States have a legal duty and should take a range of concrete measures to respect, protect, promote and facilitate the work of economic, social and cultural rights defenders, says Professor Ben Saul.
By Ben Saul, Professor of International Law at the University of Sydney
In 2015 indigenous rights activist Berta Cáceres was awarded the Goldman Environmental Prize for her courageous campaigning – in the face of death threats – against hydropower dams in Honduras. Less than a year later, she was murdered, despite her international profile and the protections ordered by the Inter-American Commission on Human Rights.
An escalating global war is being waged on defenders of economic, social and cultural rights (‘ESCRs’). In too many countries, unrestrained violence accompanies development, whether dams, mining, logging, or agribusiness. The NGO Global Witness reported 116 killings of land and environment defenders in 17 countries in 2014, 40% of whom were indigenous.
Impunity commonly prevails, even if the perpetrators are known. States are often implicated in the violence or legal repression, or fail to control private abuses by landowners, corporations, security companies, paramilitaries, criminal gangs, or armed groups.
Attacks on human rights defenders are attacks on the international community. They strike not only at the values of the United Nations and the post-war moral order, but also at the international laws adopted to enshrine and safeguard fundamental rights.
As a creature of its time, the International Covenant on Economic, Social and Cultural Rights of 1966 (‘ICESCR’) does not directly refer to what we today call ‘human rights defenders’. Yet, the states that drafted the ICESCR were well aware of the need to protect those who defend ESCRs.
That acknowledgement is most explicit in relation to the ICESCR’s work rights. Article 8 requires states parties to ensure the right of everyone to form and join trade unions, the right of trade unions to function freely, and the right to strike. In essence these are explicit guarantees for labour rights defenders. As Pakistan said in 1957, people can ‘exert their influence only by joining forces with others’ and the same is true of the defence of many other rights. More recently, in its March 2016 General Comment on the right to just and favourable conditions of work under Article 7 of ICESCR, the Committee on Economic, Social and Cultural Rights (‘CESCR’) said, ‘Human rights defenders should be able to contribute to the full realisation of Covenant rights for all, free from any form of harassment. States parties should respect, protect and promote the work of human rights defenders and other civil society actors towards the realisation of the right to just and favourable conditions of work’.
At the time of the ICESCR’s drafting, labour rights defenders received special protection because of post-war economic and political priorities and shared national histories of labour activism. Many states observed, however, that trade union rights were just one example of the exercise of general freedoms of association and expression to advance human rights.
In this respect, the indivisibility, interdependence and inter-relatedness of human rights, endorsed at the Vienna Conference in 1993, explain why states are legally required to protect the defenders not only of labour rights but all ESCRs. Civil and political freedoms of expression, association and movement are vital to enable people to mobilise to defend ESCRs. Consequently, CESCR’s March 2016 General Comment calls on states not only to protect defenders, but to ‘facilitate access to information and enable the exercise of their rights to freedom of expression, association, assembly, and public participation’ as part of their work to secure just and favourable conditions of work for all..
This relationship between ESCRs and civil and political rights also indicates why attacks on defenders of ESCRs are so pernicious. They undermine people’s ability to secure survival rights to food, water, health, housing, work, welfare and an adequate standard of living. But they also destroy the peaceful, respectful, deliberative civil and political life upon which our common freedom and security depends. Speech is replaced by violence and fear when defenders are attacked or threatened.
In contemporary international law, it is well accepted that the ICESCR imposes duties on states to ‘respect’, ‘protect’ and ‘fulfil’ its rights. Properly understood, these obligations already safeguard the work of defenders of ICESCR rights.
Firstly, the obligation to respect requires states to refrain from interfering in rights – including in advocacy or action by individuals or groups to secure ESCRs for themselves or others. This means that states are obliged not to attack rights defenders, whether through violence, threats or legal repression. Too many states have abusively criminalised and arbitrarily detained defenders, suppressed social protest or NGO activity, or misapplied defamation or even counter-terrorism laws to legitimate advocacy or dissent.
Secondly, the obligation to protect rights against private interference demands that states prevent attacks on rights defenders by non-state actors. This includes preventing harm by paramilitaries, armed groups, security contractors and corporations. In some cases this will require states to physically protect defenders, their premises or communities, as through police protection.
Thirdly, the obligation to fulfil requires states to take positive measures by facilitating, promoting and providing rights. In this regard, the duty to facilitate rights can be pursued through the adoption of national laws, policies and practices that recognize and protect the role of ESCRs defenders. As the Special Rapporteur on Human Rights Defenders suggested in 2016, national protection frameworks should include emergency and preventive measures directed at ensuring the physical safety, digital security, and psycho-social well-being of defenders.
National action should also extend to providing information about activities that adversely affect ESCRs; opportunities for public consultation and participation in development decisions; and rights-compliant regulation of corporations involved in development or service privatisation.
The duty to promote rights may be pursued through measures to educate and raise awareness about the protected role of rights defenders, including amongst public officials, law enforcement, the judiciary, parliamentarians, the media, and private actors. This should include measures to combat racism and stigmatisation of indigenous activists whose ESCRs are at risk, and a recognition of the specific vulnerabilities faced by women defenders.
In authoritatively interpreting ICESCR rights, CESCR has repeatedly affirmed the above duties. It has emphasised that states parties ‘should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society’, to assist vulnerable or marginalised groups in realizing their ESCRs.
The overarching obligation to remedy rights violations additionally means that states must investigate, prosecute and punish those who attack defenders, and compensate the victims. In monitoring states, UN treaty bodies such as the CESCR, Human Rights Committee and Committee on the Elimination of Racial Discrimination have repeatedly urged states to remedy violations against defenders of ESCRs, and to strengthen protection and accountability.
Ultimately, measures to protect rights defenders will only have cosmetic effects until the structural causes of attacks are adequately addressed. In too many countries, the political economy of development drives the violence that underpins colossal land-grabbing, inequitable and unsustainable exploitation of natural resources, the destruction of traditional livelihoods and indigenous ways of life, and the impoverishment of many who are already marginalised.
These are not merely local struggles for justice, but concern the whole international community. Foreign states, donors, and global civil society are entitled to protect defenders where local governments fail to live up to their responsibilities – for instance, through visits and monitoring, funding, reporting, diplomatic protest, and relocation and asylum. These are not unfriendly acts of interference in domestic affairs, but necessary and legal measures to protect human dignity.
Ben Saul is Professor of International Law at the University of Sydney, lead author of the Oxford Commentary on the ICESCR (2014), and a barrister in international tribunals. Follow him on Twitter @ProfBenSaul.