Human rights defenders in the EU's corporate governance initiative
Anna Triponel
January 28, 2022
Our key takeaway: Mary Lawlor, UN Special Rapporteur on the situation of Human Rights Defenders, highlights the central role human rights defenders play in a company’s human rights due diligence. There are a number of ways the upcoming EU law can capture this.
Mary Lawlor, UN Special Rapporteur on the situation of Human Rights Defenders, has released the recommendations she provided to the EU Commissioners to feed into the development of the EU’s legislative initiative on sustainable corporate governance (‘Position paper: concerning Human Rights Defenders and the EU’s mandatory due diligence initiative’):
The importance of human rights defenders for companies’ human rights due diligence: Lawlor emphasizes that “human rights defenders are vital to ensuring corporate respect for human rights and the healthy environment that many rights rely on.” And yet “human rights defenders all over the world, including women and indigenous human rights defenders, face retaliation when raising human rights and environmental concerns connected with corporate activity, including within the value chains of EU companies.” In particular, “[t]hey take a stand for human rights and the environment outside of any structure that might offer them access to pre-existing protection or support mechanisms, such as trade unions or non-governmental organisations.” Lawlor underscores the severity of the risks which include death, but also “smear campaigns, verbal or physical intimidation and violence, surveillance online and offline, criminalisation, destruction of property and discrimination in employment.”
Six specific asks of the EU Commission: Lawlor calls for six provisions in the upcoming law. (1) Include “human rights defenders as named stakeholders with whom EU companies and those accessing the internal market be obliged to consult in the exercise of their due diligence duty.” (2) Provide for a “negative obligation on EU companies and those accessing the internal market to refrain from retaliation of any sort against human rights defenders and others raising concerns as to the negative human rights and environmental impact, or risk thereof, arising from their business activities and/or business relationships.” (3) Provide for a “positive obligation on EU companies and those accessing the internal market to prevent retaliation against human rights defenders and others raising concerns.” (4) Provide for “criminal liability in cases where EU companies and those accessing the internal market have caused, or can reasonably be deemed to have contributed to, severe retaliation against human rights defenders.” (5) Provide “civil liability for damages in cases where human rights defenders have suffered retaliation, of any level of severity.” (5) Request that Member States “extend legal protection for sources, as already afforded to journalists in many jurisdictions, to human rights defenders bringing legal actions on behalf of affected communities and individuals under the provisions of the Directive, to the effect that they would not be obliged to disclose the names of those affected in the course of their action, and thereby avoid potentially exposing them to retaliation.”
Existing protections: Lawlor references several instruments at the international, EU and national levels that already include similar provisions, and concludes with examples of how organisations, investors and companies, are already implementing similar provisions. She observes that “[o]ne of the clearest ways in which the business community has contributed to preventing retaliation against human rights defenders speaking out about negative human rights or environmental impacts connected to their operations has been through issuing public positions of zero-tolerance to any such form of retaliation and communicating this position to their subsidiaries, suppliers and subcontractors.” She provides examples from The adidas Group and Wilmar.
