Unsustainable International Law: Transnational Resource Extraction and Violence Against Women

The final lecture in the Rapoport Center’s fall 2016 colloquium centered around the intersection of violence against women and natural resource extraction. Penelope Simons, Professor of Law at the University of Ottawa, gave a talk entitled “Unsustainable International Law: Transnational Resource Extraction and Violence against Women” with Professor David Spence of the University of Texas as the respondent.

Simons focused her lecture on transnational resource extraction, the resulting violence perpetrated against women and regulation of multinational corporations. She defined transnational resource extraction as typically involving companies from the Global North operating in the Global South. These companies employ security forces to “protect” the extractive projects, and in doing so often commit various human rights abuses. She illustrated this by examining three case studies where Canadian corporations had engaged in human rights abuses: Talisman in Sudan, Barrack in Papua New Guinea and Hudbay Minerals in Guatemala.

Simons noted that Canadian companies have been “implicated in some of the most notorious examples of rape and gang rape”. She analyzed such violence as a specifically gendered violence against women, noting that women are the primary targets of rape and citing the UN Special Rapporteur on the Situation of Human Rights Defenders conclusion that “sexual violence is particularly used to silence women”. She went on to discuss the heightened mental health repercussions of rape versus other forms of violence, stating that post-traumatic stress disorder is more severe for women who have been raped. Simons also noted that rape is accompanied by significant social implications due to stigma, which can include being cast out of one’s home or village. Additionally, there are other forms of gender-based violence resulting from natural resource extraction that are often a direct result and reflection of the marginalization that women face in their everyday lives. Simons argued that the processes of economic globalization have operated to increase poverty and inequality of women.

Simons linked the gendered violence associated with resource extraction to the fact that international law does not currently properly hold companies accountable for their human rights abuses. Instead, international law creates what she calls “governance gaps” produced from the fact that there are “direct international human rights law obligations on transnational corporations,” while corporations’ rights are protected through binding processes of international investment and trade law. While acknowledging that there have been several attempts to fill this governance gap, such as the United Nations Guiding Principles on Business and Human Rights (UNGP) and the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises, Simons argued that these measures have been inadequate.

The “governance gap” described is the product of an international law that marginalizes women’s issues and concerns. Simons demonstrated how international law operates in highly gendered ways, through the constructions of binaries between “hard” and “soft” law, and  by placing women’s rights issues as “soft issues,” effectively deregulating them. Moreover, the key international business and human rights mechanisms, the UNGP, fail to adequately address the differentiated impact on men versus women, or the heightened risk of sexual violence for women. Simons critiqued the ways in which the UNGP divide human rights into two categories: 1) rights that always need to be taken into account, and 2) rights that may need to be taken into account under particular circumstances, such as women’s rights, children’s rights, rights of persons with disabilities, rights of indigenous peoples and other minority groups.

Simons concluded by pointing to legal development that might help to better regulate transnational corporate activity and the way in which women are fighting against the human rights abuses perpetrated by these companies. Her lecture ultimately ended on an optimistic note that by pursuing multiple strategies – both top-down and bottom-up – moves toward greater corporate accountability are possible.

In his response to Simons’ lecture and paper, Spence was broadly supportive of her call for stronger “international legal institutions that will create binding obligations”. He agreed that stronger binding regimes would “improve the lives of women who are targeted in this way”. However, he disagreed with the notion that companies were not vigilant in protecting human rights. Spence drew on his own personal experience conducting human rights training with oil and gas companies to suggest that many companies do take questions of corporate human rights obligations and responsibilities seriously. He concluded by suggesting that companies should be involved in the creation of a solution to this problem. In the subsequent discussion Simons did not dismiss the role that corporations might play in promoting human rights, but she pointed to the inadequacy of self-regulation and the need for multiple legal and advocacy strategies to address these critical challenges.