Laura Arenas Peralta, PhD student in Advanced Studies in Human Rights at the Universidad Carlos III de Madrid. She was a visiting PHD researcher at Nova BHRE from April to June 2024.
Forced displacement by extractive companies
At times, companies can be involved in human rights violations during the course of their activities. One example of human rights violations caused by companies has to do with forced displacement when the company may have helped directly or indirectly. The arrival of a multinational enterprise to a territory can affect the livelihoods of persons and communities that live in that territory and this change can force them to move. In particular, the extractive sector is one of the sectors in which forced displacements have been recognized to frequently occur.
In fact, major human rights violations take place in the extractive sector. This was confirmed by the UN Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie in a 2006 report in which he concluded that two-thirds of human rights abuses reported had taken place in the extractive sector and no other sector left such an enormous and intrusive footprint on the environment.
In the extractive sector, human rights violations or the displacement of populations are often seen by companies as a cost associated with a major good for their economy when their main focus is on profit. However, people affected by these projects often consider that they do not benefit from the resources that the extractive project brings and were already vulnerable prior to the displacement. In many cases, they are indigenous, tribal, or peasant communities with a special relationship with the land in which they inhabit. Some instruments on human rights due diligence regarding the extractive sector have intended to give voice to these persons, but they do not focus specifically on displaced persons. In addition, some of these HRDD instruments are still of non-binding nature. Among these instruments, the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector can be highlighted. This Guidance mentions forced displacement and the loss of access to land as one of the potential impacts that can take place. When resettlement is to be carried out, people should be consulted first, and their specific needs should also be guaranteed.
A void in the instruments
At the international level, on the one hand, we have the Guiding Principles on Business and Human Rights created in 2011 and on the other hand the Guiding Principles on Internal Displacement from 1998, both of a non-binding nature. Both sets of principles establish obligations that fall mainly on States and do not usually speak to each other. The Guiding Principles on Internal Displacement include in its principle 6 the prohibition of arbitrary displacement by large-scale development projects which are not justified by overriding public interests. On the other hand, the Guiding Principles on Business and Human Rights in its second pillar address the responsibility of businesses to respect human rights during their activities. However, none of these sets of Principles establish an obligation for companies not to cause forced displacements.
Nevertheless, this was not always the case. In fact, in an early draft commentary on the Norms of Responsibility of Transnational Corporations and other Business Enterprises with regard to Human Rights, which was later abandoned, it was held that:
“Transnational corporations and other business enterprises shall not forcibly evict individuals, families, and/or communities against their will from their homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection pursuant to international human rights law”.
At the regional level, article 3 of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) sets the obligation for States to ensure the accountability of non-state actors, including multinational enterprises, for acts of arbitrary displacement or their complicity in such acts.
Furthermore, the attention on forced displacement has focused more on people displaced by conflict than on other causes of displacement, such as displacement by large-scale companies of the extractive sector. In fact, it has often been assumed that many human rights violations that take place in the extractive sector are related to business complicity with armed actors or the financing of conflict. This is reflected in some of the human rights due diligence instruments related to conflict-affected areas like the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from conflict-affected and high-risk areas, the EU conflict minerals regulation, or the Kimberly Process Certification Scheme. According to the Guidance on Responsible Business in conflict-affected and high-risk areas of the Global Compact, companies in the extractive sector face major challenges when it comes to the respect of human rights.
In civil wars in Africa and Latin America, much of the literature focuses on human rights abuses resulting from business alliances with armed actors over conflict minerals and illegal trade. In Colombia, for example, the legislation about victims of forced displacement was created mainly to tackle the problem of forced displacement caused by the armed conflict, while a specific category of displacement by the extractive sector or displacement caused by development projects has not been yet recognized. Nevertheless, some cases concerning forced displacement by companies have been presented to the OECD National Contact Points (Colombian communities vs. Xstrata, Colombian Communities vs. BHP Billition, Asamblea Campesina et al. vs. Rotterdam Port Authority et al.).
A call for heightened human rights due diligence
One of the main elements of pillar II of the UN Guiding Principles is the due diligence that companies should undertake to prevent human rights impacts of their activities. Due diligence is specified in Principle 17, and extends beyond economic impacts; it is about protecting people and communities. Moreover, special attention should also be given to the context, as stated in Principle 26.
In fact, there are cases where due diligence measures should be reinforced because of the major risk they pose to human rights. This led the Special Representative to create Principle 7 of the Business and Human Rights Guiding Principles about heightened human rights due diligence. However, this principle does not mention the extractive sector and heightened human rights due diligence (principle 7) applies mainly to conflict-affected areas and other high-risk scenarios.
In its 2020 report about Business, human rights and conflict regions, the UN Working Group on Business and Human Rights set as an example land dispossession or displacement before the arrival of the company and the report affirms that companies are not neutral agents in these contexts.
In this context, I consider that heightened due diligence should always apply in the extractive sector, not just when it is related to an armed conflict. Additionally, a major focus should be given to displaced populations, ensuring the fulfillment of their human rights and their participation in projects that will affect them.
Forced displacement within the just transition
In a 2023 report about the extractive sector and just transition, the UN Working Group on Business and Human Rights emphasized the fact that in all regions of the world, many persons have to abandon their homes or livelihoods for the expansion of projects related to the climate and energy transition. This has been true for all other extractive industries in the world and a meaningful participation for people displaced by these projects should take place. The report also considers that “communities should participate and not only be consulted about” the projects.
Conclusion
To sum up, there is no specific category neither in the Business and Human Rights instruments nor in the instruments that relate to forced displacement about displacement caused by companies in the extractive industry. However, it has been recognized that this type of displacement does occur and is not always related to armed conflicts. Nowadays, this problematic has also been noticed as a consequence of the just transition. That is why companies should implement heightened human rights due diligence in the extractive sector and more specifically when there is a risk of forced displacement of populations due to their projects. This heightened human rights due diligence should also place major attention to the voices and needs of the communities affected and guarantee their participation during all stages of the project.
Suggested Citation: L. A. Peralta, ‘Forced displacement in the extractive sector: A call for heighted human rights due diligence‘, Nova Centre on Business, Human Rights and the Environment Blog, 16 october 2024