On November 23, there was held an online meeting of all stakeholders with the newly elected Special Rapporteur of the Aarhus Convention on Environmental Defenders, where he presented his mandate and talked about his future activities. Below we will consider the key aspects of Michel Forst’s vision of the mandate https://unece.org/sites/default/files/2022-11/Vision_for_mandate.pdf?fbclid=IwAR15mf5QmmOEsTMbf9GEifLGB1d15u5vdzpy0NLT4GZCE-IFeMfr5xeWJ2A.
Mr. Michel Forst noted that when in October 2021 the Meeting of the Parties to the Aarhus Convention decided to create a Rapid Response Mechanism, thereby recognizing the seriousness of the risks faced by environmentalists, it recognized the urgency of more effective protection against various threats. He strongly believes that the Rapid Response Mechanism established under the Aarhus Convention has a key role to play.
His efforts to develop this mechanism will be based on seven principles of the protection of human rights defenders, namely:
1. The priority of protecting the rights of environmental defenders;
2. Recognising that environmental defenders are diverse; they come from different backgrounds, cultures and belief systems. From the outset, they may not identify themselves as environmental defenders;
3. Recognising the significance of gender in the protection of human rights defenders and apply an intersectionality approach to the assessment of risks and the design of protection initiatives;
4. Focusing on the “holistic” security of defenders, including their physical sefety, digital security and psychosocial well-being;
5. Acknowledging that defenders are interconnected. Protection initiatives should not focus on the rights and security of individual defenders alone, but also include the groups, organizations, communities and family members who share their risks;
6. Involving defenders in the development, choice, implementation and evaluation of strategies and tactics for their protection. The participation of environmental defenders is a key factor in their security;
7. And ensuring that protection measures are flexible, adaptable and tailored to the specific needs and circumstances of defenders.
First, Mr. Forst said that he intends to ensure that the voices of environmental defenders contribute to the shaping and guiding of this mandate. If he finds the funds, he will organize a series of regional consultations with environmental defender, and will then incorporate the results of these consultations into his work to continue to refine the mandate’s core priorities, scope and methods of work. Secondly, he intends to carry out the mandate in the most comprehensive, forward-looking and efficient manner possible to make it as comprehensive and useful as possible for the larger number of environmental defenders.
The first event Michel Forst will conduct is a series of regional consultations with environmental defenders in the Aarhus region to ensure that their voices contribute to the shaping of this mandate. An effective protection mechanism cannot be developed without meaningful consultation with those it seeks to protect. To do this, he will invite environmental defenders to a series of consultations – in Central Asia, in Eastern and South-Eastern Europe and the Caucasus, as well as in the European Union and Western Europe – to listen to their testimonies, hear stories about their situation and understand their expectations regarding the mandate. The aim will be to identify key trends, threats, protection needs and best practices, and to determine the availability and effectiveness of laws, policies and programs to protect and enforce them. The results of these consultations will be used as a basis for his work and will be presented to the Parties in a report. Another priority in establishing this new mandate is to inform the largest possible audience as possible of its existence and its functioning, in order to encourage any person who needs protection, or who may know someone who needs protection, to ask for it.
Human rights and environmental organizations should try to create coalitions or communities of environmentalists. This will be one of the priorities of the mandate. It will involve constant awareness raising regarding the Aarhus Convention, the obligations of the Parties under Article 3 (8) and the role of the Rapid Response Mechanism in ensuring protection of environmental defenders, which is the main mission of the mandate. Mr. Forst emphasized that stronger ties are needed to bridge the gap between environmental defenders and human rights protection mechanisms, and to join forces and share information, experiences and practices, particularly on protection strategies that are important to environmental defenders.
As noted by the UN Special Rapporteur on Human Rights Defenders, those who do not call themselves defenders are even more vulnerable to threats, as they often do not know about their rights or the mechanisms that exist to protect them. That is why promoting a broad definition of environmental defenders and carrying-out awareness raising and capacity-building activities to reach even those who do not identify themselves as environmental defenders will be an important component of his work. Given the growing mobilization of young people on environmental issues in Europe and in the Aarhus region as a whole, special attention will be paid to informing and supporting protection of young activists through the work of the mandate. Another important component of this mandate, which Mr. Forst intends to use, is its extraterritorial scope, which provides the potential to protect not only environmental defenders of the Aarhus region, but also defenders from Africa, Asia, the Pacific region, the Americas and UNECE countries that are not parties to the Convention. Indeed, in addition to ensuring that the mandate covers all Aarhus Convention countries where a response is required, the Rapid Response Mechanism will also address complaints of alleged penalisation, persecution and harassment of environmental defenders outside the Aarhus region, in cases where the threats and risks they face are related to the activities of international companies in coutries that are a Party to the Aarhus Convention. This means, for example, that the Special Rapporteur can act after receiving a complaint from a person who is threatened by the activities of a multinational company in Latin America, Africa or Asia, if this company has its headquarters in a State that is a Party to the Aarhus Convention.
The primary purpose of the Special Rapporteur’s mandate is to provide a rapid protection response to environmental defenders at risk, and Mr. Forst will use all the means at his disposal to do so: this will include an accessible process of submitting complaints; taking protective measures, including relocation if necessary; use of diplomatic channels and ensuring a thorough follow-up of actions taken; raising public awareness through public statements and press releases; ensuring enhanced cooperation with other regional and international protection mechanisms; attending trials of environmental defenders in courts as an observer; orienting environmental defenders towards essential protection resources beyond the mandate’s scope.
As complaints are the main tools at the disposal of environmental defenders to request protection, the Special Rapporteur will pay particular attention to the development of the process of submitting complaints to make it as accessible as possible. This means, for example, that the eligibility criteria will be flexible and the form will be concise.
Mr. Forst emphasized three important points that directly draw from the decision that established the mandate and that are a promising avenue in making complaints a powerful protection tool.
• First, the allegations made in a complaint may relate to either public or private actors and may arise not only from their acts, but also from their omissions.
• The second point is that complaints can be submitted “by any member of the public either on their own behalf or on behalf of another member of the public”.
• And the third point is that in order to submit a complaint, complainants are not required to exhaust domestic remedies.
During the previous consultations, attention was drawn to the fact that the lack of information on the processing of complaints was one of the main issues that discouraged defenders. To avoid this pitfall and to encourage environmental defenders to seek support from the mandate, a system of formal acknowledgment of receipt of a complaint, as well as timely and ongoing follow-up with complainants, has been introduced. Complaints will be investigated in various ways: the UN field presence will be an asset to confirm allegations; other means will include media reports, documentation and reports from civil society and other human rights bodies or protection mechanisms; and any other means deemed necessary on a case-by-case basis.
When processing a complaint, the mandate of the Special Rapporteur will be able to issue two kinds of protection measures to the Party concerned:
• immediate protection measures that rely on a precautionary approach and enable the Special Rapporteur to act urgently until the investigation on a complaint is completed.
• or ongoing protection measures, that are issued upon completion of the investigation into a complaint. Protection measures can be addressed to “any body of the executive branch” or “any public authority” of the Party.
Allegation letters and urgent appeals will be addressed to either the governments or companies concerned with an invitation to submit comments and observations. The allegation letters and responses will be made public on the Special Rapporteur’s website after a period of 60 days. Urgent appeals and allegation letters are among the most effective proteciton tools available to enforce the mandate.
The scope of the powers will not be limited to providing a rapid response to endangered environmental defenders, but will also aim at long-term protection. In addition to the various safeguards that the Special Rapporteur will employ, his work will also focus on ensuring a safe and conducive environment for their work. This will include promoting positive narratives about environmental defender; strengthening their legal recognition and protection; protection of civil space and fundamental freedoms; promoting accountability for reprisals against environmental defenders. Narratives that link public participation and civil disobedience to serious and illegal acts such as terrorism pose a threat not only to the safety of environmental defenders, but also to democratic values. Unfortunately, such narratives are on the rise, and sometimes they are spread by public figures, most recently in France, when a minister called the mobilization of activists protesting against development of mega water basins “eco-terrorism”. Part of the work of the mandate to better protect environmental defenders will be to promote the development, strengthening and dissemination of a narrative to raise awareness among the general public about how mobilization of environmental defenders against projects that harm the environment and human health has a positive impact on human rights of all. The Special Rapporteur aims to work with various stakeholders to develop this positive narrative with clear and strong wording, focusing particularly on countering the idea that environmental defenders are opponents to human development, and spreading it beyond the environmental community.
If we talk about the legal sphere, the work of the mandate to ensure a safe and enabling environment for environmental defenders will consist of the following key components:
The first component will be to support the development and enactment of specific national laws and policies to protect environmental defenders and human rights defenders in general. Mr. Michel Forst intends to work on evaluating and enhancing the effectiveness of recently enacted and existing laws, mechanisms, as well as providing expert technical and advisory services to States contemplating such legislation, focusing on the particular situation of environmental defenders.
The protection of civil space and fundamental freedoms is the second key component of the mandate’s work to ensure a safe and enabling environment for environmental defenders. A recent report of the Commissioner for Human Rights of the Council of Europe showed that in many Council of Europe member states, most of which are Parties to the Aarhus Convention, protest movements related to the protection of the environment are subjected to “constant and disproportionate criminalization”. For example, several climate activists in Italy were recently issued with “fogli di via”, a measure that bans them from the city of Turin, for participating in a peaceful protest in the city. In addition to these restrictions on fundamental freedoms across the region, defenders are also forced to operate under increasingly harsh conditions with a range of laws being used to restrict the activities of civil society organizations. These include, for example, anti-terrorism laws or legislation that imposes disproportionate restrictions on NGO registration or funding. Beyond the direct impact on environmental defenders, restrictive legal frameworks and restrictions on fundamental freedoms create fear of being arrested or prosecuted for exercising these rights, which has a long-term chilling effect on public participation. The work of the mandate will include supporting the protection of civil space and fundamental freedoms in cooperation with other national, regional and international bodies (e.g. national human rights institutions, the Special Rapporteur on freedom to peaceful assembly and of association, etc.).
The next key component of the mandate’s work on ensuring a safe and enabling environment for defenders will focus on countering the growing use of strategic litigation against public participation.
The final component of the mandate’s work on ensuring a safe and enabling environment will be to facilitate prompt and independent investigations into reprisals against environmental defenders. He recalled that in 2013, the UN Human Rights Council adopted Resolution 24/24 on the creation of a special mechanism to address allegations of reprisals against individuals and groups. Therefore, any such allegations of reprisals will be immediately forwarded to the UN Assistant Secretary-General for Human Rights in New York.
Mr. Michel Forst emphasized that, faced with the increasing violence against environmental defender, he is convinced that this new mandate has a vital mission to fulfill. He hopes that in the coming months he will be able to demonstrate the usefulness of this important new mechanism to protect those whose lives are at risk as they stand guard to protect our environment, and to ensure that they can exercise their rights granted them by the Convention without fear.
After all, the public has high hopes for the work of Mr. Michel Forst, as the establishment of a rapid response procedure is a unique and promising step. The launch of the Special Rapporteur marks an important step in advancing practical measures to uphold the universal right to a clean, healthy and sustainable environment.
