Human rights defender's story: Sukhgerel Dugersuren from Mongolia

In the build up to the third UN Forum on Business and Human Rights, ISHR will publish a series of articles by key human rights defenders and experts in this field, before launching a special edition of its Human Rights Monitor on 1 December, in both English and Spanish. Click here to join our Spanish language mailing list.

Mongolia is a brand new star on the extractive industry’s stage. Being brand new means it does not have the necessary legal framework, norms and standards aimed at protecting the environment and the rights of local communities.

Rio Tinto leads the list of large foreign and transnational corporations operating in Mongolia.

The World Bank leads a team of international financial institutions, namely the International Financial Corporation (IFC), European Bank for Reconstruction and Development (EBRD) and Asian Development Bank (ADB), that are financing mining and supporting infrastructure projects.

Owing to this support, the mining sector is booming nationwide regardless whether there is water in the Gobi desert or that minerals have to be transported on bare soil through national protected areas.    

There is an urgent need to start holding all players in the minerals sector responsible for their footprint.  

The Government is ‘issuing’ laws as demanded by mining corporations, or as they prefer to call themselves – foreign investors. In the past one year, the Government eliminated the Law on Prohibiting Mineral Extraction and Exploration in Headwaters of Rivers and Forest Resource Areas (also known as ‘The Law with the Long Name’). This law had been passed in 2009 thanks to the efforts of a decade-long civil society struggle.

Meanwhile, the Government introduced a Policy on the Minerals Sector, a legal guideline on the main principles of operation in the minerals sector. In 2014, the Government subsequently amended it and adopted the Law on Conventional Minerals to bring it in line with the Policy, which permits minerals exploration without impact assessments required by the Law on Environmental and Social Impact Assessment.

These abusive practices by corporations, with Government complicity, are made possible due to the lack of knowledge in Mongolia about corporate responsibility as well as environmental and human rights standards. The Government, international financial institutions and corporations have obligations under UN conventions, safeguard policies of institutions and standards set by the International Council on Mining and Minerals (ICMM).

Oyu Tolgoi Watch (OT Watch) has started using various international accountability mechanisms to raise awareness to these human rights and environmental instruments in Mongolia, especially among the civil society organisations.

Oyu Tolgoi is the largest mining project owned and managed by Rio Tinto (66%) and the Government (34%). We have been engaging with Ivanhoe Mines and Rio Tinto since 2010, attempting to draw attention and raise awareness around the violations of international environmental and human rights standards.

Our goal is to create demand at community level for corporate accountability.

We are basing this on the fact that companies react to demand and they are acutely sensitive to reputational damage. Rio Tinto, for example, fails to comply with its own policies as well as standards set by potential lenders. We have two complaints in mediation since 2012 through the IFC’s Compliance Advisor/Ombudsman mechanism. Word about the use of complaints mechanisms has reached other communities and there are requests to assist them in filing complaints with relevant accountability mechanisms. The process is slow – but it is slowly moving.

Challenges of human rights defenders in Mongolia start with the fact that there is no knowledge about who HRDs are, what they do and how the Government should create a legal and practical framework for their activities.

Some emblematic examples of the types of threats faced by HRDs in Mongolia working in the area of land and environmental rights are as follows:

Ts. Munkhbayar is a 2007 Goldman Environmental Prize winner and known for his work with the government and grassroots organisations to shut down destructive mining operations along Mongolia’s scarce waterways. Ts. Munkhbayar is a former nomadic herder who lost access to traditional pasture and water resources as a result of mining operations. He had organised a nationwide movement to develop and push through parliament ‘The Law with the Long Name’, and was subsequently jailed for 7 years in attempts to safeguard this law from problematic amendments.  On 16 September 2013, as deliberations were underway to repeal ‘The Law with the Long Name’, he entered the Government compound armed with a rifle in a symbolic act to demonstrate that all legal means of struggle had been exhausted. This act did not cause any damage and there are no victims in this incident.

On 12 August 2014, Eugene Simonov, an Environmental Whitley Fund winner, was deported from Mongolia for requesting access to technical documents of hydro-engineering projects financed by a World Bank loan under the Mining Infrastructure Investment Support (MINIS) project. All three hydro projects have the potential to cause harm to UN-protected sites in Mongolia, Russia and China. He was not informed of his deportation until he tried to make his way back to Mongolia from China.

Four members of the local community of Govi-Altai aimag were taken to court by an iron ore mining company for briefing a Government working group on the negative impacts of the mine on their community. They were part of the briefing due to their public service roles: a Bagh governor (smallest administrative-territorial unit), a medical doctor, a kindergarten manager and a head of a cooperative.

Mining corporations or businesses generally have a record of using police, prosecution and judiciary to harass local community members for attempts to protect their rights.

The Government unfortunately engages in vilification, indirect threat and influence on judicial decisions evidenced by speeches of top-tier country leaders, as well as the lack of investigation or accountability on allegations of threats, intimidation and harassment by representatives of corporations.

Challenges faced by HRDs working on corporate accountability in Mongolia include the absence of an enabling legal environment, the vilification and smear campaigns, the denial of the right to information, the lack of redress and effective remedies, as concluded by the 2012 fact-finding mission undertaken by FORUM-ASIA. Since then, there have been many recommendations to the Government to create necessary enabling environment. The UN Working Group on Transnational Corporations has also conducted a country visit to Mongolia and expressed their concerns officially to the Government.

Engagement with the UN human rights bodies, especially with the UPR process since 2010, has raised awareness on the issue of business and human rights in Mongolia.

The issue appears to have moved forwards as a result of several activities including briefing the UPR Working Group, drafting the submission of a civil society report to the UPR and engagement with all relevant Government ministries, parliament bodies and political party caucuses seeking information on government plans to implement the Business and Human Rights Guidance.

The UPR system is promising in terms of engagement with States to show that the UN is serious about its conventions and their implementation. It brings in much broader engagement, exposure and support to start implementing commitments. I hope the next round of review will actually look at the budgets set aside for their implementation and move on from voluntary to mandatory recommendations where necessary.   We are also hoping for more capacity building support to civil society engaged in this process, especially beginning to work on the new Business and Human Rights Guidance monitoring.

We hope that the Government will implement the recommendations of the UN Working Group on Transnational Corporations  as per its report on Mongolia from its  first fact-finding mission to a member State.

In 2013, a 7-member delegation led by a Parliament member visited the Human Rights Council but never attended the Forum itself. Our engagement with Government found that there is no knowledge of the Guiding Principles on Business and Human Rights, the Working Group report mentioned above and generally no clarity about its role in ensuring that businesses respect human rights on its territory.

Monitoring the compliance of foreign and transnational corporations without engagement of international human rights systems is simply dangerous as well as ineffective.

In a globalized world, the goal should be to bring international norms and standards together with the transnational corporations, to eliminate double standards in business operations in Mongolia.

Rio Tinto has been able to monitor and prevent a major disaster in its Kennecott’s Bingham Canyon mine in the US but does not prevent mine collapses in other parts of the world they operate in.  In Mongolia they have huge white clouds floating over their mine, which they would not do in the US.

If transnational corporations publicly commit to upholding international standards everywhere they work, they should do so in practice and we will monitor compliance with their own commitments.