Compendium - UNWG US Civil Society Consultation

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

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II.

First Peoples Worldwide

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III. World Organization Against Torture (OMCT) & the International Federation for Human Rights

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IV. NGO Committee to Stop Trafficking in Persons

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V.

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Human Rights Advocates

VI. Investors Against Genocide

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VII. International Indian Treaties Council

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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 1 first public report on its efforts to implement the Voluntary Principles on Security and Human Rights.

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.

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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 2 society and others in implementing human rights due diligence elements of the UNGPs. In addition, ICAR has recently launched a “Government Procurement Project” that is highly relevant to the U.S. 3 government. 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

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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.

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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 4 appropriate in all the circumstances.” 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 5 complainants are most fluent.

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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

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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/2012/02/6.23.11OECD-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. 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 7 absence of due transparency. 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 8 and used to inform future OPIC lending.

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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 9 assessment, stating only that it might be “appropriate” in limited high-risk circumstances. 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 10 supported Sasan Coal Power Plant in India. 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/2013/03/4.12.12OPIC-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/wpcontent/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 11 House bill, 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-banksfunding-massive-coal-plant (indicating “South African environmental groups requested an investigation” by ExIm 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 businessrelated 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 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 2

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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/ObservatoryProtection HRD.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-inoh/nTgQ5/.

9 Belinda 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).

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 11

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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-outarizona/2011/07/20/arizona’s-private-prison-pay-to-play-scandal-widens-chair-of-house-appropriationscommittee-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).

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).

19

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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.

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.

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).

26

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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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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 Submitted by Eric Cohen, Chairperson, Investors Against Genocide, on April 12, 2013 C-30

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 â&#x20AC;&#x153;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.â&#x20AC;? 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.

Submitted by Eric Cohen, Chairperson, Investors Against Genocide, on April 12, 2013 C-31

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 RIGHTS 1 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).

5 (Article 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..

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 6 Convention relating to indigenous peoples.

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 th The US became the last country to support the UN Declaration on December 16 , 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 9 exported at an average rate of >100 tons/day.

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 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 10 environmental laws and regulations; 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 16 and on any measures taken in this regard.

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 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

Joint UN Environmental Programme and UN Office of the High Commissioner on Human Rights Expert Seminar

17

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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