  recommends  that  the  State  party  take  all  appropriate  measures  –  in  consultation  with  indigenous  peoples  concerned  and  their  representatives  chosen  in  accordance  with  their  own  procedures  –  to  ensure  that  activities  carried  out  in  areas  of  spiritual  and  cultural  significance  to  Native  Americans  do  not  have  a  negative  impact  on  the  enjoyment  of  their  rights  under  the  Convention.  The  Committee  further  recommends  that  the  State  party  recognise  the  right  of  Native    Americans  to  participate  in  decisions  affecting  them,  and  consult  and  cooperate  in  good  faith  with  the  indigenous  peoples  concerned  before  adopting  and  implementing  any  activity  in  areas  of  spiritual  and  cultural  significance  to  Native  Americans.  While  noting  the  position  of  the  State  party  with  regard  to  the  United  Nations  Declaration  on  the  Rights  of  Indigenous  Peoples  (A/RES/61/295),  the  Committee  finally  recommends  that  the  declaration  be  used  as  a  guide  to  interpret  the  State  party’s  obligations  under  the  Convention  relating  to  indigenous  peoples.  6  

 The  International  Covenant  on  Civil  and  Political  Rights  also  upholds  rights  impacted  by  corporate  activities  (such  as  mining,  drilling  and  toxic  waste  dumping)  including  the  right  to  culture  and  freedom  of  religion,  in  particular  affecting  sacred  sites  and  religious  practices  (Article  27)  and  well  as  the  right  to  subsistence  (Article  1).  The  adoption  of  the  UN  Declaration  on  the  Rights  of  Indigenous  Peoples  (The  “UN  Declaration”)7  by  the  UN  General  Assembly  on  September  13th,  2007,  represented  a  historic  step  forward  for  Indigenous  Peoples.    Its  numerous  provisions  affirming  the  right  to  FPIC  for  Indigenous  Peoples  provides  a  now-­‐internationally  accepted  framework  for  the  implementation.    These  include  a  just  and  participatory  framework  for  redress,  restitution,  settlement,  repatriation  and  dispute  resolution  affecting  lands  and  resources,  subsistence,  environment  and  cultural  heritage  among  others.  Many  of  the  relevant  provisions  of  the  UN  Declaration  directly  refer  to  FPIC  in  relation  to  rights  affirmed  in  Treaties,  Agreements  and  other  Constructive  Arrangements  between  States  and  Indigenous  Peoples  as  well  as  other  rights.  For  example,  Article  19,  addressing  the  adoption  of  legislative  and  administrative  measures  and  Article  32,  which  addresses  development  activities  affecting  Indigenous  Peoples  lands  and  natural  resources,  contain  some  of  the  broadest  affirmations  in  the  UN  Declaration  of  the  right  to  FPIC  for  Indigenous  Peoples.      Article  10,  which  affirms  that  Indigenous  Peoples  shall  not  be  forcibly  removed  or  relocated  from  their  lands  or  territories  without  FPIC,  is  also  of  direct  relevance  to  land  as  the  central  issue  in  most  rights  violations  being  carried  out  around  the  world.    These  provisions,  as  well  as  others  in  the  UN  Declaration  affirm  the  fundamental  nature  of  the  relationship  between  State  and  Indigenous  parties  enshrined  and  recognized  in  Treaties.    They  also  highlight  some  of  the  most  critical  ways  that  Treaty  Rights  as  well  as  the  related  right  to  FPIC  are  systematically  violated,  not  only  historically  but  in  the  present  day.      

                                                                                                                         6    Committee  on  the  Elimination  of  Racial  Discrimination,  Concluding  Observations  of  the  Committee  on  the  Elimination  of  Racial  Discrimination:  United  States  of  America,  77th  Sess.,  UN  Doc.  CERD/C/USA/CO/6  (2008)  at  para.  29.    7  The  US  became  the  last  country  to  support  the  UN  Declaration  on  December  16th,  2010  and  reiterated  its  support  on  November  1,  2012.  A  number  of  preambular  paragraphs  and  Articles  of  the  UN  Declaration  on  the  Rights  of  Indigenous  Peoples  directly  address  the  rights  of  Indigenous  Peoples,  and  Indigenous  women,  as  well  as  State  obligations  to  take  both  preventative  and  restorative  action.    These  include:  Articles  3,7,8,13,19-­‐22,  24-­‐26,31,32,  37  &  42.  Article  29  (2)(3)  is  of  particular  relevance  in  affirming  the  rights  of  Indigenous  Peoples  and  the  related  obligations  of  the  US  as  a  supporter  of  the  UN  Declaration.      

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UN  AND  INTERNATIONAL  MECHANISMS  CALLING  ON  THE  US  TO  TAKE  MEASURES  TO  PROTECT  THE  HUMAN  RIGHTS  OF  INDIGENOUS  PEOPLES  FROM  EXTRATERRITORIAL  CORPORATE  ACTIVITIES  

In  2001,  the  Special  Rapporteur  on  Adverse  effects  of  the  illicit  movement  and  dumping  of  toxic  and  dangerous  products  and  wastes  on  the  enjoyment  of  human  rights,  Ms.  Fatma-­‐Zohra  Ouhachi-­‐Vesely  visited  the  United  States.  She  found  that  the  United  States  allowed  the  manufacture  and  exportation  of  pesticides  that  were  banned  for  use  in  the  United  States  to  other,  primarily  developing,  countries.  Mme.  Vesely,  reported  that  "US  officials  told  me  that  pesticides  banned  in  the  United  States  but  exported  cannot  be  regulated  if  there  is  a  demand  overseas,  because  of  free-­‐trade  agreements.”8    Ms.  Vesely  stated  that  in  her  view  this  US  policy  is  based  upon  “…  an  untenable  premise  that  pesticides  deemed  unacceptable  for  the  residents  and  environment  of  the  United  States  are  somehow  acceptable  in  other  countries.”    She  expressed  concern  that  that  countries  such  as  the  US  often  choose  to  offer  their  citizens  a  higher  degree  of  protection  than  they  insure  for  others  in  other  countries  and  fail  to  monitor  the  human  rights  impacts  of  this  practice  by  US  corporations.    A  report  based  on  US  Government  Custom  Service  Records,  “Pesticide  Exports  from  U.S.  Ports,  2001–2003”  states  that:      

Analysis  of  U.S.  Custom  Service  records  for  2001-­‐2003  indicates  that  nearly  1.7  billion  pounds  of  pesticide  products  were  exported  from  U.S.  ports,  a  rate  >32  tons/hour.  Exports  included  >27  million  pounds  of  pesticides  whose  use  is  forbidden  in  the  United  States.    WHO  Class  1a  and  1b  pesticides  were  exported  at  an  average  rate  of  >16  tons/day.  Pesticide  exports  included  >500,000  pounds  of  known  or  suspected  carcinogens,  with  most  going  to  developing  countries;  pesticides  associated  with  endocrine  disruption  were  exported  at  an  average  rate  of  >100  tons/day.9  

 Export  of  banned  and  dangerous  toxics  from  the  US  to  “developing”  countries  continues,  with  impacted  Indigenous  and  other  communities  at  the  bottom  end  -­‐  uniformed,  sickened  and  killed.  Human  rights  impacted  include  the  rights  to  health,  life,  subsistence,  and  FPIC  among  others.    Extensive  detail  of  the  documented  impacts,  including  community  testimonies  and  scientific  data  were  included  in  IITC’s  recent  submission  to  the  Working  Group  titled:  Suggestions  of  International  Indian  Treaty  Council  2013  Forum  on  Business  and  Human  Rights  (April  12,  2013).  It  should  be  noted  by  the  Working  Group  that  the  production  and  export  of  banned  pesticides  by  the  US  is  permitted  under  federal  law  (the  Federal  Insecticide,  Fungicide,  and  Rodenticide  Act,  FIFRA)  as  long  as  the  receiving  country  is  informed  of  this  status.      Unfortunately  no  one  informs  the  Indigenous  communities  “on  the  ground”  who  suffer  grave  and  often  deadly  human  rights  consequences.  There  are  equally  important  domestic  impacts  of  such  practices.      A  significant  area  of  the  US  Government’s  regulation  of  business  involves  the  environmental  impacts  of  manufacturing,  commercial  transportation,  and  industrial  waste  disposal.    Any  implementation  of  the  UN  Guiding  Principles  on  Business  and  Human  Rights  to  be  undertaken  by  the  US  Government  and  the  business  sector  will  necessarily  involve  the  US  environmental  regulatory  system.    However,  the  success  of  such  implementation  is  greatly  challenged  by  the  fact  that  the  protection  of  human  rights  and  the  remedy  of  a  human  rights  violation  are  omitted  from  the  environmental  regulatory  system.    The  sobering  fact  is  that  businesses  are  routinely  permitted  by  US  environmental  laws  and  regulations  to  abuse  human  rights.      It  is  pursuant  to  the  US  environmental  regulatory  system  that  Indigenous  Peoples,                                                                                                                            8    U.N.  Deems  Export  of  Banned  Pesticides  Immoral,  U.S.  Newswire,  202-­‐347-­‐2770/  12/17  16:09  9  Pesticide  Exports  from  U.S.  Ports,  2001–2003  Carl  Smith,  Kathleen  Kerr,  Md,  Ava  Sadripour,  Esq.  International  Journal  of  Occupational  and  Environmental  Health  ,Vol.  14/No.  3,  JUL/SEP  2008    

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people  of  color  and  poor  communities  are  subjected  to  toxic  and  hazardous  industrial  operations  which  include  exposure  to:    

• the  daily  release  into  the  air,  water,  and  land  of  industrial  toxic  chemicals,  the  amount  and  effects  of  which  are  ineffectively  quantified  and  largely  disregarded  pursuant  to  environmental  laws  and  regulations;    

• the  production  of  banned  and  severely  restricted  pesticides  that  are  illegal  for  use  in  the  United  States  but  are  exported  for  sale  in  foreign  countries  by  25  companies  operating  28  facilities  in  23  states  pursuant  to  environmental  laws  and  regulations;10  and    

• the  ever-­‐present  risk  of  lethal  and  injurious  industrial  facility  accidents  occurring  in  close  proximity  to  homes,  schools,  recreational  areas,  and  places  of  worship.      

 Compounding  the  failure  of  the  US  environmental  regulatory  system  to  protect  human  rights  is  the  fact  that  the  US  legal  system  provides  no  remedy.    In  March  2010,  the  Inter-­‐American  Commission  on  Human  Rights  (“IACHR”)  of  the  Organization  of  American  States  ruled  that  the  US  legal  system  does  not  afford  a  legal  remedy  for  the  violation  of  the  human  rights  to  racial  equality  and  privacy  arising  from  governmental  permitting  decisions  that  create  discriminatory  pollution  burdens  on  an  African  American  community.11    This  ruling  was  pivotal  to  the  IACHR  taking  jurisdiction  over  its  first  case  of  environmental  racism  in  the  United  States  brought  by  African  American  residents  of  the  historic  community  of  Mossville,  Louisiana,  which  is  captioned  as  Mossville  Environmental  Action  Now  v.  United  States  of  America,  Case  No.  12.255.        Although  the  US  Government  has  long  recognized  disproportionate  toxic  pollution  burdens  on  Indigenous  Peoples,  African  Americans,  Latinos,  Asian  Americans,  Pacific  Islanders  and  the  poor,  it  has  not  viewed  these  burdens  as  a  violation  of  the  legal  duty  of  government  to  protect  human  rights.12    However,  diverse  members  of  civil  society  have  termed  racially  disproportionate  toxic  pollution  burdens  and  the  depletion  of  natural  resources  as  environmental  racism  and  environmental  injustice,  and  define  such  injustice  as  a  violation  of  fundamental  human  rights.13    In  addition,  the  international  legal  community  of  human  rights  jurists  recognizes  that  what  constitutes  environmental  injustice  and  environmental  racism  also  violates  human  rights.14    On  December  3rd  2011,  27  years  later  after  the  Bhopal  disaster  caused  by  the  release  of  toxic  pesticides  from  the  Union  Carbide  factory  in  Bhopal  India  killed  over  25,000  people,  the  Permanent  Peoples  Tribunal  (PPT)  convened  in  Bangalore  India  with  an  international  panel  of  5  judges.    Based  on  

                                                                                                                         10  IITC  submitted  a  Freedom  of  Information  Act  Request  with  Advocates  for  Environmental  Human  Rights  in  March  of  2012  and  received  a  response  from  the  US  Environmental  Protection  Agency  in  July  of  2012  that  included  this  information.  This  includes  the  production  and  export  of  Endosulfan,  which  was  added  to  the  Stockholm  Convention  on  Persistent  Organic  Pollutants  list  in  2011.  11  Inter-­‐American  Commission,  Report  No.  43/10,  Petition  No.  P-­‐242-­‐05,  Mossville  Environmental  Action  Now  (United  States)  paragraphs  33  and  34.  12  See  Presidential  Executive  Order  No.  12,898,  Federal  Actions  to  Address  Environmental  Justice  in  Minority  Populations  and  Low-­‐Income  Populations,  February  11,  1994.  13  See  First  National  People  of  Color  Environmental  Leadership  Summit,  Principles  of  Environmental  Justice,  Principle  10.  14  See  Mossville  Environmental  Action  Now,  Inc.  et  al,  Amended  Petition,  Petition  No.  P-­‐242-­‐05  June  23,  2008,  pp.  85-­‐88  (analyzing  the  observations  and  decisions  rendered  by  UN  treaty  monitoring  bodies  and  regional  human  rights  systems  pertaining  to  environmental  racism).  

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testimonies  and  statements  about  health  and  other  human  rights  violations  caused  by  pesticides  from  communities  around  the  world,  including  Indigenous  communities  from  Alaska,  Mexico,  Peru  and  elsewhere,  the  Tribunal  delivered  a  scathing  indictment  of  the  pesticide  industry.  It  focused  on  the  “Big  6”  agrochemical  giants,  the  Multi-­‐national  Corporations  (MNC’s)  Monsanto,  Syngenta,  Dow,  DuPont,  Bayer,  and  BASF  (Dow  bought  Union  Carbide  in  2001).  Blame  for  the  agrochemical  industry’s  human  rights  abuses  was  also  assigned  to  the  three  States  where  these  corporations  are  headquartered—the  United  States,  Switzerland,  and  Germany.  As  stated  in  the  PPT’s  findings,  these  countries  “failed  to  comply  with  their  internationally  accepted  responsibility  to  promote  and  protect  human  rights,  especially  of  vulnerable  populations.”  At  least  two  of  these  six  companies,  Bayer  and  Monsanto  are  on  the  list  of  companies  provided  to  IITC  and  AEHR  in  response  to  their  FOIA  Request15  that  are  producing  pesticides  for  export  only  in  the  US.      In  2008,  for  the  periodic  country  review  of  United  States  by  the  CERD,  the  International  Indian  Treaty  Council  coordinated  a  joint  Indigenous  Peoples  shadow  report  which  included  testimony  and  documentation  addressing  the  human  rights  impact  of  the  production  and  export  of  toxic  pesticides,  including  tons  of  pesticides  banned  for  use  in  the  US  due  to  ample  proof  of  severe  health  impacts  including  cancers  and  birth  defects.  In  response  the  CERD  made  the  following  recommendation  to  US  (2008)  regarding  its  duty  to  protect  Indigenous  Peoples  outside  the  US  against  human  rights  abuses  by  companies  it  licenses:      

30.  The  Committee  notes  with  concern  the  reports  of  adverse  effects  of  economic  activities  connected  with  the  exploitation  of  natural  resources  in  countries  outside  the  United  States  by  transnational  corporations  registered  in  the  State  party  on  the  right  to  land,  health,  living  environment  and  the  way  of  life  of  indigenous  peoples  living  in  these  regions.    In  light  of  article  2,  paragraph  1  (d),  and  5  (e)  of  the  Convention  and  of  its  general  recommendation  no.  23  (1997)  on  the  rights  of  indigenous  peoples,  the  Committee  encourages  the  State  party  to  take  appropriate  legislative  or  administrative  measures  to  prevent  acts  of  transnational  corporations  registered  in  the  State  party  which  negatively  impact  on  the  enjoyment  of  rights  of  indigenous  peoples  in  territories  outside  the  United  States.  In  particular,  the  Committee  recommends  that  the  State  party  explore  ways  to  hold  transnational  corporations  registered  in  the  United  States  accountable.  The  Committee  requests  the  State  party  to  include  in  its  next  periodic  report  information  on  the  effects  of  activities  of  transnational  corporations  registered  in  the  United  States  on  indigenous  peoples  abroad  and  on  any  measures  taken  in  this  regard.16  

RECOMMENDATIONS  

The  US  should  ensure  that  its  own  environmental  and  toxics  regulatory  laws  as  well  as  the  actions  of  corporations  its  licenses  are  in  compliance  with  International  Human  Rights  standards  including  nation-­‐to-­‐nation  Treaty  obligations,  recommendations  of  treaty  monitoring  bodies  and  the  UN  Declaration  on  the  Rights  of  Indigenous  Peoples.        

                                                                                                                         15  Supra,  footnote  10  16    Concluding  Observations  of  the  UN  Committee  on  the  Elimination  of  Racial  Discrimination,  United  States  of  America  [CERD/C/USA/CO/6  May  8th  2008]  

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The  US  should  establish  effective  mechanisms  for  oversight,  monitoring  and  prevention  of  human  rights  and  Treaty  violations  carried  out  by  US  corporations  affecting  Indigenous  Peoples  in  accordance  with  the  framework  of  the  UN  Declaration  on  the  Rights  of  Indigenous  Peoples.    The  US  should  implement  effective  measures  to  monitor  corporate  and  business  activities  impacting  the  enjoyment  of  human  rights  of  Indigenous  Peoples  both  in  and  outside  US  to  ensure  that  they  are  in  compliance  with  human  rights  standards  as  per  the  CERD  recommendations  and  Concluding  Observations  to  the  US  in  2006  and  2008.    We  urge  the  State  Department  to  address  the  omission  of  human  rights  in  the  US  Government’s  environmental  regulatory  system.    The  State  Department’s  interest  in  implementing  the  UN  Guiding  Principles  on  Business  and  Human  Rights  provides  an  excellent  opportunity  to  engage  civil  society  in  developing  standards  for  preventing  environmental  injustice  and  racism  in  the  United  States  and  ensuring  that  these  standards  extend  to  the  conduct  of  US  businesses  in  other  countries.    The  State  Department  should  view  this  as  a  mission-­‐critical  undertaking  that  entails  a  transparent  and  public  process  for  identifying  the  areas  in  the  US  environmental  regulatory  system  that  fail  to  protect  human  rights  and  promoting  human  rights-­‐based  reforms  of  the  system.      We  suggest  that  key  staff  in  the  State  Department  review  the  literature  on  environmental  human  rights  law  and  environmental  justice.    We  recommend  that  the  review  include  the  worldwide  survey  of  environmental  human  rights  law  prepared  by  the  US  representative  on  the  Inter-­‐American  Commission  on  Human  Rights  of  the  Organization  of  American  States,  Professor  Dinah  Shelton,  and  other  legal  experts.17    Additionally,  the  State  Department  staff  should  review  the  NGO  report  Toxic  Waste  and  Race  at  20,  which  provides  a  twenty-­‐year  assessment  of  environmental  racism  in  the  United  States  since  1987.18            

                                                                                                                         17  Joint  UN  Environmental  Programme  and  UN  Office  of  the  High  Commissioner  on  Human  Rights  Expert  Seminar  on  Human  Rights  and  the  Environment,  Jan.  14-­‐16,  2002,  Geneva.    See  the  six  Background  Papers  available  at:    http://www2.ohchr.org/english/issues/environment/  environ/index.htm.  18  Robert  Bullard,  Paul  Mohai  et  al,  Toxic  Wastes  and  Race  at  Twenty,  1987-­‐2007:  Grassroots  Struggles  to  Dismantle  Environmental  Racism  (United  Church  of  Christ)  2007,  available  at:    http://www.ejrc.cau.edu/TWARTFinal.htm.  

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