EUROPEAN UNION
FINAL REPORT WORKSHOP SEMINAR
Situation of advocates, human rights, companies and peace building Preparatory Meeting for the European Union – Colombian Government Dialogue, Brussels 2016
July 2016, Bogota D.C
EUROPEAN UNIÓN
EUROPEA
Presentation The European Union Delegation has considered that it is of the utmost importance to reflect on two crucial aspects of the current Colombian context. The first one, is the situation of human rights advocates, and the second one is the relationship between companies and human rights in the country. In the current negotiations stage between the Colombian Government and the FARC and an eventual peace treaty, these issues take on an even greater strategic importance. Aiming at exploring the current situation on these matters, on June 28 th, 2016, with European support, took place the Workshop - Seminar “Situation of advocates, human rights, companies and peace building.” The purpose of this event was to draw pointers, conclusions, recommendations and guidelines for the EU, seeking to strengthen its capacity for formal dialogue regarding human rights at a national and global level. This action is made while trying to support and reinforce civil society’s role in the promotion of human rights and democracy, as well as the consolidation of democratic participation and representativeness. It is also a contribution for the fulfillment of the European Union’s Roadmap for commitment with Civil Society in Colombia. This is why members of civil society, advocates for human rights and national platforms representatives, community leaders and academics were invited. Similarly, the Counselors for Human Rights of the Member States of the European Union, as well as members of the Delegation of the European Union in Colombia and Ecuador at the head of her Excellency, Madame Ambassador, were also present. This document presents the main conclusions and recommendations obtained from the two working groups, one of which refers to the situation of human rights defenders, and the other to the relationship between companies, human rights and peace building. .
Main conclusions and recommendations 1.1
On the situation of human rights advocates in Colombia
The worktable, with the participation of civil society, community leaders and NGOs, analyzed the specific situation of human rights advocates in the current context of the country. The next step was to make a balance of existing public policies, achievements, limitations and the state of the public institutions that are responsible for the protection of the advocates.
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Finally, along with this work, there were recommendations on the subject, with the idea that the results of the work on the table may open windows of opportunity or possible routes to advance on the situation of human rights advocates, that they contribute to constructive visions in the context of political and legal transition of Colombia, and finally, to make recommendations to the delegation of the European Union and the whole of the convened civil society.
I.
CURRENT CONTEXT
This numeral shows the contexts under which advocates work, and where are there still risks for them to continue their work in the country. First, recognizing the worrying increase of attacked and killed advocates during 2015 and so far in 2016, as documented by the recent report for 2015 of the Office of the High Commissioner for Human Rights of the United Nations in Colombia and as it has been recently reported by the Somos Defensores Program, among other entities. The current specific contexts of risks for the development of the work of the advocates identified by the Working Group were the following:
A. The exercise of defense of the land, territories and natural resources of local communities, especially in rural areas. B. The threat or attacks by armed groups and / or interests of illegal economies, paramilitary C. D. E. F. G. H.
and successor groups that maintain territorial control and the capture of regional State in high impunity contexts. Stigmatization, marking and distrust of the daily work of human rights advocates. Territorial control from legal or illegal groups, who feel threatened by the work of advocates and obstruct their job. Criminalization by security agencies against the actions being carried out in defense of human rights. The exercise of political opposition or criticism of the development model. Activities that become riskier in local contexts. Activities related to support or implementation of the agreements reached at the negotiating table between FARC-EP and the National Government. Search for justice and reparation for victims (complaints to the State as a human rights violator)
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II.
PUBLIC POLICY BALANCE
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A.
The first thing that was noted in the Worktable, is the lack of a public policy for the protection of human rights advocates that is comprehensive and has differential approaches, mainly for gender and ethnicity, that includes an approach to urban local communities and rural communities (farmers, indigenous and of African descent), with a collective character. It is recognized that current protection measures are the result of the proposals and pressure of the human rights movement, but they are insufficient, considering that they have focused on material and physical protection measures, but neglect the psychosocial and collective nature dimensions, which are vital for a comprehensive and appropriate intervention regarding the situation of human rights advocates. The widespread use of outsourced protection measures by the National Protection Unit (UNP for its Spanish acronym) through private security companies, has highlighted government corruption and low effectiveness of the protection afforded to human rights advocates. Bureaucratic processes make the adjudication of security schemes slow and difficult, as is the case in matters of risk assessments and protection measures, which in many cases do not materialize immediately in consideration of the identified risk. The advance in regard to a gender perspective in the protection of human rights advocates is assessed through the formation of a Special Committee for Risk Assessment (CERREM, for its Spanish acronym) to assess the risk of women and the participation of civil Society organizations in this space. Despite the submission of a proposal by civil society to the National Government on the implementation of a comprehensive mechanism for prevention and protection of women leaders and advocates of human rights, this proposal has not yet been reflected in a specific program that implements it, regardless of the promises of the National Government to implement it. There is great complexity in the current regulations on protection, which makes it difficult to implement them at a local level. Protective measures are usually disjointed between the different entities: UNP, police, ministries, city halls etc. Local institutions are often weak and their officials know very little regarding the protection paths for individuals or groups. It is necessary to reconsider the role of the entities responsible for protection: National Protection Unit, Ombudsman, Police, etc. There is a high valuation of the assistance and support of the international community to the work of advocates, through NGOs, UN System, Embassies and international organizations working in the country. There are difficulties to move from individual to collective protection schemes, especially in cases where the risk is taken due to the work of associations, groups, working groups, communities, etc.
B.
C.
D. E.
F. G. H. I.
III)
RECOMMENDATIONS
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A. Urgent need for a comprehensive public policy for the protection of human rights advocates, with strong institutional coordination processes at all levels, differential approaches, state presence in the territory and active participation of civil society.
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B. In the current programs, it is recommended to implement prevention and protection measures that go beyond physical measures (hard measures) and which include socioeconomic protection measures, psychosocial care and collective work approaches that fit the work of organizations, associations, communities etc. C. On the issue of female advocates, the early adoption of the gender prevention and protection program presented to the National Government by civil society in recent months is recommended. The presented program includes a greater emphasis on preventive measures; an approach aimed at a comprehensive protection and non-repetition measures. It is proposed that the program is coordinated by the Ministry of Interior due to its civilian character and in coordination with institutions such as the UNP, ICBF, DPS, etc. D. Programs should include differential measures for indigenous and Afro-Colombian communities, according to their specific needs in the development of risk assessment and implementation of preventive measures and collective and individual protection. E. It is required to expand the international oversight regarding the human rights advocates’ situation in the new transition context. In particular, the inclusion of work lines on advocates in Colombian state funded programs is requested from the EU Delegation. Likewise is it asked to maintain direct support and funding for projects aimed at advocates and their organizations or communities, as well as a special monitoring to the relationship between companies and communities in local contexts. F. In order to vindicate the work of advocates and emphasize the importance they have on peace-building and strengthening democracy, actions are needed to legitimize their work and destigmatize their labor in the defense of human rights. It is recommended to provide support for social pedagogy projects in high-risk local contexts which contribute to the understanding by society of the importance of the work of advocates. G. On the gap of impunity regarding violations of advocates’ human rights, it is recommended to strengthen special task forces of the Attorney General's Office, and advance effective investigations, through contextual investigations that exceed case to case methodologies. H. It is recommended for both, prevention and protection, to establish collective character measures that fit the day to day work of organizations, associations, groups, collectives and communities I. In the post-conflict and post-agreement context, it is recommended to collect existing experiences on prevention and protection in the country. New programs and institutions that arise in the context of the peace agreement should recognize this experience with their successes and help overcome their limitations. J. Current advocate protection measures should be strengthened, given that the combatant reintegration process and the realignment of interests and armed groups in local contexts, is itself a new risk to advocates. 1.2
On human rights and companies in Colombia
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Within the framework of this workshop-seminar, the spaces of dialogue between civil society and the European Union were developed from participatory methodologies. These were focused on the
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identification of central issues within the area of Companies and human rights, from legal, institutional and community perspectives. In particular, there was emphasis on the guarantee and protection of human rights on the occasion of doing business in Colombia. Likewise, a set of recommendations which become windows of opportunity for addressing the issue were debated and agreed upon, once this subject is integrated in the political, social, economic, legal, etc. transition process, which currently takes place in Colombia. Consequently, the tables were structured from three analysis areas: i) public policy on human rights and business, ii) challenges regarding the relationship between companies and local communities or social organizations, and iii) challenges for the implementation of transitional measures from the international legal protection to foreign investment. Subsequently, there were recommendations for the European Union delegation. The following are the central elements that, in the opinion of civil society that was present, must be taken into account in the study and management of this issue.
I) PUBLIC POLICY ON HUMAN RIGHTS AND COMPANIES The development of a public policy on Companies and Human Rights in Colombia is, per se, a breakthrough on the issue. However, it is clear that so far, it has not been developed, and to that extent, no tangible progress is perceived in the field. The Action Plan on Human Rights and Companies “Colombia Avanza” 1 complies with internationally developed standards, such as the Guiding Principles on Business and Human Rights2, adopted by the Council of Human Rights of the United Nations through Resolution 17/4 of 2011, or the Global Pact Network “Empresas por la Paz, which seeks the implementation of responsible business practices aligned with the principles of the Global Pact in conflict or high risk areas3. The potential of the Action Plan is high. It is an opportunity to broaden public understanding of what a country’s development model represents to the situation and welfare of its inhabitants. It allows to advance in the articulation of concerns at a central level with the realities of the territories. This emerges as a response to the growing social mobilization that has been generated in Colombia around the defense of the environment, the territory, sustainable development and human rights. 1 See: http://www.ohchr.org/Documents/Issues/Business/NationalPlans/PNA_Colombia_9dic.pdf 2 See: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_SP.pdf
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3 http://www.pactoglobal-colombia.org/index.php/plataformas-mundiales/business-for-peace
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Also, public policy is part of the dynamics of the global economy, which involves greater interaction between national borders and increased potential and negative externalities at a local level.
However, public policy has a number of limitations, both normative and contextual. It is perceived that there is a bump between what is presented as general policy guidelines and its implementation through specific regulatory actions. Also, it is noted that public policy was not coordinated effectively with communities, but mainly with companies, and that its application ends up being an exercise of voluntary injunction, instead of a mandatory implementation of standards for economic actors. It recurrent to view the company as a victim of the lack of legal certainty provided by the state, but it is not projected as a possible liability for damages and violations of human rights. It is also perceives that although the Action Plan mentions the importance of this area of policy in the current Colombian context, marked by the construction of peace and the implementation of structural changes, it fails to fully comply to this situation. Complementarily, Public Policy in matters of Business and Human Rights is disconnected from other highly relevant policy areas such as agricultural, mining, infrastructure and land use planning legislation. For example, there are conflicts between the mining and energy or agro regulations and other figures of land management in environmental protection and recognition of rights to land and territories. In those regions where there are ethnic groups and prior consultation is appropriate 4, the State rarely acts as guarantor. There is a widespread view in social organizations, the academy and other sectors that indicate that prior consultation in contexts of such asymmetry (technical and legal capacity) often favors the interests of companies. The draft for statutory law to regulate prior consultation could further ease the responsibility of the business sector regarding ethnic and territorial rights, an issue that draws the attention of civil society. Another fundamental aspect of this analysis is the role of law enforcement in the areas of influence of extractive companies. Participants say that in many cases it is limited to social protest and demonstrations that controvert the actions of specific companies, which results in some cases criminalization and prosecution of leaders and peasant and ethnic communities. This problem is exacerbated by the absence of a Public Ministry in such conflicts. Contextual constraints for the effective implementation of public policy on human rights and companies are embodied in various cases that will be detailed later. They evidence how some companies operate in very fuzzy boundaries between legality and illegality. This is compounded by the presence of companies in regions in which forced displacement, dispossession and other dynamics of armed conflict have shaped areas with high territorial and environmental conflicts. It
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4 See Law 21 of 1991: http://www.mininterior.gov.co/sites/default/files/5_ley_21_de_1991.pdf
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was stated that, in some cases, companies establish alliances with politicians to delegitimize their presence and interests in the area. The state is also a part of this problem. Civil society points out that the lack of coordination and inter-sectoral articulation, and between the nation and the territories, generates greater gaps in regulation and responsibility for controlling, monitoring and conflict prevention of human rights violations. . II) CHALLENGES REGARDING THE RELATION BETWEEN COMPANIES AND LOCAL COMMUNITIES OR SOCIAL ORGANIZATIONS The relationship between companies and communities at local level in Colombia is shaped by power struggles at a territorial level for access and use of land and natural resources. In this context, there are historical records of human rights violations that have occurred due to business activities; on one hand, because they have funded structures or anchored themselves to the armed conflict, and on the other hand, because some companies have benefited from the dynamics of violence, displacement and dispossession. The emblematic cases that were introduced during the workshop-seminar allow to recognize the relationship between regional territorial complexities and challenges in rural areas that deserve special attention. The main sectors in which such tensions arise are coal, gold, oil, gas and tourism enterprises and projects, as well as agribusiness, infrastructure and fisheries. Several cases were presented by participants at the tables, through which they illustrated how the dynamics of business activity or actors in areas affected by armed conflict can have negative consequences at a human rights level. In these areas, there are also serious and repeated breaches environmental infractions, damage to ecological systems related to the extraction of coal, gold, oil and other hydrocarbons, as well as biomass accumulation projects (forest and oil palm plantations) in forest reserve areas or ecosystems with some level of risk. In most cases, there is diversion of watershed channels and exposure to air pollution levels that exceed the limits allowed by Colombian legislation. The case of Glencore PLC operation in the department of Cesar was mentioned by civil society organizations as particularly relevant5. There is talk of impacts at the level of environment, natural heritage of the nation, labor and union guarantees, relations with state security forces and involuntary resettlement of communities affected by mining operations, as in the case of Afrodescendant populations of the municipality El Hatillo – Corregimiento La Loma. This dynamic coincides with the problems that arise in areas such as La Jagua with Drummond, and Cerrejon with the Wayuu indigenous population.
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5 http://documentos.pas.org.co/INFORME_SOMBRA_GLENCORE_-_SHADOW_REPORT_layout.pdf
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Also in Cesar, the Serrania del Perija is affected by various hydrocarbon mining and agro-industrial projects that limit movement, access and use of strategic natural resources, as well as the aspirations of at least 150 communities who want the area to be declared a peasant reserve area 6. In the Pacific, conflicts regarding land use and the exploitation of natural resources are related to port, road infrastructure and tourism projects. Many of these projects affect traditional of indigenous and African descent lands. Finally, they spoke of the importance of the case of the Swiss multinational Novartis, which revolves around the tensions produced by the declaration of public interest of a drug for leukemia developed by the company that had obtained an exclusivity patent. The release of the patent in order to lower the high prices of the drug triggered international diplomatic pressure that came to the point intervention from members of the US Senate, who said that freezing that country’s help towards Colombia was a possibility as a result of this regulatory action. A characterization of the negative impacts in the context of the relationship between companies and communities in Colombia results in the following dynamics: -
Permanence of risks for community or union leaders. Inability of public authorities to prevent and effectively protect communities when they receive negative impacts as a result of business activity. Judicial Persecution of human rights advocates and community leaders regarding tensions with companies. Use of corporate social responsibility programs to relativize or make possible cases of human rights violations invisible in the context of business. Low confidence of communities, especially rural and ethnic groups, in the intentions and actions of the companies.
Therefore, tensions between business and civil society are derived from environmental effects, violation of territorial rights, presence of extractives, agribusiness and infrastructure projects in regions where they overlap with land restitution policies and alternative rural development projects, and the regulation of certain activities in the private sector. III.
IMPLEMENTATION CHALLENGES FOR TRANSITIONAL MEASURES FROM THE INTERNATIONAL LEGAL PROTECTION OF FOREIGN INVESTMENT.
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6 http://expedicionperija.blogspot.com.co
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Within the discussions held at the tables, they also spoke of the challenges that are being generated at a regulatory level between the Colombian government and foreign investors, in the context of the existence of free trade agreements and investment that offer protection tools and Arbitration settlement of disputes in favor of the former. Participants stated that, with the increase of these international instruments, the Colombian state assumes behavioral obligations in the interests of multinational companies operating in the country, which may limit the regulatory capacity of the Colombian public authorities.
That is, that the granting of maximum legal security to companies can influence the way in which the Colombian state acts, including the eventual implementation of structural changes such as those that arise from the law of victims (land restitution program) or peace agreements with the FARC (agricultural agreement). In any case, it is clear that peace attracts foreign investment, which is the reason that urges a review of the problems described in the search for coherence in the actions of the sector. IV.
RECOMMENDATIONS FOR THE EUROPEAN UNION DELEGATION.
To the Colombian State Develop the National Plan on Business and Human Rights through public policies rules and other public actions.
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Implement articulation mechanisms between the National Plan and the complementary multi-stakeholder initiatives, whether private or public, which are under development (Guías Colombia, CME, Diálogo minero-energético, etc.)
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Track and publicly disclose any cases of human rights violations in the context of economic activity actors in Colombia.
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Develop national and regional mechanisms for dialogue and conflict resolution between the State, Companies and civil society (including communities in a special manner).
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Strengthen civil society and communities in emblematic territories for business and human rights areas through training processes and political empowerment (consultation, referendum, law suits, enforcement actions, etc.)
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Include expeditiously the area of business and human rights in the current transitional justice process in order to satisfy the rights of victims to justice, truth, reparation and nonrepetition.
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Some measures or strategies such as scenarios of opportunity in this area that are led by social organizations should be noted7.
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A greater accompaniment for Communities in their technical and legal capabilities is required.
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Create spaces between the communities and the state with active participation of the Public Ministry and international organizations, since it requires continuous dialogue between the State (as guarantor), companies (prevention actors) and civil society.
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It is essential to strengthen the spaces and oversight mechanism.
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The strengthening of the capacities of institutions is also required at a national level. As well as improving the institutional capacity of the Ombudsman in mediating conflicts between rural communities, social organizations and Companies. The Attorney General also needs develop Circular 0018.
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It is very important to make progress in strengthening the judiciary in dealing with cases involving companies and protection of human rights.
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There should be a more balanced cooperation on intellectual property and medicines. It should not only involve the Superintendence of Industry and Trade, but also other key entities. (TLC Colombia-U.E. 4669).
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Game rules on human rights and Companies must be clear and established by the State, its follow-up should not be delegated only to civil society. To the European Union
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Locate the area of Human Rights and Companies as a priority in its diplomatic and work agenda in Colombia.
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Support the development of mechanisms for dialogue and action to ensure that European economic actors operating in Colombia comply effectively with the international community and domestic standards on human rights and companies.
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Initiate a process of exploratory talks with the Colombian government regarding the possible impacts of the business and human rights area on the content and scope of
7Among them, the report on the Glencore Company in Colombia: AECID and its experience in making recommendations at a territorial level; the CINEP report; Shadow Report by P.A.S.
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8 http://www.procuraduria.gov.co/portal/media/file/001(1).pdf
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international trade and investment agreements signed between the Member States of the European Union and Colombia. -
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The European Union could create opportunities for dialogue with the High Commissioner for Human Rights, and in this context promote and strengthen the role of the Office of the High Commissioner of the United Nations for Human Rights in business and human rights issues It is vital to encourage and facilitate participation in collective memory exercises in the private sector. It is also essential to promote the exchange of experiences of territorial organizations and businesses, as well as systematizing successful experiences of civil society on business and human rights.
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It is necessary to promote follow-up to reports made by companies in their countries and support for the development of shadow reports9.
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Within the framework of the European Union – Colombia cooperation, on the occasion of the launch of a post-conflict and peacebuilding plan in the country, promote the development of projects in the following areas: o
Monitoring and documentation of emblematic cases on human rights and business.
o
Strengthening of national and regional mechanisms for dialogue and conflict resolution between the state, companies and civil society (specially including communities).
o
Strengthening of regional mechanisms for promotion and protection of human rights, such as the Commission and the Inter-American Court of Human Rights, with a view to developing specific work in the area of companies business and human rights.
o
Strengthening of civil society and communities in emblematic territories for the business and human rights areas through training processes and political empowerment (consultation, referendum, law suits, enforcement actions, etc.)
o
Help the Colombian government in the effective implementation of the National Plan on Business and Human Rights, from a contextualized perspective with the ongoing transitional justice and peacebuilding process.
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9 In this case, Sweden’s experience may be capitalized on, in terms of follow-up to companies
WORKSHOP SEMINAR: Situation of advocates, human rights, companies and peace building