CAPE TOWN HUB: SKILL SHARE SESSION: ‘Conservation Standards’: From rights to responsibilities

Skill Share Presenter: Harry Jonas

With the recognition of the scope for human rights violations in the name of conservation, Harry Jonas and Jael Makagon, set out to produce a set of ‘Conservation Standards’. Harry Jonas, our Program Director, shared the work they produced at the monthly Skill and Information Sharing Session.  

He set out the purpose of these ‘Conservation Standards’  to serve as guidance to right-bearers and stakeholder groups involved in conservation interventions. It aims to be as clear as possible on what precisely are the standards to be complied with when undertaking conservation initiatives. These standards are specifically based on the rights of indigenous peoples, with a focus on the law as it is stated in the United Nations Declaration on the Rights of Indigenous Peoples. This declaration is an articulation of already established customary international norms and standards as found in international law.

He also discussed the importance of the Whakatane Mechanism in relation to the Conservation Standards. The Whakatane Mechanism serves as a redress mechanism in assessing disputes arising in different protected areas around the world.

Natural Justice presented these ‘Conservation Standards’ at the World Conservation Congress in Hawaii early September 2016. It is also currently being discussed at a meeting in Geneva hosted by the UN Special Rapporteur on human rights and the environment, and will be further discussed at a meeting focusing on the Whakatane Mechanism in October.

Conservation Standards

Whakatane Mechanism

Workshop report on “The Future Development Finance and Accountability Landscape” available online

On 21-22 April 2016 a brainstorming workshop on “The Future Development Finance and Accountability Landscape” was organized by Natural Justice, Columbia University’s Institute for the Study of Human Rights, Center of Concern, the Heinrich Böll Foundation, and Inclusive Development International, with the support of the 11th Hour Project. The aim of the workshop was to bring together experts in finance, development finance, infrastructure development, and human rights to build an understanding of the current and future infrastructure financing system and develop a plan for where to focus efforts in order to ensure that financers of infrastructure are accountable to international human rights standards.

The workshop served as an opportunity for people from many different backgrounds – private finance, pension funds, the UN, civil society, academics, and others – to sit together and share information and experiences on financing infrastructure. One of the key take aways from the workshop was that while so called “downstream” accountability (e.g. remedies after harm has occurred) is critical, building more accountability at the “upstream” (e.g. project design, procurement) level is equally important. Unless human rights impacts are taken into account in project design and financing, communities will always be playing catch up during implementation.

The workshop report can be found here.

UN Special Rapporteur Holds Dialogue on Indigenous Peoples' Rights and Conservation Activities

On 11 May 2016, Victoria Tauli-Corpuz, UN Special Rapporteur on the rights of indigenous peoples, held a dialogue on Indigenous peoples’ rights and conservation activities with conservation NGOs during the 15th UN Permanent Forum on Indigenous Issues. The Dialogue provided an opportunity for conservation NGOs to provide the Special Rapporteur with information for a report on the issues that she will be submitting to the UN General Assembly in 2016. The Special Rapporteur will also transmit her recommendations on conservation and indigenous peoples' rights to the IUCN World Conservation Congress in September 2016.

Several large conservation NGOs, as well as Natural Justice, attended the Dialogue. Among many issues addressed, one organization mentioned the need for practical guidance on multi-actor involvement in conservation initiatives, and, in particular, best practices regarding indigenous peoples. Another noted that there is a continuing gap between policies--both international and organizational--and project design, implementation and monitoring. Related to this it was noted that there is a need to develop a better understanding of customary governance of the environment and the natural resources that indigenous peoples steward and rely upon. Others agreed that monitoring and evaluation of conservation activities represents a challenge.

Natural Justice had the opportunity to intervene, and we noted the work we are doing to, among other things, identify the international human rights responsibilities and obligations of conservation actors. It is generally accepted that States have the primary duty to protect human rights. However, NGOs have a responsibility to respect human rights that is analogous to the responsibility of businesses to respect human rights as enumerated in the UN Guiding Principles on Business and Human Rights.

We noted that this conclusion is important for two reasons. First, it means that the policies of conservation NGOs regarding indigenous peoples should flow from international human rights sources, such as the UN Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169. In other words, conservation NGOs should develop such policies not as a voluntary exercise but rather as part of satisfying their international human rights responsibilities. Second, if NGOs take the position that they do have the responsibility to respect human rights as enumerated in the UN Declaration and other international instruments, there could be a positive influence on States as well, which often ignore these instruments despite the fact that they have adopted or ratified them.

The Dialogue closed with the Special Rapporteur noting that there have been positive outcomes of indigenous peoples allying themselves with conservation organizations. At the same time, the reality is that problems regarding conservation activities are occurring as well. The Special Rapporteur looked forward to continuing discussions as she works toward finalizing her report for the UN General Assembly.

Natural Justice Co-Hosts Brainstorming Workshop on “The Future Development Finance and Accountability Landscape”

With the world on the brink of the biggest infrastructure boom in history, infrastructure project funding is increasingly slated for the Global South. Here the projects are often located in environmentally and socially sensitive areas, including on lands inhabited by indigenous peoples and other vulnerable groups. While these projects can have great benefits, they can equally constitute serious threats to already marginalized groups. At the same time, the models for financing new infrastructure are growing increasingly complex, with the creation of new institutions such as the Asian Infrastructure Investment Bank and the Global Infrastructure Facility, and a call for growing private sector involvement. 

Against this backdrop, Natural Justice, Columbia University’s Institute for the Study of Human Rights, Center of Concern, the Heinrich Böll Foundation, and Inclusive Development International, with the support of the 11th Hour Project, co-organized a brainstorming workshop to bring together experts in finance, development finance, infrastructure development, and human rights. The workshop took place over two days (21-22 April 2016) at Columbia University. The purpose of the workshop was to build an understanding of the current system and projected future financial models and develop a plan for where to focus efforts in order to ensure that financers of infrastructure are accountable to international human rights standards.

The workshop served as an opportunity for people from many different backgrounds – private finance, pension funds, the UN, civil society, academics, and others – to sit together and share information and experiences on financing infrastructure. It was clear from the workshop that while so called “downstream” accountability (e.g. remedies after harm has occurred) is critical, building more accountability at the “upstream” (e.g. project design, procurement) level is equally important. Unless human rights impacts are taken into account in project design and financing, communities will always be playing catch up during implementation.

UN calls for Human Rights to be promoted in Climate Change Negotiations

A Group of Experts has written an open letter to all Governments involved in the current round of climate negotiations, asserting that climate change interferes with the enjoyment of human rights recognised and protected by international law. The calls came ahead of the meeting in Bonn (20-25 October) of the Ad Hoc Working Group on the Durban Platform for Enhanced Action, to discuss the application of the Climate Change Convention principles, as well as measures for mitigation of, and adaptation to the impacts of climate change. The experts have underscored the need for urgency in addressing this topic due to the approaching deadlines for the climate negotiations to reach a concrete solution. Following the ADP meeting in Bonn, the Conference of the Parties to the UNFCCC meets this December in Lima (COP 20), with the goal of adopting a new legal instrument at its next meeting, in Paris in December 2015 (COP 21).

Legal and Conflict Transformation/Negotiation Training in Manicaland, Zimbabwe

From September 29 to October 3, Stephanie Booker of Natural Justice hosted 5 days of legal and negotiation training in Manicaland, Zimbabwe, with Chiadzwa Community Development Trust and members of communities from Mutare and Arda Transau. The meeting was supported by Ford Foundation Southern Africa and the Heinrich Boll Foundation.

Supported by the legal expertise of the Zimbabwe Lawyers for Human Rights and the Zimbabwe Environmental Law Association, participants were led in two-day training, discussions and information sharing on relevant laws and policies in Zimbabwe with respect to the environment and human rights and regional and international law.

From 1 - 3 October, Zimbabwean organisation Centre for Conflict Management and Transformation led an interactive training with participants on inter-community conflict and general principles of engaging with external actors. The sessions gave insight on engaging an issue from different perspectives.

The training session complemented the existing community protocol processes being engaged in the community at present. In addition, a small number of participants from mining impacted communities across Zimbabwe took the opportunity to join the much-sought after training, to learn from about relevant laws and policies and to share experiences with community members across Zimbabwe.

International Conference Held on Role of Human Rights in Global Issues

On 5 September 2014, the 3rd UNITAR-Yale Conference on Environmental Governance and Democracy was held at Yale University. The conference brought together a wide range of participants, including representatives of UN agencies, NGOs, academics, human rights defenders and others to discuss issues related to "Human Rights, Environmental Sustainability, Post 2015 Development Agenda, and the Future Climate Regime" (the conference theme). The goal of the conference was to develop actions and recommendations for policy makers involved in these issues. Natural Justice attended the conference and also submitted a case study paper on community protocols in Ghana and Kenya.

The conference began with a keynote speech from Professor John Knox, the UN Independent Expert on human rights and the environment. He noted that every regional agreement since 1970 has adopted some form of a right to a healthy environment and that 90 countries now provide for a right to a healthy environment in their constitutions. He also noted several benefits of a human rights based approach to the environment, including the fact that it sets out rules for environmental policy making, such as duties to conduct impact assessments, make information public, and allow for participation in decision making.

The urgent need to protect and promote the human right to water in the UN Sustainable Development Goals

In response to the exclusion of the human right to water from the Zero Draft of the Sustainable Development Goals (SDGs) published on June 2nd, recognizing the significance the SGDs will have on the UN development agenda for the next 15 years, and echoing civil society’s consistent demands for a rights-based framework of the SDGs, nearly 300 organisations, including Natural Justice, cosigned a letter titled, “The urgent need to protect and promote the human right to waterand sanitation in the UN Sustainable Development Goals.”

CIEL Guide on Amici in international investment arbitration

Non governmental organizations that work in the area of international investment litigation have been bolstered in their defense of public interest, thanks to the new Guide for Potential Amici in International Investment Arbitrations. This joint publication by the Center for International Environmental Law (CIEL) and the International Human Rights Program at the University Of Toronto Faculty Of Law explains when and how NGOs can strategically intervene as a third party in international investment arbitrations as an amicus curiae (friend of the court).

The guide also provides background on why international investment disputes arise, the ways in which human rights can be implicated, and how amicus curiae can bolster human rights in investment disputes. 

In particular, this guide  focuses on the potential of filing amicus submissions at the International Centre for Settlement of Investment Disputes (ICSID), which specializes in disputes between governments and companies.

Given the opacity of ICSID-arbitrated proceedings, there is a clearly identified need for NGOs, acting as amici, to highlight human rights concerns, and focus attention towards public interest issues.

The full report, with annexes is available here.

ICMM Human Rights and Indigenous Peoples Workshop

From 29 to 30 January 2014, Stephanie Booker of Natural Justice participated in a multi-stakeholder workshop hosted by the International Council on Mining and Metals in Johannesburg. Participants included Indigenous representatives, representatives from local and regional non-government and civil society organisations, academia and representatives from ICMM member companies throughout the continent. The event was co-facilitated by the Institute of Business and Human Rights.

The two-day workshop included:

• An overview and introduction to the international policy landscape and ICMM's guidance policies on human rights and indigenous peoples;
• A discussion of the challenges around human rights and indigenous peoples in the African context;
• An examination of case studies from the region;
• Prioritisation of challenges that were to be addressed.

Some of the central themes discussed included inclusive and representative engagement; grievance mechanisms; compensation; free prior and informed consent; corporate transparency; and benefit sharing.

The workshop was a unique opportunity to share ideas and experiences with a range of different stakeholders.

Natural Justice Attends Side Event During UN GA on the Role, Protection and Effective Participation of Human Rights Defenders in Development

On 29 October 2013, Eli Makagon attended a side-event held by the International Service for Human Rights at United Nations headquarters in New York. The side-event, held during the UN's ongoing 68th General Assembly meeting, was entitled The Role, Protection and Effective Participation of Human Rights Defenders in Development, and brought together panelists, including Margaret Sekaggya, UN Special Rapporteur on the situation of human rights defenders and Pavel Sulyandziga, Chair of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises, to discuss the issues. The panelists noted that very often, human rights defenders are people from Indigenous and local communities who are facing threats from large scale development. Among other things, Mr. Sulyandziga noted that international financial institutions such as the World Bank Group are an important factor in ensuring that the rights of Indigenous peoples are respected, as many of the major corporations involved in development are attempting to obtain loans from those institutions. Ms. Sekaggya reported that there were some positive developments, such as Australia's mining assessment initiatives and Columbia's national hydrocarbon agency assessment, as well as the Extractive Industries Transparency Initiative (link).