How are Environmental Defenders Protected in the Regions? | Geneva Roadmap 40/11

About this Session

Today, some specific instruments, such as the Aarhus Convention, regional processes and mechanisms are playing a growing and rapidly transforming role for environmental defenders in terms of new standards, collaborative efforts and plans. Yet, how effective are these instruments, processes and mechanisms in supporting and protecting environmental defenders in different parts of the world? What are the lessons in terms of the relevance and effectiveness of regional human rights and environmental protection mechanisms? How can ongoing experiences by civil society organizations and defenders help shape new and strengthened regional approaches? There is wide recognition of the different situations across regions as well as relevant lessons from ongoing initiatives.

On the occasion of both the 56th Session of the UN Human Rights Council and of the 28th Working Group of the Parties to the Aarhus Convention, on access to information, public participation and access to justice in environmental matters, this event gathered views from various stakeholders on the question: “How are environmental defenders protected in the regions?”

Geneva Roadmap 40/11 Series

Five years ago, on 21 March 2019, the Human Rights Council adopted Resolution 40/11 – Recognizing the contribution of environmental human rights defenders to the enjoyment of human rights, environmental protection and sustainable development – without a vote.

Following the adoption of the resolution, platforms, coalitions and networks of defenders met in February 2020 to launch the Geneva Roadmap 40/11 to foster the implementation of this Resolution.

Building on previous Geneva Roadmap 40/11 efforts in relation to global human rights mechanisms, this year’s events organized by the University of Geneva, Earthjustice, the International Service for Human Rights, with the support of the Geneva Environment Network, will focus on the protection mechanisms provided at the regional level for environmental defenders.

Speakers

By order of intervention.

Astrid PUENTES RIAÑO

UN Special Rapporteur on the human right to a healthy environment

Fiona MARSHALL

Legal Officer & Secretary to the Compliance Committee, UNECE Aarhus Convention Secretariat

Barbara ASTUDILLO

Ecofeminist from Chile who has been involved in the Escazu Agreement

Lia Mai TORRES

Executive Director, Center for Environmental Concerns, Philippines

Frederik HAFEN

Senior Policy Officer for Environmental Law and Democracy, European Environmental Bureau

Rose BIRGEN

Consultant, VIA Project

Raquel YRIGOYEN

International Institute on Law and Society, Lima, Peru

Luciana DA SILVA

Competent Environmental Evaluation Authority, Ministry of Environment, Guinea Bissau

Martin TORBERGSEN

Minister-Counsellor (Human Rights), Permanent Mission of Norway to to the UN Office and other international organizations in Geneva

Ulises QUERO

Programme Manager (Business, Land & Environment), International Service for Human Rights | Moderator

Highlights

Summary

Welcome

Ulises QUERO | Programme Manager (Business, Land & Environment), International Service for Human Rights | Moderator

• In recent years, there has been significant momentum for the protection of environmental defenders, both at the global and regional levels. This includes the adoption of the Escazu Agreement, the creation of the mandate of the Special Rapporteur on Environmental Defenders of the Aarhus Convention, and an increased number of cases highlighting the role of environmental defenders. We have seen an increased focus on recognition and the protection of environmental human rights defenders.
• This was also illustrated in the landmark resolution 4/11 in 2019, which recognized the role of regional mechanisms in protecting environmental defenders. This year marks the fifth anniversary of this resolution. Despite all these developments and great updates, we still see that environmental defenders are among the most targeted groups of defenders worldwide. There is no region where environmental defenders are not a target.

Opening

Astrid PUENTES RIAÑO | UN Special Rapporteur on the human right to a healthy environment (video message)

• To understand and advance effective measures for the protection of those who are defending the environment, it is crucial to acknowledge that environmental defenders are under attack in many parts of the world. While Latin America has been documented as the most dangerous region for environmental defenders, there are other regions where defenders are under attack, but unfortunately, we lack the necessary data and documentation to fully understand the situation.
• It is important for national, regional, and international organizations to further understand and implement effective measures to protect those defending the environment. Measures including access to information, participation, and justice are absolutely key to protecting the environment and those working within it. Regional human rights systems play a key role in helping states identify the context and effective measures that can be implemented for better protection of environmental defenders.
• The Inter-American system has been advancing this for a few years. The Inter-American Commission on Human Rights has been documenting and describing the challenges human rights defenders face in the Americas, including those protecting the environment. Reports, standards, measures, and recommendations developed by the Commission are key sources of inspiration and guidance for states to comply with.
• One of the key elements the Commission has used over the years, upon the request of environmental defenders or their representative organizations, is precautionary measures. These are granted when there is a specific threat to the life or integrity of a person or community. The Inter-American Commission has granted precautionary measures several times to protect people or communities due to their work in defending the environment. These measures must be implemented in coordination with those who are threatened to ensure their effectiveness.
• Another key element to keep in mind is that the Inter-American Court, in the Fernandes vs. Brazil case, concluded that it is part of the state’s obligation to protect those defending the environment and to effectively investigate the threats they face. This case highlighted the state’s failure to provide effective protection despite being aware of the threats. Standards and measures like these already exist and can complement other agreements like the Escazú Agreement and the Aarhus Convention.
• The standards from the Inter-American Commission and the Court are key because they apply to the entire region. In some situations, these standards for protecting environmental defenders might be stronger than others. Collaboration and coordination are crucial because no single system or agreement is enough to protect people on its own. In collaboration, we hope to continue implementing and enforcing measures to effectively protect those who are defending their lives.

Instruments and Mechanisms Used in the Regions to Protect EHRDs

Fiona MARSHALL | Legal Officer & Secretary to the Compliance Committee, UNECE Aarhus Convention Secretariat

• The Aarhus Convention has been in force for 24 years. It has 47 parties, including 46 states and the EU, and is open globally to any UN member state. In July 2023, Guinea-Bissau became the first state from Africa to join. The Aarhus Convention is open to any UN member state to ratify.
• The Aarhus Convention is founded on three main pillars: access to information, public participation, and access to justice.
• It also has a binding obligation under Article 3(8) that requires each party to ensure that any person exercising their rights under the Convention is not penalized, persecuted, or harassed in any way for their involvement. This is a binding obligation to protect environmental defenders.
• The Convention has established two mechanisms to protect environmental defenders. The first, in existence since 2004, is the Compliance Committee. The Compliance Committee can hear cases about any alleged non-compliance with the Convention, including alleged persecution of environmental defenders. The Compliance Committee is a legal mechanism, so it takes time.
• In 2021, the Meeting of the Parties, very concerned about the disturbing reports of attacks and persecution of environmental defenders, established the world’s first rapid response mechanism for environmental defenders. This was established in 2021, and in June 2022, they elected the first Special Rapporteur on Environmental Defenders, Michel Forst.
• The Mandate of the Special Rapporteur has been operational since October 2022. We see an increasing number of complaints coming to him, which is both good and bad. It is good because it shows growing awareness of the mandate and the mechanism, but bad because it indicates increasing oppression of environmental defenders.
• The rapid response mechanism and Article 3(8) relate to persecution linked to a party to the Aarhus Convention. For the Special Rapporteur to take up a case, the persecution must be related to actions or inaction by a state party to the Convention or have a clear link to that party. This includes acts by private actors, like companies, that the state knew about but failed to stop.
• The Special Rapporteur works similarly to other UN special rapporteurs. He receives complaints, investigates them, and sends a letter to the state with the allegations, giving them 60 days to respond. The letter remains confidential during this time. After 60 days, it is posted on his website along with any response from the state. Based on the response and the seriousness of the allegations, he may take further measures, such as issuing press statements, attending trials, or holding meetings with government officials.
• An environmental defender, for the purposes of Article 3(8) and the Special Rapporteur, is anyone exercising their rights under the Convention to protect the environment. This includes indigenous people, members of local communities, journalists, lawyers, local politicians, and any member of the public acting to protect the environment.

Barbara ASTUDILLO | Ecofeminist from Chile who has been involved in the Escazu Agreement

• We are defenders of the territory; we are defenders of life. I come from Chile, where the world begins, and on behalf of Latin America and the Caribbean, where many of my colleagues who fight for the right to a sustainable and healthy environment are at risk. We can no longer continue with this sacrifice and endless overconsumption of a finite planet.
• Wetlands are not only mineral resources; they are ecosystems that support the livelihoods of peoples and communities, coexisting with a unique biodiversity. Fossil solutions to energy transition will perpetuate exploitation and endanger life, and we must avoid ecocide—the loss of biodiversity, destruction of ecosystems, depletion of natural resources, water scarcity, water and air pollution, soil impoverishment, and desertification, causing serious damage to nature on a widespread, long-term basis. From the territories, we call for justice.
• The Escazú Agreement is essential for Latin America and the Caribbean. It guarantees access to information, public participation, and justice in environmental matters. Adopted in Costa Rica in 2018, it is the first agreement in the world with specific provisions for the protection of environmental defenders. To date, it has been signed by 24 countries and ratified by 15.
• The agreement is based on fundamental principles of human rights and environmental governance, allowing climate justice to be addressed from a human rights perspective, such as the right to a healthy environment. We urge those states that have not yet ratified the agreement to do so, given its importance in strengthening environmental legislation and governance in the region.
• The agreement promotes the inclusion of diverse sectors of society in environmental and climate policies, including women, youth, indigenous peoples, and local communities. It also has an intergenerational approach, ensuring a healthy environment for present and future generations.
• To address gaps in the implementation of the agreement, the Escazú Agreement has launched an online tool on the website of the Committee to Support Implementation and Compliance, facilitating monitoring, transparency, and participation.
• An action plan on human rights defenders in environmental matters was approved during the third Conference of the Parties to the Escazú Agreement, held in April this year in Santiago. The plan is a six-year plan, structured into four priority areas: knowledge generation, recognition, protection, and enabling environment. It was drawn up with input from public consultations and international organizations.
• Chile has introduced a protocol developed by the Undersecretary of Human Rights to protect human rights and environmental defenders. The protocol includes coordination measures between institutions and covers criminal and non-criminal cases, establishing an interdisciplinary approach.
• The third Conference of the Parties to the Escazú Agreement in Chile has been a catalyst for an active agenda in implementing the agreement in Chile. It represents a fundamental tool for strengthening environmental democracy, promoting sustainable development, and protecting human rights in Latin America and the Caribbean. From and with the territories, we call for justice and action to protect our environment and those who defend it.

Stakeholders Experiences and Perspectives

Lia Mai TORRES | Executive Director, Center for Environmental Concerns, Philippines

• I am from the Asia Pacific Network of Environment Defenders (APNED), a regional network of defenders working on environmental rights.
• Southeast Asia, while being one of the most biodiverse regions, is also a hotspot for attacks on environmental defenders. According to Global Witness, there have been 318 killings of environmental defenders from 2012 to 2021, comprising 18% of the global number. The Philippines, a small archipelagic country, has the highest number of these killings, with 270 environmental defenders killed.
• The Philippines has consistently been the country in Asia with the highest number of killings in the past decade. Other types of attacks include harassment, threats, intimidation, criminalization, arrests, and enforced disappearances. Recently, ten Cambodian youth activists were convicted to six to eight years in prison for conspiracy against the government while exercising their right to freedom of expression and opinion.
• Aside from killings, there is a growing narrative that environmental defenders are anti-government, anti-development, communists, or terrorists. This labeling often precedes further attacks. At the national level, there are no specific laws protecting human rights defenders in Southeast Asia. In fact, the only country in Asia with such a law is Mongolia. Other countries, including the Philippines, have policy proposals but no legislated protections yet.
• There is also a lack of domestic remedies and preventive measures for attacks on environmental defenders. This is concerning given the increasing number of attacks. As a result, defenders often turn to international human rights mechanisms, such as UN special procedures and the Universal Periodic Review. However, there are significant barriers, including a lack of knowledge about these mechanisms, technical requirements, and limited capacity, especially among grassroots organizations.
• Given this, there is a constant recommendation for a regional agreement to provide another layer of protection. This led to the development of the ASEAN Environmental Rights Framework, initiated by the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2022, aiming to be completed this year.
• However, there have been issues with the process and content. Some representatives oppose using terms like “indigenous peoples” and “environmental human rights defenders,” despite these being recognized by the UN. The public draft avoids these terms, which affects the comprehensiveness and effectiveness of the document.
• There is also a concern about the short consultation period and lack of support for civil society participation, which limits the inclusion of inputs from environmental defenders themselves. Despite these challenges, civil society organizations continue to advocate for a more robust and ambitious regional framework.

Frederik HAFEN | Senior Policy Officer for Environmental Law and Democracy, European Environmental Bureau

Negative Trends witnessed in Europe:

1. Certain countries (e.g. Georgia, Bosnia and Herzegovina, and Hungary) are passing laws that directly target civil society organizations, human rights, and environmental defenders. These developments are very concerning as they represent a backslide in protections.
2. There is an emergence of laws termed or labeled as “foreign agent laws” being applied to civil society organizations based on the percentage of funding from foreign sources. If the percentage of foreign funding is significant, the organization must register as a foreign agent. These developments are very concerning.
3. In countries that pride themselves on human rights, such as Germany, the UK, and France, we see worrying developments where environmental defenders face serious consequences for peaceful actions. This includes traditional methods of repressing peaceful protests, mislabeling protesters as unpeaceful, and carrying out heavy-handed actions by police and other state forces. For example, the special rapporteur is actually in the UK today to witness a trial because of very worrying developments there, where a person has to stand trial for conspiracy because they attended an online call to organize a protest.

Positive Developments:

1. At the EU level, legislation on strategic lawsuits against public participation (SLAPP) has passed. While not as strong as we would have hoped, it offers hope for judges to dismiss cases early if state entities or private entities are trying to abuse the legal system to silence those who want to speak up.
2. Legislation on corporate sustainable due diligence has passed. While it is broadly framed, it can have positive effects for environmental defenders.
3. The establishment of the rapid response mechanism under the Aarhus Convention gives member organizations hope. It allows for a strong voice to raise issues and amplify when things go wrong.
4. The term civil disobedience is back on the agenda. Although it’s debatable whether this is a positive development, it allows for spaces and discussions about the right to protest, the right to assembly, and what constitutes civil disobedience versus violent criminal acts.

Needs Identified:

1. Learning from other regions. These are problems that other regions have faced for a long time and are better organized and resourced to fight against.
2. Capacity building among civil society organizations to organize themselves better.
3. Personal identification of environmental defenders. Many people do not identify themselves as environmental defenders but as activists. Many are young people who want to protest.
4. Addressing collective European arrogance. There is a need to recognize that issues of persecution and unreasonable incarceration are not just problems that happen elsewhere, but also within Europe. It’s time to tidy up our own house and follow the values we try to export externally.

Rose BIRGEN | Consultant, VIA Project

Current Situation of Environmental Human Rights Defenders in Africa:

• Over the last decade, we have seen unprecedented levels of environmental degradation and natural disasters due to climate change. As more developments are implemented, there is a total disregard for land rights, environmental rights, and the right to free, prior, and informed consent by business operators and governments.
• Environmental defenders face both lethal and non-lethal attacks. Lethal attacks include killings, while non-lethal attacks include harassment, criminalization, and restrictions on the right to protest.

Challenges:

• While civil society plays a role in supporting environmental defenders through digital and physical security training, emergency support, and more, there are still gaps in the region.
• The regional human rights protection mechanisms, like the African Court and the African Commission, face challenges. For example, many African countries are starting to put reservations that prevent individuals and NGOs from presenting human rights violations to these institutions.
• Implementation of decisions from these bodies remains weak. Decisions are often left to the goodwill of the state parties to implement, and enforcement mechanisms are lacking.

Positive Developments:

1. The African Commission has set up special procedures and mechanisms to enhance its work, such as the special rapporteur on human rights defenders and working groups on extractive issues.
2. Discussions are ongoing about developing a regional instrument similar to the Escazú Agreement to promote environmental democracy and protect environmental defenders. CSOs in the continent are pushing for the special rapporteur of human rights defenders to take the lead on this and see to it that the instrument is developed and ratified.

Raquel YRIGOYEN | International Institute on Law and Society, Lima, Peru

• In Latin America, various international instruments have been ratified, such as the American Convention on Human Rights,  ISA Convention on Indigenous Rights ratified by 15 countries, and the Declaration of Indigenous Peoples from the UN and the American system. All of these tools provide a corpus of Indigenous rights related to the territory, the environment, and so on.
• Indigenous people live in the Amazon, in the mountains, and they rely on rivers, lakes, and other natural resources. Even if our countries have ratified all of these conventions, the Amazon is full of petroleum blocks, and the highlands are full of mining concessions. None of these have been previously consulted with the indigenous communities and this lack of consultation is a source of pollution.
• Indigenous peoples organize to defend their territories, but governments persecute and kill them.

Regional Mechanisms for Protection

• Two systems are in place a consolidated one, the Inter-American system, with more than 60 years of history and an emerging system, the Escazú Agreement.
• Within the Inter-American system, there are two organs: the Inter-American Commission and the Inter-American Court. The Inter-American Commission has granted many precautionary measures for defenders. Some have protected lives, while others have not, as seen in the well-known case of Berta Cáceres in Honduras. However, many indigenous communities with precautionary measures are still alive because of them. The Inter-American Court has released almost 40 judgments related to indigenous peoples in the last 20 years, covering rights like territory and the environment. Notable Cases:

1. Awas Tingni v. Nicaragua (2001): Granted the right to the territory and stated that governments cannot give concessions, such as forest concessions, without ensuring the territory is respected.
2. Saramaka People v. Suriname (2007): Stated that the government cannot give mining or forest concessions without the previous consent of indigenous peoples.
3. Yakye Axa v. Paraguay (2020): Recognized rights for water, health, and the environment, among other social rights.

The Challenge: The Inter-American system is overloaded, and it takes around 20 years to get a judgment. We don’t need to start from zero. This is a recommendation for the emerging regional system: we need to base it on existing standards. If governments didn’t give concessions without the consent of Indigenous peoples and respected their territorial rights, the environment would be protected. Otherwise, it will be impossible to protect the environment, and the whole planet and humanity will be in danger.

Closing Remarks

Luciana DA SILVA | Competent Environmental Evaluation Authority, Ministry of Environment, Guinea Bissau

Implementation of the Aarhus Convention in Guinea-Bissau:

• Progress: We are progressing slowly but steadily. We do not have big companies directly impacting our resources and endangering our environment, however, we have several small specific activities where defenders are active. For example, a case concerning the construction of a mall that directly affects a wetland. Local communities, youth organizations, and women’s organizations issued protests because they felt the development project affected local resources.
• Government Actions: As the government, we don’t witness serious human rights violations because there is freedom of demonstration and expression. Still, we see environmental complaints from local communities. We have regulations in place, but there is room for improvement when dealing with environmental and climate issues. We intervene to find solutions when resources are affected.

Martin TORBERGSEN | Minister-Counsellor (Human Rights), Permanent Mission of Norway to to the UN Office and other international organizations in Geneva

• Norway held the banner of the resolution in 2019, as we have done on other Human Rights Council and General Assembly resolutions on the work of human rights defenderss. We will continue to do that going forward.
• Next year, in the March session, we are slowly preparing for another version of the resolution, probably substantively similar.

Takeaways:

1. Importance of Civil Society: Bringing civil society and human rights defenders to the international multilateral arena is crucial.
2. Cross-Regional Relevance: This issue cuts across regions and countries. It’s relevant to all of us, including Norway. This linkage between what is happening in the regions and in the countries is very necessary for representatives of countries working in Geneva or New York to be reminded of.
3. Intersectionality: The intersection between environmental human rights defenders and indigenous peoples’ rights is key.

• You should keep holding states accountable in whatever way you can. Regional developments are very interesting and important to pay attention to. Once again, the fact that regions may learn from one another across boundaries is important, while insisting on the work we do as important global responsibilities.

Video

Photo Gallery

Documents

• Presentations made during the event

Links

• Environment @ 56th Session of the UN Human Rights Council
• 28th Working Group of the Parties to the Aarhus Convention

Photo Credit

Endorois Indigenous Women Empowerment Network. 24 June 2024.