“Export Credit Agenciesand Human Rights”

• Look at international human rights law• The European context• Case study – to demonstrate link between the social,

environmental and hr impacts• Are ECAs subject to hr obligations?• Implications of this for ECAs• Suggestions for ECA policies and practice• Highlight existing methodologies

Fraser Reilly-King, Halifax Initiative Coalition

International human rights law

•Promote international cooperation•The respect, protection and fulfillment of universal human rights and fundamental freedoms without discrimination

•Characteristics of international human rights

•Legal obligations fall on the state through ratification•Primary responsibility is on the state•Primacy of HR

•Regulating non-state entities?

Human Rights and the EU

• Long tradition of recognizing HR– European Convention for the Protection of Human

Rights and Fundamental Freedoms (1950) – Further codified in national Charters– Maastricht Treaty on European Union, Art. 6– European Court of Justice

• HR - fundamental principles of EU

• HR Obligations for EU members seem strong

Example: Baku-Tbilisi-Ceyhan pipeline

• 1,760 km, US$3.7 billion pipeline• Transferring 1 million barrels of oil/day• Funded by a number of ECAs, IFC and EBRD

Impacts• 30,000 land users affected with high risk of economic

displacement• Environmental damage caused by construction and

corrosion to the pipeline• Ethnic, vulnerable group discrimination• Use of security forces with broad powers• Host government agreements creating exemptions• Poor procedure: consultation and redress

Negative impacts and human rights

Resettlement, economic disruption, poor compensation

•Right to an adequate standard of living, non discrimination

Suppressing protest, use of security forces

•Right to freedom of expression, assembly and association, freedom from arbitrary arrest, security of person

Consultation

•Freedom of information, participation in decision-making

Host government agreements

•Overrides state obligations to its citizens, and potentially undermines ability of government to fulfill HR obligations

•Legal confusion over effectiveness of third party mechanisms for recourse, right to justice

Are ECAs subject to HR obligations?

Different structure

•Different levels of ownership – public, quasi public, private

But common state or public function

•Formed under national law, or entrusted by the government under national law

•Act as agent for the government or discharge a public function – to promote national trade

•Report to government (and Parliament) through Ministries

•Assumption of debt by the national government

•OECD Definition “officially supported export credits and insurance”

So what does this mean?

• ECAs are public institutions (regardless of structure) and can’t be exempted from state legal obligations

Does not necessarily mean “STOP” activities, BUT• Given they are acting on behalf of the state• Given the impact of their activities on human rights• Their activities should be consistent with the legal

obligations of the state – Respect – not violate– Protect – implement measures not to violate– Support the fulfillment of human rights obligations

So how could ECAs take better account of human rights?

• States parties – establish effective mechanisms to ensure accountability and responsibility of ECAs re HR

• Proper due diligence with respect to HR • Incorporate respect for HR into ECA charters and by-laws• Reference HR conventions in ECA policies (ECGD, EDC)• Full screening of projects for potential HR impacts • Transparency - Publish summary of advice given and

sought on human rights with respect to a project (Ilisu)• Independent compliance mechanism (EDC/JBIC/OPIC)

and whistleblower provisions• Human rights protection plan!

What methodologies exist to take account of human rights?

•Danish Institute for Human Rights – Human Rights Compliance Mechanism

•International Alert – Conflict Risk Impact Assessments•Rights and Democracy – Human Rights Impact Assessment for Communities

•Women’s Edge – Gender Impact Assessment of Trade Agreements

•UNDP and UN High Commission for HR - Human rights impact assessment for trade agreements

•Halifax Initiative – Rights-based approach to project finance

THANK YOU!

Fraser Reilly-King

Program Manager, Export and Project Finance

Halifax Initiative

freillyking@halifaxinitiative.org

153 Chapel Street, Ottawa, ON K1N 1H5, CANADA