In our capacity as members of the United Nations Working Group on Business and Human Rights, we have today ended our ten-day visit to Mexico. We thank the Government of Mexico for its support and facilitation of this visit, and its willingness to address business and human rights issues.
The objective of our visit was to identify current initiatives, opportunities and challenges to implement the UN Guiding Principles on Business and Human Rights in Mexico.
We welcome the commitment expressed by the Government of Mexico to better align its policies and practices with the Guiding Principles on Business and Human Rights and we expect that our visit will assist to make progress in this direction.
During our visit, we met with Government officials from the Ministries of Foreign Affairs; Interior; Environment and Natural Resources; Economy; Energy; Labour; Tourism; Agriculture, Livestock, Rural Development, Fisheries and Food; Communication and Transport; Finance and Public Credit ; from the National Commissions for the Development of Indigenous Peoples; on Water; on Hydrocarbons; Health; Food Safety and Quality; Biosafety of Genetically Modified Organisms; and Aquaculture and Fisheries; from the Agencies for Security, Energy and the Environment; and Airports and Auxiliary Services; from the Federal Authority for the Development of Special Economic Zones; the National Fund for Tourism Development; the General Prosecutor’s Office; and the Federal Prosecutor’s Office for Environmental Protection; the National Council for Preventing Discrimination; the Working Group for Developing the National Action Plan on Business and Human Rights. We also met with officials of the States of Oaxaca, Jalisco, and Sonora.
In addition, we held meetings with representatives of the National Human Rights Commission, and the State Human Right Commissions of Oaxaca, Jalisco and Sonora; with members of Congress (Chamber of Deputies and Senators); with representatives of the Industrial Development Bank (NAFIN); the Mexican Stock Exchange; the Mexican National Chamber of Industry (CONCAMIN); United Nations agencies in Mexico; representatives from a range of business enterprises (including Grupo Bal, Grupo Bimbo, Eólica del Sur, CEMEX, Grupo México, Goldcorp, the Federal Electricity Commission, PEMEX); civil society organizations; human rights defenders and members of affected communities.
During our visit we held meetings and visited communities in the Federal District of Mexico City, the State of Mexico, the State of Oaxaca, the State of Jalisco, and the State of Sonora.
In our statement, we would like to outline some initial observations from our visit. Our official mission report to the 35th session of the Human Rights Council in June 2017 will include further observations and recommendations.
International and national organizations and human rights mechanisms have highlighted the serious human challenges facing Mexico. Critical levels of violence, insecurity and impunity contrast with important legislative developments and public policies promoted by the government. Also, Mexico faces high levels of poverty and inequality, with half of the population living below the poverty line, and wide income disparities amongst regions and households.
The Government’s National Development Plan 2013-2018 makes it a key objective of public policy to “guarantee the respect and protection of human rights and the eradication of discrimination”. This objective is also reflected in constitutional reforms relating to transparency and access to public information and new laws, such as the Law for the Protection of Human Rights Defenders and Journalists, the General Law on Victims and the Amparo Law.
As the Guiding Principles on Business and Human Rights underline, all business enterprises (including those that are State-owned), have a responsibility to respect human rights, independently the State’s ability to fulfil its own human rights obligations. Yet, as we witnessed during our visit, businesses must do much more to uphold human rights standards and avoid seeking to benefit from impunity, corruption and a lack of transparency and accountability.
Human rights due diligence in the context of development projects
From the information gathered during our visit, it was clear that main concerns about business-related human rights abuse relate to inadequate human rights due diligence on the part of the Government and business enterprises in the design and implementation of large-scale projects. These are mainly projects in the sectors of mining, energy, construction and tourism, and they often affecting indigenous communities.
The information presented to us, including testimonies by members of affected communities, indicates that when human rights abuses occur, grievances are not easily heard and access to remedy difficult for the victims. These trends are also reflected in a document submitted to us by a coalition of more than 100 non-governmental organizations, which provides a summary of 61 specific cases of alleged human rights violations in the context of business operations in different regions of Mexico.
We were able to discuss some of the cases in more depth with the involved stakeholders: Federal and State authorities, business enterprises, affected communities, and representatives of the judiciary, including the Supreme Court, and national and State human rights commissions. We believe these cases are illustrative of some general overall concerns.
Case of wind farm project, Oaxaca
In Oacaxa we heard the views of the different parties concerning the expansion of a wind farm project in the municipalities of El Espinal and Juchitán de Zaragoza. Following the pattern of several similar cases, an amparo order by a Federal Court had brought to a halt this large development project with an investment of some 780 million USD. In this case, the Ministry of Energy (SENER) together with the National Commission for the Development of Indigenous Peoples (CDI) had undertaken a consultation process with the aim of obtaining the consent of the effected indigenous peoples over a two year period. In August 2016, the amparo order was revised and the project was allowed to go forward. However, a significant number of indigenous peoples affected by the project continue to resist this decision and a group of 1166 community members are seeking the intervention of the Inter-American Commission on Human Rights. From our conversations with the different parties to this dispute, it was clear that one major issue was the general lack of trust in the intentions of the other. From the perspective of the indigenous communities, the whole process of consultation was seen as flawed, as wind mill farms had already been set up in the region without any prior consultation. One the other hand, representatives of State authorities expressed frustration that the amparo order had delayed the project, and argued that the Federal judge who had ordered the amparo was ignorant about the importance of these energy projects.
Case of high-way project, Xochicuautla
We had the opportunity to visit the indigenous community Otomí-Mexica in San Francisco Xochicuautla, State of Mexico, whose members have been resisting an expropriation order which was issued in October 2012 without any prior consultation. The community has been engaged in a sustained legal dispute with State authorities and obtained an amparo order requesting the suspension of the construction of a high-way though their ancestral land. The community has also petitioned the National Human Rights Commission and the Inter-American Commission on Human Rights (IACHR) and both institutions have requested the State of Mexico to adopt preventive measures to protect the Otomí-Mexica indigenous community. Yet, despite these requests and the amparo court order, construction of the high-way is proceeding, with the approval of State and Federal authorities, without any serious effort to undertake consultation and mediation. There as several reports of harassment and intimidation of community members who have protested against the project.
Case of Río Sonora
In Sonora we discussed the case of a major toxic spill caused by a copper mine, contaminating Río Sonora and affecting approximately 22,000 people, as well as livestock and crops, in seven municipalities located on the banks of the river. A settlement was reached between the Federal Government and the company to establish a trust (fideicomiso), for the amount of 2,000 million Mexican pesos (approx. 108 million USD), to provide reparation and compensation for damages caused. The State human rights commission had requested the Federal Public Prosecutor’s office to initiate an investigation of penal responsibility against the company, but there had been no follow up. Since the issue related to environmental contamination it was federal issue, so the State human rights commission had not mandate to investigate. Thus, the case had been taken over by the National Commission on Human Rights.
Affected communities and raised a number of concerns related to a lack of consultation about the use of the trust; a perceived arbitrary determination of compensation provided (for example compensation was provided up to a maximum number of livestock, irrespective of the number of livestock affected); a lack of transparency about the level of contamination and plans for the recovery of the river; discontent that out of the 28 water treatment plants the company had committed to construct only one had been completed and was not fully functional, and that a health clinic the company had committed to set up had not been completed.
When we raised these issues with representatives of the company, we were told that the construction of the treatment plants and the clinic had not been completed, as it would have been irresponsible to do so given that the municipal authorities did not have the capacity to run such plans and clinic. They stressed how the company had voluntarily agreed to the trust and to include claims for compensation from people along 250 km of the river, rather than the 50 km that was established by law. They regretted that affected communities considered they were not adequately informed, but stressed that it was the Federal Government’s role to provide such information, and that some of the information was confidential given the ongoing mediation process.
In Jalisco we considered the case of Río Santiago, considered the most contaminated river in Mexico. The river receives discharges from over 300 companies settled in the industrial corridor Ocotlán-El Salto, one of the most important industrial corridors in the country. One of the most contaminated parts of the river flows through the municipalities of Juanacatlán and El Salto, with a total of 300.000 inhabitants. The main effluents are derived from the metal mechanics and metallurgy, chemical-pharmaceutical, electronics, automotive, food and beverage industries. A study by the Mexican Institute of Water Technology (IMTA) found a total of 1090 toxic substances, chemicals and metals in the river, mainly from industrial sources. It made a strong impact to see the river covered by foam and smell the strong gases and odors that dispersed as the water flowed over the waterfall, El Salto. Local doctors cited an increase in the incidence of different diseases, including leukemia, spontaneous abortions and congenital birth defects, among others. As was pointed out by a representative of one of the businesses operating along the river, the high level of pollution was also a problem for those companies that diligently comply with regulations and avoid contributing to the pollution.
In the case of Río Santiago, in the absence of action by the State, the affected communities prompted the creation of tables of “dialogue” to find solutions with the federal and state governments. Of the demands made by communities, authorities conducted only remedial actions that did not solve the industrial pollution and public health problems. The only solution applied was the creation of two wastewater treatment plants, which do not treat the waste water from the industries but only domestic wastewater discharges from the southern part of the metropolitan area of Guadalajara. Communities expressed frustration that their concerns were not being heard or responded to. Despite the obvious exposure to hazardous industrial contamination, the burden of proof is on victims who are suffering heath impacts.
State authorities were very much aware of the problem, but underlined that this was a Federal matter, and that repeated efforts had been made to set up a working group with Federal authorities to discuss a plan to rehabilitate Rio Santiago. They also underlined that it was the competency of Federal and municipal authorities to oversee the compliance with environmental standards.
The need to strengthen consultation and social dialogue
A general feature of mane of the cases presented to us are lose-lose situations of social conflict, human rights abuse, financial loses for investors, and an undermining of trust in the State and its institutions.
As the Guiding Principles underlines, human rights due diligence should help avoid such situations. Adequate consultation with communities affected by business operations, is a central aspect of human rights due diligence, as it is of critical important to identify early on concerns and grievances.
Several of the business enterprises we spoke with, underlined that consultation with indigenous communities was the competence of Federal authorities, and therefore not their responsibility. In this regard we would like to stress that business enterprises have a responsibility, independent of independently of States’ abilities and/or willingness to fulfil their own human rights obligations, to avoid causing or contributing to adverse human rights impacts through their activities. In our view, business enterprises could and should in all cases take an active interest in ensuring adequate human rights due diligence, including in their value chains, to achieve win-win solutions or at least acceptable compromises.
We would also like to stress that human rights due diligence, set out in the Guiding Principles on Business and Human Rights, requires consultation not only with indigenous peoples, for which separate human rights standards apply, but also with all other affected communities. This approach is also outlined, for example, in the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, which underlines the role of companies in avoiding and addressing adverse human rights impacts.
Environmental and social impact assessments
The Working Group learnt about the limited capacity of the relevant authorities to carry out inspections to control environmental pollution by businesses. The Office of the Federal Prosecutor for Environmental Protection (PROFEPA) is responsible for the inspection and supervision of 200.000 potentially polluting companies to guarantee the enforcement of the environmental regulation and avoid and control environmental pollution and has only 300 inspectors. There is also a restriction on the number of days inspectors can travel to conduct in-situ visits, and such visits are announced 24 hours in advance, which gives time to clean up operation sites before inspections.
The Working Group was encouraged to learn about new legislation, in the framework of the reform of the energy sector, which incorporates the concept of sustainable development. The new Electricity Industry Law and Hydrocarbons Law, part of the reform of the energy sector, include a requirement for businesses, to undertake social impact assessments with a human rights-based approach in the realisation of their projects. However, we also heard that this process does not generally involve the concerned parties or affected communities.
With regard to labour rights, we learned about some of the main challenges faced, including the precarious situation of temporary contact workers, lack of access to social security, low wages, and a minimum wage which is currently set at a level below the basic food basket (canasta basica) and is insufficient to allow workers to support themselves and their families.
Another issue that was raised by Government and civil society representatives, was the weak capacity of the labour inspectorate to effectively monitor compliance with labour standards. Equally, effective monitoring is made difficult by the fact that some 57.2 percent of the workforce work in the informal sector.
During our visit we heard several concerns expressed about restrictions on freedom of association of workers. Similar concerns have been raised by the ILO Committee on the Application of Standards, raising concern about so-called “protection contracts” and the obstacles they pose to the exercise of freedom of association.
A protection contract is agreement signed between an employer and a union leader, often without the participation of the workers and without their knowledge. Several testimonies by trade unionists referred to examples of dismissals of workers who joined or formed independent trade unions.
Agricultural day labourers and migrant workers
Another key challenge concerns the situation of day labourers (jornaleros) and farm workers (peones) working on large plantations. Their dramatic situation is borne out by the official statistics: Out of a total of 2.42 million day labourers and farm workers (making up 44 percent of the total agricultural workforce), more than 800,000 (34 percent) receive no remuneration, while another 750,000 (31 percent) only earn up to the minimum salary.
A significant part of the agricultural day labourers are migrant workers, a majority of which migrate from southern States to the north, following the harvest seasons. The National Commission for Human Rights have documented several cases of abusive working condition of migrant day workers, who often travel with their children. We learned that SAGARPA together with other Government agencies have initiated an inter-sectoral effort to strengthen oversight of labour conditions of agricultural day workers.
In Mexico, child labour is still a major concern. According to national statistics (2015 data), some 2.48 million children in Mexico are involved in an economic activity, out of which more than a million (41.1 percent) are below the age of 15, and 900 thousand (36 percent) do not attend school. In 2015, Mexico ratified the ILO Convention No. 138 (1973) concerning Minimum Age for Admission to Employment which strengthened the reform of article 123 of the Constitution raising the minimum age for admission to employment from 14 to 15 years.
The National Development Plan (2013-2018) includes the policy objective of eradicating child labour. An Inter-ministerial Commission for the Prevention and Eradication of Child Labour and Protection of Young Workers was established in 2013. Its purpose is the coordination of the agencies of the Federal Public Administration in the design, implementation and evaluation of policies, programs and actions in the prevention and eradication of child labour and for the protection of young workers, based on the applicable regulations.
Persons with disability
Another challenge in Mexico is to include persons with disabilities into the labour market. According to national statistics, the participation rate of persons with disabilities is 39.1 percent, which is 25.6 percent below that of persons without a disability. While we note the existence of a National Council for the Development and the Inclusion of Persons with Disabilities and a General Law for the inclusion of persons with disabilities (2011), little effort seems to be made to encourage companies to employ persons with disabilities. In this regard, the Working Group encourages the Government to follow up on the recommendations made by the Commission on the Rights of Persons with Disabilities to implement affirmative action measures both in the public and private sectors.
Gender discrimination in employment is a serious concern. According to the ILO, the labour force participation of women (42.2 percent) is not only the lowest in OECD countries, but the lowest in the whole of Latin America. The employment rate for women is 44.6%, 33.5 percentage points less than men and the wage gap between men and women amounts to 18.3%.
Between 2011 and 2016, the National Commission for the Prevention of Discrimination (CONAPRED) received 1,726 complaints filed by women, among which 73% relate to acts of labour discrimination or discrimination in the work place. According to a recent report, 20 percent of women reported having been subjected to sexual harassment in the workplace, while 15 percent reported that they had been requested to provide employers with pregnancy tests.
Discrimination faced by women is also reflected in a low number of women in decision making positions both in the public and private sectors. Less than 5 percent of companies registered on the Mexican stock exchange have female CEOs.
Human rights defenders
Between 2010 and 2014, a total of 615 cases of human rights abuses against human rights defenders, including 36 murders, have been reported. Several United Nations Special Rapporteurs have urged Mexico to take urgent action to address this alarming situation.
The Working Group heard testimonies from human rights defenders who explained that they faced continued attacks, threats, harassment and aggression because of their work to protect and promote human rights. Environment human rights defenders and indigenous leaders have been particularly targeted when they have shown opposition to development projects.
We recognize that the Government has taken important steps in the protection of human rights defenders such as the National Mechanism to Protect Human Rights Defenders and Journalists (currently protecting 465 human rights defenders and journalists). However, too often cases remain unpunished without effective investigations and sanctions. There is an urgent need both for the Government and business enterprises to publicly acknowledge the critical role played by human rights defenders and civil society organizations, including journalists, and to take a clear stance against cases of attacks and intimidation.
Access to remedy
The amparo procedure serves as an ultimate resort for protection of individuals against violations of human rights guaranteed in national Constitution and in the international human rights treaties to which Mexico is a party. The objective of an amparo is to restitute the rights violated and to oblige the responsive authority to respect these rights.
One change introduced by the Amparo Act of 2013 is that any legal person can be considered a responsible authority for actions or omissions which adversely affect the human rights of a third party. In other words, an amparo ruling can in principle be issued against actions or omissions by a business enterprise, though there is as yet no precedent for this.
The large number of amparo orders in cases concerning business-related human rights harm is an indication that other means of mediation and dispute settlement are failing, as access to legal courts should normally only be a measure of last resort.
The amparo procedure also has certain limitations. The most serious being that amparo rulings in favour of aggrieved individuals are in some cases not complied with, even if such non-compliance is clearly illegal. Another limitation is that the amparo procedure is not easily accessible and would normally require the intervention of non-governmental organizations volunteering to provide legal aid to victims.
National and State Human Rights Commissions
The National Commission on Human Rights and the autonomous Human Rights Commissions at State level currently do not have a mandate to deal directly with human rights cases related to acts or omissions of business enterprises. Rather, they do so indirectly by addressing acts or omissions of public authorities in such cases. The National Commission and the State Commissions we met with in Oaxaca, Jalisco and Sonora, have all issued several recommendations related to the conduct of business enterprises.
The Working Group was particularly pleased to see that the National Commission on Human Rights has taken the Guiding Principles fully on board. The Commission has published a booklet on the Guiding Principles and was actively seeking to raise awareness amongst businesses about the important of human rights due diligence. The Commission is ideally placed to conduct such awareness raising campaign and to facilitate dialogue between the different parties.
General awareness the UN Guiding Principles
Our impression is that awareness amongst business enterprises about the expectation of human rights due diligence set out in the Guiding Principles is low. Increasingly, major companies do annual sustainability reports, but we did not see any examples of such reports that demonstrated that human rights due diligence is integrated into the company’s operations. Several companies are members of the local UN Global Compact network and subscribe to the 10 Global Compact principles covering human rights, labour, the environment and anti-corruption.
We found that there was some awareness about the business and human rights agenda amongst Government agencies, and we also found references to the Guiding Principles in public information material. Yet, the Government must to more to set out clear expectations that businesses respect human rights and have adequate human rights due diligence procedures in place.
In its own capacity as an economic actor – e.g. through public procurement, State-owned enterprises and national development banks – the State should lead by example and ensure that human rights due diligence is integrated in policy and practice.
National Action Plan
The National Human Rights Programme 2014-2018, included for the first time a specific reference to the promotion of human rights in polices and activities of business enterprises. In particular, it includes five action points (Strategy 4.4) aiming to: (a) strengthen the mechanisms to ensure that business enterprises respect human rights; (b) encourage business enterprises to include human rights in their codes and policies; (c) promote a human rights approach/focus in corporate social responsibility; (d) promote legislation to regulate business activities which guarantee human rights; and (e) ensure that business enterprises know their human rights responsibilities.
As the main step taken toward implementation of these objectives, a process was initiated in December 2015 to develop a National Action Plan (NAP) on Business and Human Rights. We, in the UN Working Group on Business and Human Rights, have been actively encouraging these efforts, and very much welcome this development.
The NAP process is breaking new ground by establishing a platform for dialogue between Government, business and civil society. It is also contributing to the increasing momentum of public policies and action plans on business and human rights in the region.
We look forward to following this promising process, which we hope can help instil a culture of dialogue across States, business and civil society. In this regard, we would encourage that the membership of the NAP Working Group be expanded to include main national business associations, main sectorial trade unions, as well as representatives of indigenous communities.
For the NAP process to succeed, it will be critical to maintain its inclusive, multi-stakeholder nature, in the development, implementation and monitoring phases. Also, to avoid the risk of becoming just another statement of good intentions, the NAP must be anchored in a realistic assessment of the multiple challenges faced, and must set out measures for action which are specific, measurable and achievable.
In closing, we would like to make some general observations concerning challenges that must be addressed in order to better protect human rights in the context of business operations in Mexico.
On the one hand, we were encouraged to see that there is a commitment on the part of the Government to move the business and human rights agenda forward. However, it requires further efforts to change policies, practices but also mind-sets to foster a culture of transparency, integrity, ethical behaviour and democratic values. We would like to highlight as well the need for the Government to lead by example. The drafting process of the National Action Plan on Business and Human Rights is a great opportunity to translate political will into real actions, allowing the exercise of leadership.
As the principle of due diligence is at the core of the UN Guiding Principles of Business and Human Rights, preventing harm or damages with sufficient anticipation should lead to a win-win situation as negative impacts will be avoided. Therefore, based on this approach, it is relevant to bear in mind that not all investment projects should be considered viable.
An overriding issue we observed is the absence of a coherent policy framework for appropriate due diligence, and the inadequate implementation of laws and regulations; a problem which is exacerbated by the complexity of overlapping and competing competencies of three levels of Government: Federal, State and municipal.
We also highlight the need to design and implement effective mechanisms for consultation with all stakeholders, strengthening a culture of social dialogue. In a multicultural country such as Mexico, this dialogue needs to include, in particular, indigenous peoples. According to best practices, this consultation should take place at the earliest stage of any development project and it needs to ensure that it is prior, free and informed in line with international standards.
Another observation is the general absence of administrative and company-based grievance mechanisms, which could allow public authorities and business enterprises detect grievances at an early stage and more effectively prevent against human rights abuse. In this regard, the innovative grievance mechanism operated by the National Council to Prevent Discrimination could be an example to follow.
Human rights defenders and journalist must be better protected to allow them to carry out their crucial role to uphold human rights. In the face of widespread attacks and intimidation against people who speak up for their rights, Government officials at the highest level and business CEOs must take a clear stance that intimidation and attacks on human rights defenders is not acceptable and will not be tolerated.
We also saw evidence of censorship and sanctioning of investigative journalists who have exposed conflict of interests and corruption. There is also a need to re-establish trust in the legal system. While courts have in many cases been able to protect the rights of victims, there are also cases of court orders which are not being respected.
In spite of the challenges faced, we are encouraged that there is a commitment on the part of the Government to move the business and human rights agenda forward. We are also encouraged by the fact that there is a thriving civil society in Mexico which will make progress possible.