Working Group on Business and Human Rights
Tegucigalpa, 28 August 2019
During their 10-day mission to Honduras, the expert group’s delegation comprised of Ms Anita Ramasastry and Mr Dante Pesce, held meetings and visits in the Departments of Colon, Cortes, Intibucá, and Francisco Morazán.
We would like to extend our sincere appreciation to the Government, in particular the Ministry of Human Rights, for their strong cooperation and support in the organization of the visit. During our visit, we met with a number of high-level representatives from the three branches of the State. We met with the Ministers of Human Rights; Foreign Affairs; Energy; Natural Resources and Environment; Agriculture and Livestock; and the Deputy Ministers of Labor and Social Security; International Trade and Economic Development, as well as with representatives of the following Government departments: Ministries of Government General Coordination; Infrastructure and Public Services; Revenue Management Service, Institute for the Forest Conservation, National Institute on Geology and Mines National Institute on Women, National Agrarian Institute, Property Institute, National Directorate of Indigenous and Afro-Honduran Peoples, National Directorate for Children and Adolescents, Commission for the Promotion of Private Public Partnership, National Commission of Banks and Insurance, Superintendence of Public Private Partnership, National Investment Council, Strategic Investment of Honduras.
We also met with the Governors of the Departments of Colón, Francisco Morazán and Cortes, as well as the Mayors of Intibucá and Reitoca. In addition, we held meetings with member of Congress which chair different commissions; with the National Commissioner on Human Rights and his team; with magistrates of the Supreme Court of justice; and with the officials of the Office of the Attorney General; its deputy General Director and representatives of the Offices of Special Prosecutor for Ethnic Groups and Cultural Heritage; for the Protection of Human Rights Defenders, Journalists, Media Workers and Justice System Actors; for Environment; for Human Rights; and Against Trafficking in Persons, Sexual Exploitation and Illicit Trafficking in Persons.
We are also grateful to all the individuals, organizations and companies that made themselves available and traveled long distances to share their experiences with us and to engage in an open and frank dialogue on current initiatives, opportunities and challenges to implement the UN Guiding Principles on Business and Human Rights (UNGPs). During our meetings held in Intibucá, Reitoca, San Pedro Sula, Tegucigalpa and Tocoa, we met with representatives of civil society organizations, local communities, indigenous peoples, workers and trade unions; as well as with members of United Nations Country Team and representatives of companies and business associations covering a wide range of sectors, including board members of Consejo Hondureño de la Empresa Privada (COHEP), the national association of industries of Honduras (ANDI), and the Executive Director of the Chamber of Commerce and Industries of Cortes and individual business enterprises.
The General Context of Business and Human Rights in Honduras
The purpose of our visit was to assess how the Government and the business sector discharge their respective duty and responsibility under the UNGPs to prevent, mitigate and remedy human rights abuses and negative impacts linked to business activity. This preliminary report shares and builds on the main findings of previous Special Procedures mandate holders who visited the country, including the Special Rapporteurs on the Independence of Judges and Lawyers, on Indigenous Peoples Rights and Human Rights Defenders. From the outset, we would also like to recall that we are not United Nations employees, and as independent experts, exercising a professional and impartial judgement, we report directly to the United Nations Human Rights Council.
We note that Honduras has expressed a commitment to implementation of the UNGPs and our visit is meant to identify key issues and areas for further activity relating to this topic. We commend the Ministry of Human Rights for making this issue a priority and for acknowledging that ensuring business respect for human rights is a key part of sustainable development for the Honduran people.
We encourage all ministries to participate actively in the development a business and human rights policy for Honduras as a shared obligation.
Honduras is a low middle-income country that faces major challenges, with more than 60 percent of the population living in poverty as of 2018. In rural areas, approximately one out of five Hondurans live in extreme poverty (less than US$1.90 per day). Since the 2008-2009 global economic crisis, Honduras has experienced a moderate recovery, driven by public investments, exports and higher remittance levels. Nonetheless, the country faces the highest level of economic inequality in Latin America.
Another major challenge is the high rates of crime and violence. Although in recent years the number of homicides has declined, Honduras continues to have one of the highest rates in the world (40 murders per 100,000 inhabitants in 2017, according to Government’s figures).
The economy of Honduras is mainly based on agriculture and has the third-largest maquila sector in the world. The government has focused on export-driven growth as well as foreign direct investment as a way of accelerating economic growth. Economic development and investment, however, has created significant challenges for the country, and led to concerns about human rights abuses linked to investments in development projects, including in the energy and mining sectors.
Investments in these projects are often accompanied by social conflicts, with long lasting repercussions on the society and the economy. Corruption and weak public institutions are among the factors fuelling the lack of trust in State authorities and exacerbating social conflict affecting all stakeholders – from civil society and indigenous communities, to business and the government. Investment appears to have outpaced protection of people and the environment.
A consensus exists among civil society and the private sector that key ingredients to promote trust in the government is strengthening the independence of the judiciary, guaranteeing the separation of powers and ensuring transparency and accountability. These are the foundation for responsible business conduct and stable investment that benefits all.
Salient issues in Honduras regarding Business and Human Rights
The need for meaningful dialogue, consultation and participation
In our meetings with government officials, businesses, civil society organizations and community members, we learned that the escalation of social conflict related to extraction and exploitation of natural resources and large-scale development projects, is often linked to the lack of meaningful consultation.
We heard numerous concerns about the way in which the requirement for consultation is implemented in the form of an open public meeting in the municipality. The absence of a comprehensive legislative and regulatory framework on participation rights has contributed to the creation of scattered participation landscape, in which companies have large margins of discretion on how to engage the community. Municipalities have implemented the requirement “to socialize” the projects in a discretionary manner, which further contributes to mistrust among all stakeholders. The practice of consultation is inconsistent and there is no real measure of whether consultation is effective and meaningful.
According to the Ministry of Environment (MiAmbiente) consultations should take place before granting a licence. However, we heard that municipalities often hold open public meetings when environmental licenses have already been granted. It is also unclear to what extent the national ministries engage with local stakeholders to assess possible social impacts as part of an assessment of a project’s feasibility.
Both local communities, including indigenous communities, as well as businesses have signalled an urgent need for a clear regulatory framework on participation as a key tool to address root causes of social conflict. Business associations also noted the high economic costs for companies of such conflicts, including costs of operations that are stalled, damage to a company’s reputation and investors withdrawing from funding, like in the case of the Agua Zarca dam case.
Ministerial Decree 134-90 established consultative assemblies in open town hall meetings as a tool for municipalities to “socialize” projects. . In this context, the Working Group emphasis that “socialization” does not correspond to consultation. In this context, the Working Group received information regarding the systematic failure by public authorities to ensure meaningful participation from an early stage, when all options are still open and no irreversible decision has been made prior to the commencement of a project. Such practice has greatly undermined trust in State authorities that are perceived as acting exclusively in the interest of the companies. The publication of a concession approval in national newspapers and radio may not be sufficient to inform fully all rights holders who may be impacted by a project.
The Working Group stresses that consultation with communities is a central aspect of human rights due diligence as set forth in the UNGPs, so as to identify early on concerns and grievances and to better understand the potential impacts of a project on local peoples and the environment. We recommend that any kind of consultation and engagement should take place at the earliest stage of a project. The right to participate should be recognized as a continuum that requires open and honest interaction between public authorities, the private sector and all members of society, including those most at risk of being marginalized or discriminated against, particularly women, indigenous and afro Honduran peoples, and persons with disabilities.
As we discuss below, any consultation should provide an explanation of the negative and positive impacts of economic activity. This means presenting findings from environmental studies in a manner that is understandable to those that lack technical expertise. For businesses it means engaging in social (human rights) impact assessment, alongside analysis of potential environmental harms. In all cases, plans for mitigating impacts need to be developed and shared with all relevant stakeholders.
The pattern of lack of participation is aggravated in cases concerning indigenous communities, as seen in cases of Reitoca and Tornillito hydroelectric projects. The Working Group is concerned at the prospect of the passage of the new draft framework legislation on free, prior and informed consultation and consent with indigenous and Afro-Honduran peoples presented to the Congress in May 2018. According to information received, the draft suffers from great shortcomings both in methodology and substance. The draft law does not reflect international and regional standards on consultation and consent for indigenous peoples. It also presents problems in ensuring adequate consultation processes, indigenous representation in the consultations, and the capacity of state institutions to undertake and supervise consultation processes.
The Working Group urges the government to implement the recommendations of the Special Rapporteur on Indigenous Peoples from her country visit in 2018. This includes ensuring an inclusive consultation process in order to adopt a regulatory framework on the right to free, prior and informed consultation of indigenous peoples in accordance with the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), the United Nations Declaration on the Rights of Indigenous Peoples, and the American Declaration on the Rights of Indigenous Peoples.
As the Special Rapporteur noted in the specific case of Agua Zarca and other projects where similar human rights violations have occurred, in the absence of such regulatory framework, “other alternatives that are respectful of the rights of indigenous peoples must be considered in future concessions.”
We note with interest that the Ministry of Energy is consulting with other States to develop guidelines and good practices regarding consultation. For example, it has looked at how other countries in the region have developed better processes for consultation. We also note that some companies, after experiencing social conflict have examined their processes to ensure better consultation as part of their human rights due diligence.
Environmental impact assessment and licencing
We heard repeatedly about the lack of transparency and hence lack of confidence of the current system to prevent and mitigate adverse human rights and environmental impacts. For several years, the State has privileged more flexible regulation governing extractive and energy sectors in order to facilitate licensing and concessions procedures. It is urgent to ensure a regulatory framework firmly grounded in international human rights law and standards, including the UNGPs.
The General Law of the Environment (Law 104/93) mandates the Secretariat of the Ministry of Environment to coordinate and regulate the National Environmental Impact Assessment Evaluation System. The regulation requires all projects potentially harmful to the environment to obtain an environmental license form the Secretariat of the Environment. An official classification of projects issued by the Ministry of the Environment through Resolution 635/2003 requires an environmental impact study for category 4 projects, which are considered the highest risk.
Through the Decree 181-2007 (Delegation de Licenciamiento en las Municipalidades), the concession and licensing process was decentralized with the aim of simplifying and accelerating the licensing processes oriented to attract investments. Under this regime, the main responsibility to grant the environment licence rests with MiAmbiente, and the Congress signs the final contract with the company.
The Working Group has heard about the lack of clear standards on qualifications required to conduct environmental and social studies. We have learned from MiAmbiente that a digital platform has been created to simplify the environmental licence procedure and to facilitate access to information. However, the Working Group has heard about a systematic lack of access to information by other stakeholders, to key document projects.
The opacity of the process of granting licences and concessions may be further aggravated by the possibility, under the Ley para la Clasificación de Documentos Públicos Relacionados con la Defensa y Seguridad Nacional (Legislative Decree 418-2013) and subsequent Ministerial Decrees 725-2008 and 1402-2018. It was reported to us that critical elements of the licence and concession processes, including information contained in the Environmental Impact Study, and location of exploratory permits may be classified as “Secret information”. We recommend the Ministry of Environment to ensure appropriate access to information at all stages of environmental licenses and the issuing of concessions. We also urge State authorities to sign the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement).
In our conversations with the business sector, we learned that in many instances companies have obtained licences and concessions to operate in conformity with national legal standards on licensing and concessions, including the requirement to “socialise” the project and the outcome of the environmental impact assessment study. However, we are concerned about the reported practice of some companies of sharing only partial information, focusing on potential benefits for some that would arise from a project, including job creation and health and education support for employees of the company, without adequate information on the negative impacts and mitigation measures. In a context in which the State struggles to discharge of its responsibility in relation to economic and social rights, such practice contributes to turn community members against each other.
We are concerned that the Congress is not exercising oversight when signing contracts, to ensure that the impacts on the rights of the people and environmental are transparently assessed and mitigated, with an inclusive participation of the affected individuals and groups. In this respect, we are quite alarmed regarding the case of the Botaderos Mountain Park, located on the border between the Departments of Yoro, Colón and Olancho. The Mining Law prohibits granting mining licenses in areas that are inscribed in the catalogue of protected areas. However, the Working Group was informed about the decision of the Congress to pass a Decree to reduce the core zone of the park from 24,223.7 hectares to 24,000 right before the relevant concession was granted. As such a change in zoning coincided with the territory where two mining concessions were submitted, we are concerned that the purpose of the decree was to accommodate the two concessions, so that they would not be located in the core zone where operations are prohibited.
Agriculture continues to be a large driver of economic growth and Honduras has many small farmers that engage in small scale and subsistence farming. Indigenous communities often hold collective ancestral titles/deeds on land. Approximately 80 percent of privately held land on Honduras is either untitled or improperly titled. Because of the weak judicial system, it may take years to resolve title disputes, and there may be conflicting records due to the need to modernize the registration system,
During our visit, we learned that access to, use and control over land is a recurring issue at the roots of many social conflicts, where business enterprises are (directly or indirectly) involved. The Government informed us about several measures taken to register and adjudicate land, including for the benefit of small-scale farmers and indigenous and Afro-Honduran peoples.
Farmers explained the impact they suffer in relation to access, and use of land and natural resources in the context of economic projects. In this context, we identified some recurring patterns. First, the Government has been granting land titles to companies in disputed areas or areas used/controlled by small-scale farmers, including indigenous peoples. We heard that peasants, suddenly deprived of their sole means of livelihood, have often returned to the land in the absence of any alternative livelihoods. Companies would subsequently file judicial complaints against them. In Bajo Aguan, for example, such a pattern fuelled violence, with dozens of people reportedly killed, hundreds injured and hundreds arrested.
Second, we learned that the Government have granted operation licenses in non-core protected areas, affecting communities and indigenous peoples’ cultural heritage and livelihoods as in the case of the Tolupan indigenous peoples in San Francisco Locamapa. We remind the State’s obligation to protect indigenous peoples right to freely dispose the land and natural resources, including ensuring that they are consulted before these projects are approved.
Third, we heard that the numerous evictions, seeking to allow business to operate, have been conducted with the excessive use of force by police and military, and in some cases with the involvement of private security companies, resulting in the loss of life and grave injury to people.
Business should exercise due diligence before initiating operations on land which are inhabited or used by communities for their livelihoods and proactively engage. The Government should adopt effective measures against forced evictions in line with international human rights standards, and ensure that victims have access to effective recourse that allows for restitution of their possessions, return to their home or land and appropriate indemnification. In parallel, the Government should establish a dedicated independent mechanism for the mediation and management of social conflicts arising from economic activity, including land disputes with necessary technical and budgetary capacity.
Many Hondurans are leaving the country, not only due to insecurity and violence, but because of lack of viable economic opportunity. Protecting labour rights is an important part of ensuring stable workforce. We positively note that the Government, at the national and local level, has adopted measures seeking to improve access to the labour market and working conditions at the workplace, as well as to eradicate child labour and regularize informal labour.
Nonetheless, the Working Group still observed that the labour context represents a critical underlying factor to economic inequality. According to official data, 68.5 per cent of the population is either unemployed or underemployed, among those 5,7 percent are unemployed, 14,2 percent are visibly under-employed, and 48,6 percent are invisibly underemployed. . The minimum wage does not allow a decent standard of living for workers and their families. In addition, we learned about extremely precarious working conditions, including in the garment, domestic, fishing and agribusiness sectors. Pervasiveness of child labour is of urgent concern- more than 400 000 children work, mainly in the agriculture sector.1
We welcome the adoption of the new Labour Inspection Act in 2017,2 which addresses concerns and weaknesses identified in the former regime, such as the possibility for the employer to refuse an inspection. The labour inspection system is concentrated in the General Directorate on Labour Inspections, under the Ministry of Labour and Social Security.
The Government informed us that the number of inspectors increased from 98 to 180, and would progressively reach 300. The increase of inspections realized, and higher financial penalties imposed for violations of workers’ rights, such as the right to form unions, are important steps to uphold labour rights. We encourage the Directorate of Labour to assess and collect penalties in compliance with the Inspection Act and to sanction companies that do not uphold labour rights. We encourage the provision of adequate resource to enable the Directorate to fulfil its mandate.
We learned that the full enjoyment of the workers’ rights of association; to form and join trades union is unfortunately far from being a reality. Serious concerns remain with respect to the protection of internationally recognized labor rights in Honduras, including the effective enforcement of labor laws related to:
- the right of association and the right to organize and bargain collectively, specifically related to protections for founding union members and leaders, anti-union retaliation, union dissolution, and employer interference with the right to associate and bargain collectively;
- conditions of descent work that include minimum wages, hours of work, and occupational safety and health; and
- the minimum age for the employment of children and the prohibition and elimination of the worst forms of child labor.
On a cautiously positive note, we learned the growing creation of trade unions and meaningful dialogue between employers and unions in the maquila garment sector that have led to same improvements. This does not mean that the maquila workers did not have concerns about their wages, or occupational health and safety for workers. We also heard from different sectors some satisfaction concerning the multi-stakeholder Economic and Social Council,3 in order to assist the Government to promote dialogue.
We were glad to learn of measures taken to do with the deplorable working conditions of fishing divers, mainly indigenous Miskito workers, in La Mosquitia, including through the inter-institutional commission led by the National Directorate of Indigenous and Afro-Honduran Peoples. Regular investigations have also been conducted by the labour inspectorate. However, we heard that additional clearer and consistent agreements should be taken within the inter-institutional Commission to address health, safety, education, housing concerns for injured persons and relatives of deceased workers, with the meaningful participation of the interested stakeholders.
We noted the creation of a solid institutional and normative framework on women’s rights to address different forms of discrimination suffered by women. However, they remain particularly vulnerable to precarious work-related environment. Informality and unemployment hit them harder and persistent horizontal and vertical occupational segregation still exists.4 Women represent only 34.7% of the labour force,5 earn less than men and are exposed to extremely poor working conditions, including in the garment and domestic work sectors.
We were particularly concerned by the testimonies of maquila women workers, who are exposed to physical and mental stress, including repeating arduous physical tasks over extended working hours in order to meet high production objectives. Those who suffered distress and disabilities due to their working conditions were consequently terminated. In addition, in a country where violence against women is rampant, commuting to and from work at night put them at higher risk. This violence also permeates the work place, where women report harassment and sexual violence. In addition, women are particular disadvantaged in comparison to men in terms of access to land, financial credit and farming assets.6
Transparency and corruption
We found broad agreement among civil society and some representatives of the private sector that the situation of impunity and widespread corruption has eroded confidence in public institutions, and impeded sound and sustainable economic growth. The grievances related to companies colluding with corrupt officials is compounded by the lack of provisions in the current legislation to deal with conflicts of interest among public officials, with respect to their business associations and investments, as well as those of their close family members. Similarly, we flag as a serious deficiency the absence of provisions in place that require public official to disclose their asset and income in compliance with the United Nations Convention Against Corruption. We note that there were prior plans to develop an asset and income disclosure mechanism, and public registry, but this has not materialized. Given this context, we recommend Honduras to focus on transparency measures relating to business activity that would instill greater confidence in Congress and various government departments concerning their decision-making.
The Working Group welcomes institutional efforts to strengthen national capacities to deal with corruption, including the creation of the Special Fiscal Unit against Corruption Impunity (UFECIC) in the Office of the Attorney General. These steps were taken with the valuable support of the Mission of Support against Corruption and Impunity in Honduras (MACCIH). In this context, the Working Group considers the work done by MACCIH to support and strengthen Honduran institutions and assist them to prevent, investigate and punish acts of corruption as a fundamental part of the efforts to combat impunity. The Office of the Attorney General might consider the seriousness of an act of corruption on human rights abuses as an aggravating factor in whether to proceed with a particular case.
The Working Group echoes the Special Rapporteur on Independence of Judges and Lawyers in urging the renewal of the Mission’s current mandate expiring in January 2020, and echoes previous calls for a consolidation and strengthening of its functions, especially in the area of investigation and accountability.
We join our voice with representatives of business and civil society who are concerned that the amendments to the Criminal Code, which will enter into force on 10 November 2019 will reduce criminal penalties for embezzlement, fraud, illicit enrichment, and drug trafficking, potentially allowing some corrupt officials to avoid serving any time in prison. We recommend the Congress postpone the entry into force of the new Code to allow more time for stakeholders’ input.
The Role of the Private Sector in Ensuring Respect for Human Rights
In our meetings with companies and with the major business associations such as COHEP, ANDI and the Chamber of Commerce for Cortes, we noted that each had taken steps to socialize the UNGPs among their members – both for larger companies as well as small and medium sized enterprises. This took the form of training as well as the creation of guide books and tools. We note positively that the business community understands that human rights due diligence – the idea of identifying the negative impacts of their business operations – whether in mining or other projects, or in value/supply chains, allows them to better prevent and mitigate those harms.
At the same time, we note with concern that many of the business representatives with whom we spoke rely on their compliance with legal requirements such as the obtaining permits or concessions, as the key factor giving them the right to operate in a given community or area. We observe that given the lack of clarity in the existing legislation, as well as the weak institutions in Honduras, reliance on the law does not give a company the consent and trust of the local community which is as essential as getting a license. It is not enough for companies to merely comply with the law – a good practice is to align their own operations with international good practices, including using the UNGPs and human rights due diligence, and the development of respectful and meaningful practices for consultation. This will pave the way for ensuring the trust and confidence of civil society in business activity, and avoid the large costs both social and economic, of prolonged social conflict.
We do note that other stakeholders also have important role to play including international and regional development finance institutions, and commercial banks, who can ensure that international standards are used in projects with environmental and social impacts. We also note that the states from which companies are located that invest in Honduras, should use their leverage to ensure that those investors respect human rights in their business and investment activity in Honduras.
We would urge business to see defenders not as enemies but as valuable partners who have knowledge of local conditions and can provide business with information from the ground as to potential impacts of projects and who can also help companies to understand the local context.
Access to Remedy and Accountability
During the past six years, Honduras has engaged in various initiatives to improve access to justice and to ensure accountability for human rights abuses, including those related to business activity. An example of this is the creation of the Office of Special Prosecutor for the Protection of Human Rights Defenders, Journalists, Media Workers and Justice System Actors in 2018 tasked to investigating serious threats to human rights defenders and staffed with five prosecutors.
It is unclear at this early stage what impact this office will have. Many defenders have not filed complaints because of lack of trust in the process. While there are special offices that investigate environmental crimes or certain crimes impacting indigenous peoples, serious crimes such as murder, are prosecuted by regular (ordinary) prosecutors. Civil society and lawyers working with communities and human rights defenders note that many of their cases are often not investigated, remain stalled at the investigation phase, or delayed when transferred to the court. On the other hand, they highlight that the large volume of criminal complaints brought against them are processed and prosecuted promptly.
We would note that the Attorney General should consider specialized training on business and human rights for prosecutors focussing on cases relating to corporate human rights abuses. In addition, civil society has called for strengthening of these Offices of Special Prosecutor for Ethnic Groups and Cultural Heritage and for Environment, in terms of resources and staffing.
Moreover, the Office of Attorney General might also consider a specialisation for prosecutors dealing with corporate crimes that have human rights connections.
Courts and the Judiciary
We concur with the Special Rapporteur on the Independent of Judges and Lawyers in his recommendations regarding reviewing the procedure for selecting and appointing Supreme Court Judges. The business community and civil society have also voiced support for these recommendations. We heard from numerous stakeholders about the widespread lack of confidence in the judiciary. For civil society, this relates partially due to the selection process of high court judges and the perception of their lack of their understanding of human rights and the situation of human rights defenders. We recommend training to equip judges to deal with complex business and human rights cases, including on the UNGPs.
National Human Rights Institution/CONADEH
We met with the National Commission on Human Rights, a constitutional body with a strong mandate to protect and promote human rights in Honduras. CONADEH has expressed a willingness to further advance the UNGPs and business respect for human rights in Honduras. In our meetings with civil society, many expressed a lack of confidence in CONADEH. In 2013, the CONADEH was downgraded to a “B status” by the Sub-Committee of Accreditation of National Human Rights Institute for lack of compliance with the Paris Principles. It is critical that CONADEH strengthens its mandate and develop a more proactive strategy to reach out to human rights defenders seeking protection. The institution should be more proactive and publicly vocal when human rights defenders are at risk or subject to violent attacks or death.
Company Grievance Mechanisms
While there is concern about the effectiveness of the courts and the Office of Attorney General of investigating cases of business related human rights abuses, and holding those responsible accountable, there is also a need for companies to provide more effective grievance mechanisms for rights holders and communities, in accordance with Principle 31 of the UNGPs. This would involve doing more than just socializing projects with communities, but actually providing an effective mechanism for them to register complaints and grievances, that is trustworthy and effective. In other contexts businesses have turned to independent institutions and third parties to provide such mechanisms, given the lack of trust that individuals may have in a company driven mechanisms.
Human Rights Defenders and Criminalization
We heard stories that a significant number of human rights defenders who work for the respect and protection of human rights in the context of business activity have been arbitrarily arrested, intimidated, and some of whom were killed. Stigmatization spearheaded by high-ranking officials and media not only disempowers them, but often it exposes them to heightened risks. They are at risk in most parts of the country and lack access to justice.
We have been impressed by the active and engaged civil society who operate throughout the country in the face of these systematic challenges.
We heard a number of testimonies of defenders who reported having been threatened, targeted by companies, especially in the field of extractive or hydro-electric industries, because of the work in protection of their land and natural resources in the context of large-scale projects that do not address adverse impacts. We see these people peaceful citizens who are genuinely worried about depletion of their natural resources.
We are very concerned about the widespread practice of criminalizing human rights defenders for their human rights work, in particular in the context of exercising their right to peaceful protest and freedom of expression. Criminalization usually takes place through filing of unfounded allegations or complaints based on criminal offenses, which might not conform to the principle of legality or comply with international human rights standards. Subjecting defenders to lengthy legal proceedings is a tool to intimidate them and deter their advocacy efforts.
We encourage relevant authorities to establish strong cooperation and collaboration with the Office of the Special Prosecutor for Human Right in view of the seemingly pervasive nature of these attacks and threats. We note that other States in the region have developed protocols for the investigation of criminal charges against human rights defenders that call for further examination of whether the charges are legitimate or may be used as a pretext to prevent criticism of business activity.
Lack of Accountability
While the justice system seems to be used frequently to pursue cases against human rights defenders the same does not appear to be true with respect to the investigation of crimes committed against defenders. The Special Rapporteur on Human Rights Defenders reported that 75 human rights defenders, such as journalists, social communicators and media staff were killed and in only 6 cases perpetrators were identified since 2001.4 Impunity and lack of investigation of attacks against human rights defenders and journalists remain the rule, rather than the exception. Seven individuals, considered as material perpetrators of the assassination of human rights defender Berta Caceres assassination have been convicted but not yet sentenced, and the prosecution of one intellectual author of the crime is awaiting trial. This is an example of delayed justice and many more cases appear stalled or never investigated.
National Protection System
In 2015, the Honduran Congress adopted a law to protect for the Protection of Human Rights Defenders, Journalists, Media Workers and Justice System Actors.8 With the support of human rights defenders and civil society, this law led to the establishment of the National Protection Mechanism. The adoption of the law and the mechanism represents a landmark development for the protection of human rights defenders in Honduras9. We commend the Government on the creation of a protection mechanism dedicated to human rights defenders, include union leaders, journalists and lawyers. Likewise, the national protection system has been a commitment of all the institutions that are part of the National Protection Council. All these institutions should be strengthened and better resourced, including for the development of protocols for risk assessments that take into account gender and indigenous peoples.
Of concern is the approval by Congress of amendment on terrorism of the new Criminal Code that defines “terrorist associations” any group of two or more people who commit a crime with the intention of “gravely subverting the constitutional order, gravely affecting public peace or provoking a state of terror in the population or any part of it.” The vague and broad terminology may criminalize individuals exercising their right to freedom of expression, and of assembly and association. We are concerned of the impact that these new articles may have on human rights defenders and their legitimate work. We reiterate the call to delay implementation of the new Code.
Development of a National Action Plan on Business and Human Rights
We welcome the willingness of the Government to develop a National Action Plan on Business and Human Rights. We also positively noted the precaution taken by the Government to engage step by step in this process, recognizing that first this requires building trust as a precondition for multi-stakeholder engagement and this takes time. We recommend that every step and its outcomes are developed in a transparent and inclusive manner. The Government should also fully acknowledge that some of the key actors in this process continue to suffer systematic criminalization and violence in social conflicts where business are involved. Therefore, in order to rebuild trust, the Government should take concrete measures to address these issues.
As we conclude we once again than thank the Government for its invitation to visit and to provide recommendation regarding how to improve business respect for human rights in Honduras.
National Statistics Institute, Household Survey, 2018.
2/ decree No. 178-2016 of 23 January 2017
3/ created by the executive decree PCM016-2001
5/ National Statistics Institute, Household Survey, 2018.