Amid the pandemic, six Indigenous villagers, including Kinipan community leader Effendi Buhing, and two Indigenous youth, were arrested by the Central Kalimantan Police, in Indonesia, for defending their customary forest against the expansion of PT Sawit Mandiri Lestari (PT SML), a palm oil company. Buhing was arrested on August 26, while the other five were arrested on August 15.

All of them were released, but are now facing criminal charges for the alleged theft of chainsaw owned by the palm oil company. This chainsaw was confiscated by the villagers to stop the PT SML from further destroying their customary forest.

Indigenous Peoples Rights International (IPRI) and Aliansi Masyarakat Adat Nusantara – AMAN (National Alliance of Indigenous Peoples of the Archipelago – Indonesia) strongly condemn these recent arrests and criminalization of the Kinipan villagers, which violates their internationally recognized right to their lands, territories, and resources.

The unwarranted act by the police was in retaliation to the protest actions and growing resistance of Kinipan villagers against the forcible eviction from their lands by palm oil company.

In response to the encroachment of PT SML into Laman Kinipan customary territories, the community registered their customary territories to the Customary Territory Registration Agency in March 2017. A certificate for the land was also given to the Laman Kinipan Indigenous Peoples community on July 27, 2017. 

According to AMAN, the Laman Kinipan community found out that their forest was being taken over by PT SML in April 2018. Consequently, the community imposed customary sanctions against the company after it destroyed their customary territory, and filed complaints to the Ministry of Environment and Forestry, National Human Rights Institution Komnas HAM, and the Office of the Presidential Staff (KSP).

The complaints of the Laman Kinipan people are yet to be acted upon. However, when PT SML filed unwarranted charges of theft against Indigenous leader Buhing and the other five villagers, the police were quick to make the arrest and file the charges.

The arrest of Kinipan Community Leader Buhing clearly shows the double standards of the police forces. The arrest is used as a tactic to criminalize legitimate dissent so as to push for the illegal operations of PT SML into Laman Kinipan Indigenous Peoples customary lands. This tactic is being used globally to silence Indigenous Peoples in the face of the onslaught against their rights.

Even during Covid-19 pandemic, several Indigenous Peoples communities have become targets of criminalization and violence to give way to the operations of large-scale projects involving agribusiness and extractive industries.

If PT SML will have its way, 190, 000 hectares of forest will be lost; thereby reducing one of the biggest rain forests in Southeast Asia and causing severe damage to climate, biosphere, and ecosystem.

Laman Kinipan Indigenous Peoples have long been protecting their forest and environment from total destruction, yet they constantly face threats and violence, arrests and detentions, and criminalization for defending their lands, forests, and territories.

We call on President Joko Widodo, the Minsitry of Environment and Forestry, Ministry of Agrarian and Spatial Planning, the Indonesian Parliament, and the Indonesian Police:

• To drop the trumped-up charges against Kinipan community leader Effendi Buhing and the other five villagers, and to ensure their safety against any further attacks;
• For the police and the PT SML to stop  the criminalization of Indigenous peoples for their legitimate actions to protect their right to their customary forest;
• For the Ministry of Environment and Forestry to revoke Decree on Forest Release for PT SML;
• For the Ministry of Agrarian and Spatial Planning to revoke the concession of PT. SML in Laman Kinipan’s territory;
• For the immediate and proper implementation of the Constitutional Court decision number 35/2012 to recognize customary territory in accordance with the provisions of the 1945 Constitution; and
• For  the Indonesian Parliament to enact the law on the rights of Indigenous Peoples to ensure the full implementation of the provisions contained  in the 1945 Constitution and the  the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

If you are interested to be a signatory, please sign on this petition or send your FULL NAME, TITLE/POSITION, and ORGANIZATION/AFFILIATION to [email protected] or [email protected].

You can sign on as an organization or as an individual, please indicate which options you are amenable to. Sign ons will close on September 15, 2020 at 16:00 (GMT +7), 05:00 (EST), 02:00 (PST), 17:00 (GMT +8).

NOTE: You are not required to donate to this petition.

(Photo credit: Laman Kinipan Community)

Source

The automotive industry is driving growing demand for nickel, critical for batteries, despite the pollution that production can cause.

As Tesla shares continued their stellar rise last month, a group representing indigenous communities in Russia sent a letter to Elon Musk.

“We are respectfully requesting that you DO NOT BUY nickel, copper and other products from the Russian mining company Nornickel,” they told the billionaire boss of the electric carmaker.

Citing the huge diesel spill from a Nornickel plant that turned Siberian rivers crimson this summer, they alleged that the world’s leading high-grade nickel producer was “a global leader in environmental pollution” and urged Tesla to rule out buying from the miner until it cleaned up its act.

The letter came in response to a striking plea that Mr Musk had made to mining companies weeks earlier. “Wherever you are in the world, please mine more nickel,” he said. “Tesla will give you a giant contract for a long period of time if you mine nickel efficiently and in an environmentally sensitive way.”

While concerns over child labour and corruption in mining cobalt for electric vehicle batteries are well-documented, Mr Musk’s comments have focused attention on the less-scrutinised market for nickel. The metal is every bit as critical for batteries — and presents its own concerns for ethically minded electric vehicle buyers.

Nickel is used in most lithium-ion batteries; it helps to provide higher energy density and to improve storage capacity. Today, batteries account for only about 7 per cent, or 150,000 tonnes a year, of global nickel demand, according to Wood Mackenzie; most nickel is still used to make stainless steel. However, the energy and mining consultancy expects battery demand to increase to 650,000 tonnes by 2030, helping to drive total nickel demand to 3.2 million tonnes a year, from 2.3 million tonnes at present.

Andrew Mitchell, head of nickel research at Wood Mackenzie, argues that the market is in fact oversupplied now and he does not “see a particular squeeze on the availability of materials” to meet growing demand. However, “if you then start to want to look at the ESG [ethical, social and governance] issues around your nickel, then that might start to pose you problems”.

Nornickel could increase its production of battery-grade nickel in Russia substantially, but doing so would depend on it first securing long-term contracts with customers.

As for Nornickel’s own environmental record, Andrey Bougrov, head of environmental protection at the miner — which is facing a $2 billion fine over the diesel spill — said that the clean-up campaign was “in full swing”. He insisted that the company was “committed to environmentally sensitive production of metals”, was investing large sums in reducing hazardous emissions, but was “dealing with factories built in the Soviet times when architects largely ignored environmental aspects of the production”.

For environmental groups, it is paramount that such concerns are addressed. “The clean energy transition cannot be underpinned by dirty mining. It’s sort of its Achilles’ heel,” Payal Sampat, mining programme director at Earthworks, said.

Sorce

OZERPAKH, Russia — A row of stakes hundreds of feet long pokes out of the endless estuary of the Amur River on Russia’s Pacific coast, resembling the naked spine of a giant fish.

It is a piece of commercial fishing infrastructure reminding the people who still live here that nature’s wealth — in this case, millions of chum and pink salmon — belongs to the well-connected few.

“It’s as though they must exterminate these riches, mercilessly,” says Galina Sladkovskaya, 65, waiting in vain for a fish to bite at a levee about 20 miles upstream. “They only need money and nothing else. They don’t have a human soul.”

Along the Amur, one of Asia’s great waterways, Russians feel cheated, lied to and ignored. The wild salmon fishery that they once took for granted is gone, they say, because Moscow granted large concessions to enterprises that strung enormous nets across the river’s mouth.

People’s anger over their depleted fish stock is so widespread that it has been a driving force behind the anti-Kremlin protests that have been shaking the Far Eastern city of Khabarovsk, on the Amur, since early July.

“This was a gesture of people desperate to be heard,” Daniil Yermilov, a Khabarovsk political consultant, said of the protests. “People wanted to live how they used to live, so that they can catch fish again.”

The story of the Amur’s vanishing salmon also sheds light more broadly on why President Vladimir V. Putin’s popular support has fallen close to the lowest point of his 20-year rule.

Russians’ turn away from Mr. Putin revolves less around abstract concepts of freedom and geopolitics than the concrete instances of poverty and injustice they see in their daily lives — and the feeling that the country’s elite neither knows nor cares about their struggles.

On a dirt road recently near the Amur’s mouth, a green truck splashed by before Leonid, a fisherman, whistled the all-clear. Two boys, his sons, hustled out of their hiding spot in the reeds, dragging a sack of glistening salmon.

“We’re being forced to become poachers,” he said, cursing and refusing to give his last name because he was in the process of breaking the law. “What is Putin thinking?”

Residents say there is virtually no way for them to legally catch enough to eat of what little fish remains, amid ever-tightening regulations on recreational and Indigenous fishing.

The boards tied to the roof of Leonid’s aging blue hatchback were meant to provide an alibi — he was just out collecting wood scraps. His rear windshield carried the slogan of the Khabarovsk region’s summertime political awakening: “I Am/We Are Sergei Furgal.”

Sergei I. Furgal, a former scrap-metal trader, ran for governor of the sprawling Khabarovsk region in 2018 and beat the incumbent, a Kremlin ally, in a rare upset. He gained popularity with populist moves unusual in Russia’s top-down system of governance: He cut his salary, improved school lunches and held frequent listening tours, skipping the tie and posting copiously to Instagram.

By then, the Amur’s fish crisis was already brewing. Federal authorities had granted expansive salmon fishing rights to companies that installed huge, stationary nets in the estuary and at the river’s mouth.

In the fall, the legions of migrating salmon used to make it hundreds of miles upriver to Khabarovsk, filling apartment refrigerators with smoked fish and cheap salmon roe — a New Year’s Eve staple that Russians call red caviar — sold by the kilogram.

The catch topped out at 64,000 metric tons in 2016 but then dropped precipitously, to 21,500 metric tons in 2018, the World Wildlife Federation says. And few salmon made it to Khabarovsk or the spawning grounds on the Amur’s tributaries.

“People here right now can’t catch enough to put on the table, while commercial fishermen reap huge profits,” Mr. Furgal said soon after taking office. “We’re going to try to change this state of affairs.”

He called for new limits on commercial fishing, some of which were implemented, but the salmon have remained scarce. Then, early last month, a SWAT team from Moscow pulled Mr. Furgal out of his black S.U.V. and spirited him onto the eight-hour flight back to the capital.

He was accused of masterminding murders some 15 years ago, but Khabarovsk residents saw a naked Kremlin attempt to remove a maverick governor more loyal to his constituents than to Mr. Putin. Two days later they spilled into the streets in the tens of thousands in the biggest protests Russia’s regions had seen since the fall of the Soviet Union.

The protests, now in their second month, are driven by regional pride, economic frustration and fatigue with Mr. Putin. But their animating emotion, dozens of interviews across the region showed, was a sense of injustice, as encapsulated by the fish crisis: Salmon had been part of life here for generations, and now Moscow had taken it away and offered nothing in return.

“Putin only thinks about war and about his pockets,” said Andrei Peters, 53, a small-business man in the impoverished village of Takhta on the lower Amur. “No one thinks about the people.”

In the struggling fishing village of a few hundred people with no regular internet or road connection to the outside world, someone had printed out black-and-white Furgal posters on regular sheets of paper and affixed them to the wooden electricity poles. With their now ex-governor behind bars, residents said they feared they had lost the one person in power who heard their concerns.

Indeed, the few officials in the region who agreed to interview requests in the wake of Mr. Furgal’s arrest either dismissed their constituents’ fish-related anger or redirected the blame away from the Kremlin. In the Indigenous community of Sikachi-Alyan, an hour’s drive outside Khabarovsk, the village head, Nina Druzhinina, explained that “America is at fault for all of our sins.”

“The C.I.A. has inserted its services everywhere, and its spy network is probably highly developed,” Ms. Druzhinina said. Commercial fishermen were able to exploit the Amur River, she said, because of post-Soviet Russia’s American-inspired legal code.

In the regional parliament, the speaker, Irina Zikunova, said that many Khabarovsk residents “are guided by impulse, are guided by emotions, are guided by feelings” rather than by facts. She rejected the notion — heard virtually universally in interviews with residents along the Amur — that officials in Moscow had shaped fishing regulations to the benefit of well-connected businesspeople.

“In reality, this is a made-up problem,” she said.

One of the Amur’s main fishing magnates, Aleksandr Pozdnyakov, is chauffeured around Khabarovsk in a black Mercedes Maybach. He acknowledged in an interview in his tastefully dark-toned office that the Amur fishery is in crisis. But he said the problem was overfishing by local residents who preferred to “pay nothing and do nothing while catching as much as they want.”

Mr. Furgal, the Khabarovsk governor arrested last month, made things worse, he said, speaking “as though he’s doing everything for the people” and telling the public they had a right to the salmon in the Amur.

“I’ll tell you one thing,” Mr. Pozdnyakov said of the tens of thousands protesting in support of Mr. Furgal, “I am confident that practically 99 percent of those going out are slackers who don’t want to do anything.”

Experts say there is truth to the notion that poaching by local residents is part of the problem. Olga Cheblukova, who coordinates the World Wildlife Fund’s Amur River studies, said the environmental group’s researchers have seen hundreds of dead salmon scattered near their spawning grounds, their bellies sliced open and their roe removed.

The fundamental issue, she said, is poor federal oversight that failed to detect a natural decline in the wild salmon population after the large catch in 2016. In the years that followed, regulators granted fishing quotas exceeding the actual migrating population, allowing runs of salmon to be virtually exterminated before they managed to reproduce.

In the fall of 2018, W.W.F. researchers counted an average of about 0.1 chum salmon per 1,000 square feet of river at their spawning grounds, compared to a norm of about 50.

To Khabarovsk residents, that failure of governance means more expensive fish — a parable for all of Russia, where official mismanagement and corruption often translates to bad roads, crumbling hospitals and polluted wilderness.

The protests in Khabarovsk show how easily public anger over those failures can now boil over — as it did for Evgeny Kamyshev, 32, a protester who blamed the Kremlin for the scarcity of salmon.

“The fish rots from the head,” he said.

Oleg Matsnev contributed research from Moscow.

At the outset, it should be noted that there are two key rights for indigenous peoples around the world. This is the right to ownership of ancestral lands and territories, and the right to self-government and independent decision-making about their own development. The significance of these rights is reflected in international normative documents.

On April 16, 1999, the Russian parliament adopted the federal law “On guarantees of the rights of the indigenous peoples of the Russian Federation”. Its name fully reflects the importance of this law. The Russian Federation recognizes that indigenous peoples have special rights and guarantees their observance.

I found the original version of this document, and tracked all the changes made since its adoption. In this article, I will highlight the most significant of these changes with my own comments.

I. The first edition of the law contained Article 4 as follows:

Article 4. Ensuring the rights of small peoples to socio-economic and cultural development

The state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation and local self-government bodies, in accordance with federal legislation and the legislation of the constituent entities of the Russian Federation, ensure the rights of indigenous peoples to a distinctive socio-economic and cultural development, protection of their original habitat, traditional way of life and management.

Organizations of all forms of ownership, public associations and individuals have the right to assist small peoples in the exercise of their rights to original socio-economic and cultural development in the manner determined by federal legislation and the legislation of the constituent entities of the Russian Federation.

This article is aimed at realizing one of the key rights of indigenous peoples – the right to self-government and independent decision-making about their own development. State authorities at all levels are charged with the responsibility to ensure this right of indigenous peoples. And organizations of all forms of ownership are endowed with the right to assist indigenous peoples in the exercise of their right to self-government and independent decision-making about their own development.

This article was declared invalid (completely canceled) in 2004.

II. Article 5. Powers of federal bodies of state power.

The bodies of state power of the Russian Federation in order to protect the primordial habitat, traditional way of life, economic activity and crafts of indigenous peoples have the right:

Clause 10)
To regulate, together with the state authorities of the constituent entities of the Russian Federation, the legal regime of possession, use and disposal of lands of traditional nature management and lands of historical and cultural purposes in places of residence of small peoples.

This rule allowed federal government bodies, together with regional government bodies, to establish the procedure for the ownership, use and disposal of lands significant for indigenous peoples in favor of indigenous peoples.

This clause was completely canceled in 2004.

Clause 12)
Establish the boundaries of lands of traditional nature use of small peoples and the procedure for granting these peoples for these purposes lands in federal ownership.

This rule, among other things, allowed the indigenous peoples to be granted lands in federal ownership. For the conduct of traditional nature management.

Canceled in 2007.

III. Article 6 conferred on regional public authorities the following, inter alia, rights:

Clause 1)
In accordance with the legislation of the Russian Federation, to adopt laws and other normative legal acts of the constituent entities of the Russian Federation on the protection of the original habitat, traditional way of life, management and crafts of indigenous peoples, as well as on the procedure for organizing and operating communities of indigenous peoples, taking into account historical, national and other traditions these peoples.

Canceled in 2004.

Clause 6)
Establish general principles for the organization and activities of territorial public self-government of small peoples in places of their traditional residence and economic activity.

Canceled in 2004.

Clause 7)
Establish the procedure for the allotment, use and protection of lands of traditional use of natural resources by small peoples in the ownership of the constituent entities of the Russian Federation.

Here, a comment is needed on what is the allotment of a land plot. This is a complex of land management actions to establish a land plot in nature, grant it ownership, possession, use, and lease. This is a kind of alienation of land. That is, regional government bodies can transfer their land plots to third parties. Including in favor of indigenous peoples.

Canceled in 2007.

Clause 9)
Establish administrative responsibility for violation of the legislation of the constituent entities of the Russian Federation on the protection of the original habitat, traditional way of life, management and crafts of indigenous peoples.

Canceled in 2004.

Clause 11)
Together with local self-government bodies, ensure compliance with federal legislation and the legislation of the constituent entities of the Russian Federation with regulatory legal acts of local self-government bodies on the protection of the original habitat, traditional way of life, economic activity and crafts of small peoples.

Canceled in 2004.

Clause 12)
Issue licenses and establish quotas for the traditional crafts of indigenous peoples and monitor compliance with the terms of these licenses and quotas.

This is a very important point that needs clarification. For indigenous peoples, hunting and fishing are traditional trades. They hunt and fish not for entertainment or commercial enterprise, but for survival. And it is quite true that for such purposes it is necessary to separately allocate quotas and permits for the production of animals and catching fish. These quotas must be issued separately from quotas for all other hunters and fishermen.

However, the question of entrepreneurial activity of indigenous peoples also remains open.

Canceled in 2004.

In the current version of the federal law “On guarantees of the rights of the indigenous peoples of the Russian Federation,” regional government bodies are deprived of all of the above rights. Which were aimed at protecting the interests of indigenous peoples.

IV. Article 7 endowed local governments with the following, inter alia, rights:

Clause 1)
Allocate funds from local budgets to provide financial assistance for the socio-economic and cultural development of small peoples in order to protect their ancestral habitat, traditional way of life, economic activity and crafts.

Canceled in 2004.

Clause 3)
Exercise control over the allotment, use and protection by persons belonging to small peoples of lands necessary for conducting a traditional way of life and engaging in traditional crafts of small peoples.

In 2007, the word “allotment” was changed to the word “grant”. And these are completely different legal meanings.

Clause 5)
Adopt normative legal acts on the socio-economic and cultural development of small peoples, as well as on the protection of their ancestral habitat, traditional way of life, business and crafts.

Canceled in 2004.

In the current version of the federal law “On guarantees of the rights of the indigenous peoples of the Russian Federation”, local governments are deprived of all of the above rights. Which were aimed at protecting the interests of indigenous peoples.

V. Article 8 lists the following, among others, the rights of indigenous peoples:

Clause 1 of Part 1)
Own and use, free of charge, in places of traditional residence and economic activity of small peoples, lands of various categories necessary for the implementation of their traditional management and engaging in traditional crafts, and widespread minerals in the manner prescribed by federal legislation and the legislation of the constituent entities of the Russian Federation.

A comment is needed here. This regulation deals with the ownership of indigenous peoples to ancestral lands and territories. Truncated truth. Indeed, in full measure, the right of ownership includes the right of ownership, the right to use, and the right to dispose. Here, indigenous peoples were endowed with the right to own and use land. Without the right to dispose. That is, without the right to sell, donate, rent, and so on.

In 2007, the words “own and” were removed. We were deprived of the right to own land.

Clause 8 of part 2)
Receive free social services in the manner prescribed by the legislation of the Russian Federation.

In 2004, the word “free” was dropped.

VI. The first edition of the law contained Article 13 as follows:

Article 13. Representation of small peoples in the legislative (representative) bodies of the constituent entities of the Russian Federation and representative bodies of local self-government.

For the purpose of the most consistent solution of issues of socio-economic and cultural development of small peoples, protection of their original habitat, traditional way of life, business and crafts, the laws of the constituent entities of the Russian Federation may establish quotas for the representation of small peoples in the legislative (representative) bodies of the constituent entities of the Russian Federation and representative bodies of local government.

This article was completely canceled in 2004. Regional governments are no longer allowed to allocate quotas for indigenous peoples to be represented in the regional parliament.

Over the past 20 years, the legal status of indigenous peoples in Russia has deteriorated dramatically. I have reviewed only one key law. To track all negative changes, an analysis of a large number of different regulatory documents is required. Many of which are not directly related to indigenous peoples, but have a direct impact on us.

The first Cooperation Agreement of the newly established Batani international Indigenous Fund for Development and Solidarity has been signed with the Norwegian consulting company “Arctic Consult,” whose mission is to provide legal and economic advice to indigenous communities.

Arctic Consult will assist with the research project “Why indigenous rights don’t work in Russia?” This project involves a series of studies about the implementation of state policies that affect indigenous peoples, as well as the problems of the implementation of the rights of indigenous peoples to self-determination and access to lands and resources in the Russian Federation. The project will prepare science-based proposals for the development of a strategy for the sustainable development of the indigenous peoples of Russia, taking into account their right to self-determination.

Within the framework of the project, the partners intend to develop a new innovative methodology for collecting and processing information on the socio-economic development of the indigenous peoples of Russia and their self-government, the implementation of state policy towards indigenous peoples, as well as violations of their rights by public authorities and businesses.

As scholars and experts in the fields of public international law, human rights law, business and human rights, and international economic law, we have closely followed and analysed the work of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) established by Resolution 26/9 of the United Nations Human Rights Council in June 2014. Some of us have also participated, in various capacities, in the first three sessions of the OEIGWG.

According to Resolution 26/9, the mandate of the OEIGWG is “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” Based on the discussion held during the first three sessions as well as a series of open informal consultations held in 2018, the Chairperson of the OEIGWG published a zero draft of an international legally binding instrument on 19 July 2018 and a zero draft of an optional protocol to the proposed instrument on 4 September 2018.

We note that there have been differences in opinion among states regarding the need for such an instrument and its scope as well as content. We also note some states who are of the view that the mandate of the OEIGWG was limited to holding three sessions and that a new Human Rights Council resolution would be required to hold the Fourth Session, which is scheduled to take place during 15-19 October 2018.

This open letter addresses these issues with a view to assist states as well as other relevant stakeholders in engaging with the ongoing process (including the Fourth Session of the OEIGWG) in a constructive and informed manner.

International Legally Binding Instrument as a Necessary Complement to Existing Instruments

We acknowledge the positive contribution made by the UN Guiding Principles on Business and Human Rights and other initiatives in providing guidance on the relationship between business and human rights. Significant gaps, however, remain in ensuring that businesses respect human rights and effective remedies are available to victims of business-related human rights abuses. There is also no legally binding international framework to facilitate mutual cooperation and international assistance among states to hold business enterprises accountable for human rights abuses. We believe that an international legally binding instrument would strengthen and complement existing regulatory initiatives and evolving good practice regulation at the national level.

States should Negotiate in Good Faith on the Basis of the Zero Draft

We note that the zero draft of an international legally binding instrument as well as its optional protocol build on existing human rights treaties and other international instruments binding on states. The zero draft seems to reflect the input provided by states and other stakeholders. All states should therefore engage in the process of negotiating an international legally binding instrument in good faith.

Even though we consider that the zero draft needs substantial refinement and revisions to adequately fulfil the mandate of the OEIGWG, it provides a valuable basis for further negotiations. We believe that if future negotiations are conducted in good faith, this should lead to a result which reflects the common goals of all stakeholders to promote respect for human rights by business and improved access to effective remedies for victims of business- related human rights abuses.

Resolution 26/9 as Sufficient Legal Basis for Holding Further Sessions

In addition to establishing the mandate of the OEIGWG, Resolution 26/9 also provides that the two first two sessions of the OEIGWG “shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument”. The Chairperson-Rapporteur’s was to “prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session”.

As further sessions are not explicitly mentioned in the text of Resolution 26/9, there have been questions as to whether the OEIGWG’s mandate allows holding a Fourth Session (and subsequent sessions). At the outset, it should be noted that even though the Resolution only refers to three sessions, it does not say that these would be the only sessions. In fact, the context, object and purpose of Resolution 26/9 suggest that the mandate of the OEIGWG is not limited to just three sessions. As stated in paragraph 1, the OEIGWG’s “mandate shall be to elaborate an international legally binding instrument”, not just have three sessions. Paragraph 3 of the Resolution further provides that the elements to be prepared by the Chairperson-Rapporteur should serve as the basis of “substantive negotiations”. It is thus clear in our view that the mandate of the OEIGWG is not confined to preparing the background for such negotiations but includes conducting such negotiations on a substantive level. This conclusion is also supported by the open-ended nature of the IGWG.

While it may have been the practice in the past that the Human Rights Council would revisit and renew the mandate of an OEIGWG in similar cases, there is no legal requirement to do so. In the absence of a decision of the Human Rights Council to amend the mandate of the OEIGWG, the Fourth Session and any subsequent session rest on the solid legal basis of Resolution 26/9.

In view of the above observations, we strongly urge all states to engage constructively and in good faith with the process of negotiating an international legally binding instrument. By doing so, states will demonstrate their continuous commitment to respect, protect and fulfil all human rights amidst the challenges of the 21st century.

1 October 2018

Signatories (institutions are for identification purposes only)

Source: business-humanrights.org