1 00:00:10,470 --> 00:00:17,340 Well, good afternoon, everybody, and welcome to this keynote address at the end of the conference. 2 00:00:17,340 --> 00:00:23,010 And for those of you who haven't yet met, I'm Kato Regan, the director of the Vonovia Institute. 3 00:00:23,010 --> 00:00:27,750 And although this is not the time to be welcoming you, I nevertheless want to welcome you. 4 00:00:27,750 --> 00:00:34,530 It's been a wonderful two days. I know I've attended quite a few of the sessions, but not been able to be at all of them. 5 00:00:34,530 --> 00:00:35,670 And all of them, I think, 6 00:00:35,670 --> 00:00:43,860 have been extraordinary accounts of work being done on human rights related issues in transnational human rights abuses from all over the world. 7 00:00:43,860 --> 00:00:50,250 And so thank you to all of you, put so much effort into your presentations and for coming and presenting them here. 8 00:00:50,250 --> 00:00:54,780 And I hope people have had an opportunity to meet and talk to people that they hadn't met before, 9 00:00:54,780 --> 00:00:59,220 which is or is one of the best things about an event like this. 10 00:00:59,220 --> 00:01:05,430 So I'm particularly delighted to welcome our keynote speaker and the respondent. 11 00:01:05,430 --> 00:01:10,260 Both of them and I say to both of them that we've done a very wants to boast about the fact that they're 12 00:01:10,260 --> 00:01:15,810 both members of our advisory council and we will be having our advisory council meeting tomorrow. 13 00:01:15,810 --> 00:01:18,960 And in the audience, there are several other members of our advisory council. 14 00:01:18,960 --> 00:01:26,430 I can see Rodrigo Primly and Chris Stone and Helena Kennedy, who is the founding fellow of the Bonner Vera Institute, 15 00:01:26,430 --> 00:01:30,180 who without her energy and vision, we would not be here at all. 16 00:01:30,180 --> 00:01:36,450 So always a great welcome to Helena when she when she visits us. 17 00:01:36,450 --> 00:01:44,250 And in this address, we are going to think about the possibilities of using litigation to prevent human rights abuses, 18 00:01:44,250 --> 00:01:47,910 which I think is really an unusual way of thinking. 19 00:01:47,910 --> 00:01:54,090 Many people always say the problem with litigation that comes after, so we're looking very much forward to what you have to say. 20 00:01:54,090 --> 00:02:01,950 Alejandro and Alejandro and Chaytor is, as you all know, the founder and executive director of the Mexico City based Pro Desk, 21 00:02:01,950 --> 00:02:15,520 and we're very much look forward to hearing what you have to say. Thank you. 22 00:02:15,520 --> 00:02:31,000 Well, good afternoon, thank you, everybody, to for coming on or staying after two or four days of a very interesting but also very long conference. 23 00:02:31,000 --> 00:02:35,680 My name is Sally Hambantota. I am a human rights lawyer. 24 00:02:35,680 --> 00:02:44,140 I have a round of 20 years now working on the defence of human rights in Mexico, 25 00:02:44,140 --> 00:02:55,030 and I am also the founder and the executive director of a Mexican organisation called The Project of Economic, Social and Cultural Rights Privacy. 26 00:02:55,030 --> 00:03:01,390 And we are principally dedicated to the defence of rights to the land territory 27 00:03:01,390 --> 00:03:07,360 and natural resources of agrarian communities and also indigenous communities. 28 00:03:07,360 --> 00:03:12,400 And we also work for the defence of legal rights, 29 00:03:12,400 --> 00:03:25,100 particularly the rights of freedom of association and collective bargaining with some unions, but principally with collective of workers. 30 00:03:25,100 --> 00:03:35,300 We have an integral defence methodology that includes strategic litigation, organising the strategies, corporate research, 31 00:03:35,300 --> 00:03:44,170 political communication and advocacy of strategies at the national, regional and international level. 32 00:03:44,170 --> 00:03:51,020 And I have to say that I am a little a little bit intimidated because it is August 4th. 33 00:03:51,020 --> 00:04:03,470 No, of course. And because am because all my colleagues that are present here are amazing human rights lawyers, 34 00:04:03,470 --> 00:04:12,220 also amazing academics that had been doing this work for for several years and is some. 35 00:04:12,220 --> 00:04:16,790 You really sent some of my colleagues from Latin America. 36 00:04:16,790 --> 00:04:28,040 They they had been a present in the history of of their own country and also having an impact very 37 00:04:28,040 --> 00:04:36,500 important for the history of democracy and dignity in solo in not only in Argentina or Colombia, 38 00:04:36,500 --> 00:04:41,960 but I think for for the entire continent. So for me, it's an honour being here, 39 00:04:41,960 --> 00:04:54,800 just sharing some of my my analysis and my thinking and also trying to to answer the question that is set for these. 40 00:04:54,800 --> 00:05:08,890 This presentation, which is how effective can how effective can be litigation for preventing human rights violations? 41 00:05:08,890 --> 00:05:23,700 And I would like to start saying that the all the interesting discussions held here in the past two days AM have mentioned 42 00:05:23,700 --> 00:05:34,580 it principally the obstacles and the challenges for achieving justice on the framework of business and human rights. 43 00:05:34,580 --> 00:05:39,830 And im a huge part of the work. 44 00:05:39,830 --> 00:05:49,400 This is, of course, identifying the the barriers and the obstacles seen in defending human rights and defending 45 00:05:49,400 --> 00:05:57,500 cases where the right to land territory and natural resources are being affected, 46 00:05:57,500 --> 00:06:06,740 principally for the lack of protection of the government in Mexico and also for the participation of national 47 00:06:06,740 --> 00:06:15,650 corporations in what the Mexican government and other governments called the the model of development. 48 00:06:15,650 --> 00:06:27,470 And that is something that I wanted to bring here, because the analysis about the obstacles and the challenge of the law in our experience 49 00:06:27,470 --> 00:06:37,640 have to be link to the analysis of what is happening with the the current economic model, 50 00:06:37,640 --> 00:06:45,200 a the the law and the different legal systems that are being set around the world. 51 00:06:45,200 --> 00:06:55,040 We all know a is is are working principally for maintaining the status quo and the economic model, 52 00:06:55,040 --> 00:07:05,570 and there is demonstrating that is not any longer a working and we have different kind of crisis. 53 00:07:05,570 --> 00:07:18,710 I have, I can say in Mexico now and probably in other countries in Latin America, we are facing a huge crisis of violence in Mexico. 54 00:07:18,710 --> 00:07:27,260 We have around a 43000 of people that have been disappeared in less than 10 years. 55 00:07:27,260 --> 00:07:38,760 The violence against women and these horrible crime that is called the feminist side is happening every day, every day. 56 00:07:38,760 --> 00:07:50,040 Nine women are being killed in Mexico only for the fact of being women with extreme violence every day in Mexico, that is happening. 57 00:07:50,040 --> 00:07:56,720 Another reality that is happening in Mexico is that. 58 00:07:56,720 --> 00:08:05,630 Only 11 families are the ones who have the 30 percent of the GDP. 59 00:08:05,630 --> 00:08:16,280 Only 11 families and those families are the ones who are defining not only the economic future of the country, 60 00:08:16,280 --> 00:08:26,470 but also the the law reforms that have to happen in order to maintain the status quo. 61 00:08:26,470 --> 00:08:33,080 The mainstream is to this globalisation tend to focus on the global north. 62 00:08:33,080 --> 00:08:41,500 States, governments and the actions that they take on countries from the global south. 63 00:08:41,500 --> 00:08:52,360 However, in this global economy has another important stakeholder, which is the transnational corporations. 64 00:08:52,360 --> 00:09:00,070 In the current model, these corporations have all the incentives to maximise their profits. 65 00:09:00,070 --> 00:09:10,960 And they argue that someday under the trickle trickle down effect, profits will be distributed amongst the rest of the population. 66 00:09:10,960 --> 00:09:20,260 It is no doubt that the tensions between the so so-called one percent and the rest of the population are growing everywhere. 67 00:09:20,260 --> 00:09:28,570 As I was saying in Mexico is a very good example, but it's happening also in the United States and other countries. 68 00:09:28,570 --> 00:09:35,230 Inequality is becoming a big problem in countries of the global north as well, 69 00:09:35,230 --> 00:09:47,530 and it might be a source for discomfort that leads to the rise of nationalism, alt right governments undermining democratic institutions. 70 00:09:47,530 --> 00:09:54,100 However, the situation the situation is far worse in the global south. 71 00:09:54,100 --> 00:10:03,490 According to the narrative of the US national companies and the states that support their model of development, 72 00:10:03,490 --> 00:10:10,240 the embarrassment of the investment from national companies in the global south countries will 73 00:10:10,240 --> 00:10:16,330 mean better living and working conditions for the rest of the population in these countries. 74 00:10:16,330 --> 00:10:25,560 Mexico is one of the countries with the most free free trade agreements, trade agreements signed, and it has 15. 75 00:10:25,560 --> 00:10:36,550 It has the 15 biggest GDP in the world, however, and after fully embracing neoliberalism in the 1980s, 76 00:10:36,550 --> 00:10:43,210 poverty rate in Mexico is more than 50 percent and it is now. 77 00:10:43,210 --> 00:10:55,300 It is now proven that women and indigenous people have a pretty, pretty difficult way to escape this the so-called cycle of poverty. 78 00:10:55,300 --> 00:10:59,440 It is more in in its more than 13 years at risk. 79 00:10:59,440 --> 00:11:04,750 We have seen some of the effects goes by transnational corporations. 80 00:11:04,750 --> 00:11:13,480 The inequality in the power relationships between workers and corporations is growing at an alarming rate. 81 00:11:13,480 --> 00:11:26,770 Corporations are forcing workers to work more hours, and they are pushing the state to good retirement funds and to make labour models more flexible. 82 00:11:26,770 --> 00:11:38,980 Those national employers have designed a very efficient mechanism that dilute their responsibilities regarding human and labour rights, 83 00:11:38,980 --> 00:11:44,500 with the possibility offered by the global economy of relocating most of the 84 00:11:44,500 --> 00:11:51,820 industries and with labour policies that promotes practises such as outsourcing, 85 00:11:51,820 --> 00:12:03,800 which promotes the creation of human supply chains. Big corporations often avoid the responsibilities regarding labour rights across their supply, 86 00:12:03,800 --> 00:12:09,260 their supply chains and even inside their own companies. 87 00:12:09,260 --> 00:12:18,800 Furthermore, unions are losing its power to effectively defend labour human rights and in the case of Mexico. 88 00:12:18,800 --> 00:12:25,910 Unions had been used extensively by corporations to to protect their own interests. 89 00:12:25,910 --> 00:12:36,620 Transnational corporations are now in disparate need of land and raw materials to continue to continue the escalation of the industrial model, 90 00:12:36,620 --> 00:12:46,100 and no part of the world is now safe from these predatory activities or from its dire consequences. 91 00:12:46,100 --> 00:12:52,400 Communities see their land and territory threatened by corporations. 92 00:12:52,400 --> 00:12:57,470 These corporations are growing smarter by the day. 93 00:12:57,470 --> 00:13:08,720 They now know that the law is one tool to get away with their goals, but not the only one they can use. 94 00:13:08,720 --> 00:13:14,630 They also bribe local leaderships to support the projects. 95 00:13:14,630 --> 00:13:23,030 They consensually divided communities, and they accuse human rights defenders of being anti-development. 96 00:13:23,030 --> 00:13:34,760 In some cases, also corporations allied with local organise in cartels, drug drug cartels and unfortunately, 97 00:13:34,760 --> 00:13:45,020 human rights defenders are more there, and it is more and more complicated to find who is the guilty of these murders. 98 00:13:45,020 --> 00:13:54,590 In the case of Mexico, some of these communities have been fighting for their land and territory for generations and generations. 99 00:13:54,590 --> 00:13:59,560 They fought against the colonial time. 100 00:13:59,560 --> 00:14:08,680 Then a 19th century Mexican liberals, liberals and then the 20th century authoritarian regime. 101 00:14:08,680 --> 00:14:17,680 Unfortunately, the number of communities that succumb for the 20th century, capitalism and globalisation are on the rise. 102 00:14:17,680 --> 00:14:27,010 We are now seeing the forced displacement displacement of these communities to pave the way for extractive mega-projects. 103 00:14:27,010 --> 00:14:34,330 And this is being explained as mere migration from the rural areas to the cities. 104 00:14:34,330 --> 00:14:42,130 Therefore, companies now accumulating through this position are taken away from communities and individual, 105 00:14:42,130 --> 00:14:49,610 not individuals, not only their land and their workforce, but also their dignity. 106 00:14:49,610 --> 00:14:58,670 I believe we must fight back by building what we call as basis of hope, as we call them at risk. 107 00:14:58,670 --> 00:15:05,660 But how can we build them? How can we prevent the human rights violations? 108 00:15:05,660 --> 00:15:09,410 In the case of the of the defence of land and territory, 109 00:15:09,410 --> 00:15:20,450 this has been developing an approach which we know we now we now call a strategic prevent preventively litigation. 110 00:15:20,450 --> 00:15:29,540 One of the issues we encounter was that the defence of human rights often takes a reactive approach. 111 00:15:29,540 --> 00:15:34,640 In the case of the defence of land and territory, for example, 112 00:15:34,640 --> 00:15:43,070 a mine is unlawfully built and then the community files a complaint asking for the mind to withdraw. 113 00:15:43,070 --> 00:15:47,930 This seems logical in theory, but in countries like Mexico, 114 00:15:47,930 --> 00:15:58,340 it often leads to the perpetuation of the human rights violations and the impunity of the transnational companies. 115 00:15:58,340 --> 00:16:07,400 The justice system is very slow, and that gives time to the companies to continue extracting valuable resources, 116 00:16:07,400 --> 00:16:17,330 damaging land and territory and maximising their profits, while at the same time communities see their rights violated. 117 00:16:17,330 --> 00:16:20,180 Even when there is a decision from the court, 118 00:16:20,180 --> 00:16:29,180 judges often write a ruling taking into consideration the consequences it will have on the company in their 119 00:16:29,180 --> 00:16:38,210 reasoning or their in a mega project to create operations means unemployment and millions of dollars 120 00:16:38,210 --> 00:16:45,050 in revenue and investments lost no matter the ecological damage or the rights of the communities to have 121 00:16:45,050 --> 00:16:53,570 a fair say on the use of their land and territory that is ruling out based on human rights perspective. 122 00:16:53,570 --> 00:17:02,960 And they save safeguard the corporations interests these demoralised communities and further encourage transnational 123 00:17:02,960 --> 00:17:14,300 companies to continue with a strategy of acting first and then asking for permission for this game out came up with. 124 00:17:14,300 --> 00:17:23,510 It's a strategic preventive litigation approach by supporting the community of Union Hidalgo in the state of Oaxaca. 125 00:17:23,510 --> 00:17:34,670 The community reach out to protest for help against a wind farm from the company Pemex, which is part of the Spaniard company Renault Value. 126 00:17:34,670 --> 00:17:43,250 This wind farm was built following a series of human rights violation of USIS and unlawful activities. 127 00:17:43,250 --> 00:17:52,820 The company promised great benefits for the community, but they remain to be seen its disadvantage. 128 00:17:52,820 --> 00:17:54,890 On the other hand, are visible. 129 00:17:54,890 --> 00:18:05,810 Wind turbines are contaminating the soil and generating noise pollution, and the wind parks have de facto stopped the expansion of the community. 130 00:18:05,810 --> 00:18:14,210 The three, the free transit of people through the communal lands and the use of land for agriculture and for grazing province, 131 00:18:14,210 --> 00:18:22,430 started the defence of the community rights to land and territory and demonstrate the illegalities that led to the construction of the park. 132 00:18:22,430 --> 00:18:31,370 However, the company doubled down on its strategy and managed to build a second park in 2017. 133 00:18:31,370 --> 00:18:35,930 Unfortunately, the damage to the community had already been done. 134 00:18:35,930 --> 00:18:38,810 The community of Union Hidalgo is located in the. 135 00:18:38,810 --> 00:18:46,910 It's more of the one to pick a region that has always been followed her political importance for Mexico. 136 00:18:46,910 --> 00:18:55,550 It's here, it is here. Logical characteristics make the region ideal for the construction of wind parks in this hat. 137 00:18:55,550 --> 00:18:59,810 Attract has attracted national investors to the area. 138 00:18:59,810 --> 00:19:09,890 With this in mind, province and the community realised that it wasn't a matter of whether new wind parks were going to be built in unit algo, 139 00:19:09,890 --> 00:19:18,110 but rather a matter of time and detecting when they were going to be built. 140 00:19:18,110 --> 00:19:23,930 For that reason for this. Started working in the community through a preventive approach. 141 00:19:23,930 --> 00:19:35,570 A collective subject was strengthening the communal agrarian institution, where re-establish and communities leadership were enhanced. 142 00:19:35,570 --> 00:19:48,920 In 2016, the company Electricity, the France EDF announced its intentions to build a wind farm in the community of Hidalgo and in 2017, promoters of. 143 00:19:48,920 --> 00:19:57,770 I arrived at the community to emphasise the supposed benefits these new wind farm will have for the community. 144 00:19:57,770 --> 00:20:06,080 This new wind farm will completely surround the community and with this situation for this decided to 145 00:20:06,080 --> 00:20:14,420 intensify its work in the community and travel extensively to get as much information as possible previously. 146 00:20:14,420 --> 00:20:25,190 Also, a compromise to the alternative use of law as mean to tackle these five structural problems in this case. 147 00:20:25,190 --> 00:20:28,310 And as part of the judicial strategy, 148 00:20:28,310 --> 00:20:39,710 the first one is the lack of access to information previously filed dozens of public information request to learn more about the project. 149 00:20:39,710 --> 00:20:48,350 Furthermore, police file a complaint to court with the sole purpose of getting new information of report of the project permits, 150 00:20:48,350 --> 00:20:53,210 environment permits, environment evaluations, amongst others. 151 00:20:53,210 --> 00:21:01,400 This, in turn, led to the exact name of the company that wanted to build a wind farm, as well as the name of the project. 152 00:21:01,400 --> 00:21:08,720 The second was the lack of effective participation of the community in the decision making process. 153 00:21:08,720 --> 00:21:15,500 Provis carry out an extensive advocacy campaign with national and national stakeholders. 154 00:21:15,500 --> 00:21:23,030 The community finally had the chance to speak with authorities to explain its situation and process, manage, 155 00:21:23,030 --> 00:21:31,040 manage to involve other organisations such as the UN High Commissioner for Human Rights to study the case. 156 00:21:31,040 --> 00:21:39,710 The fatal one was lack of effective access to justice process gain time by feeling complaints in different courts, 157 00:21:39,710 --> 00:21:44,570 with the goal of further strengthening the community to fight back. 158 00:21:44,570 --> 00:21:52,250 However, I have to say Mother Nature had its say as well. 159 00:21:52,250 --> 00:22:01,880 The whole region was deeply affected by an earthquake you probably remember in September of 2017, 160 00:22:01,880 --> 00:22:09,020 and damages were best and the major and the major spoilers partially collapse. 161 00:22:09,020 --> 00:22:14,510 This didn't stop, of course, the government and the company in their attempt to build a park, 162 00:22:14,510 --> 00:22:18,500 and they tried to go ahead with a so-called indigenous consultation. 163 00:22:18,500 --> 00:22:30,170 Even when the community was literally just taking their dead family from from the damages, that was terrible. 164 00:22:30,170 --> 00:22:42,380 I have to say brothers and the community demanded the consultation be stopped to care for the situation and that work for some months. 165 00:22:42,380 --> 00:22:49,370 In April 2018, the consultation process begun again and protests resorted to people who were born in the 166 00:22:49,370 --> 00:22:55,940 community but were living in different places to file complaints in their places of residence. 167 00:22:55,940 --> 00:23:07,250 This allowed for this to avoid a local court, particularly aligned with the corporations interests, and the indigenous consultation was stopped. 168 00:23:07,250 --> 00:23:18,200 This was a landmark decision in Mexico, since they recognise that a consultation could be legally challenged in court while being implemented. 169 00:23:18,200 --> 00:23:29,120 Therefore, not having to wait after its conclusion. The fourth reason was the asymmetrical power relations between the community and the public and 170 00:23:29,120 --> 00:23:37,220 private stakeholders in favour of the wind farms process understood that the best way to return power 171 00:23:37,220 --> 00:23:45,170 to the community was to make a peaceable the situation and the human rights violations committed by 172 00:23:45,170 --> 00:23:51,360 the company and the public authorities who were supposed to look after the community's interests. 173 00:23:51,360 --> 00:23:58,250 For this, can the community file a complaint at the national contact point in France? 174 00:23:58,250 --> 00:24:06,740 This national contact point have the role of suggesting corporate actions align with the O.C.D. guidelines for multinational enterprises, 175 00:24:06,740 --> 00:24:12,590 and most of the times they must be filed in the country where the human rights violation of Mexico. 176 00:24:12,590 --> 00:24:15,170 In this case, however, 177 00:24:15,170 --> 00:24:23,330 after a previous experience with the Mexican branch made clear that they were interesting in defending the corporations interests 178 00:24:23,330 --> 00:24:32,430 and for this managed to get the complaint filed in the national contact point in France to one of the audience or hearings. 179 00:24:32,430 --> 00:24:40,460 A woman leader from the community travelled to France to deal to tell firsthand 180 00:24:40,460 --> 00:24:46,054 the violations that were occurring in company of lawyers with poor desk.