The crisis triggered by COVID-19 is challenging the very meaning of coexistence and cohabitation and redesigning the boundaries of public space in an absolutely unprecedented way, with unpredictable results.

Written by Francesco Martone and originally published by the Transnational Institute.

Measures to contain free movement and prohibitions on assembly have led to the temporary limitation, if not suspension, of some fundamental rights, such as the right to mobility, to meet, to demonstrate, to family life.

Over four billion people are now suffering under varying degrees of restriction of civil rights and freedoms. Nevertheless, this crisis is occurring in a global context where democracy and the civic space were already under attack, and this element needs to be duly factored in when analyzing the human rights implication of the crisis and possible remedial actions.

The CIVICUS monitor report “People power under attack” (December 2019) registered a backsliding of fundamental rights and freedom of association, peaceful assembly, and expression worldwide (40% of the world’s population now live in repressed countries, compared to 19% in 2018). The report concluded that civil society is now under attack in most countries, and just 3% of the world’s population are living in countries where fundamental rights are in general protected and respected.

In this context, COVID-19 is in fact representing a major challenge for human rights and the role of the state. Restrictions, such as social distancing, deemed crucial to preventing the spread of the virus pit the fundamental right to health against other fundamental rights and freedoms – albeit temporarily – and challenge the fundamental concept of indivisibility of rights. It is also bringing to light the extensive weakening of the state’s obligation to ensure key social and economic rights, such as the right to health, by means of a robust public health sector, or to a decent job. Millions of people, mostly the most vulnerable, migrant workers, precarious workers are losing their source of income and will be in dire conditions after the medical emergency is over.

As far as the impacts of COVID-19 on fundamental rights and on the quality of democracy are concerned, two situations can be identified. In states where restrictions and violations were rampant before the COVID-19 emergency is being used to strengthen the grip and increase repression and antidemocratic features. These are states where exception is the rule. In states where democracy still exists, albeit with the limitations described in the CIVICUS report, the COVID-19 emergency risks paving the way for dangerous restrictions that might persist also when the “emergency” is supposedly over. These are states, where the rule might become the exception. These two distinctions are key also to understand what the different challenges for international solidarity and social movements are. In both cases the space of initiative – current and future – would be jeopardized or at least affected. Social distancing is in fact hindering the possibility of organizing in traditional terms, (assembly, demonstrations, meetings, advocacy and solidarity delegations, international civil society monitors). To various degrees, countries in the so-called Global North also, where NGOs or social movements operate or are located, were already starting to suffer from a restriction of civic space (see for instance criminalization of solidarity, or restrictions and violation of privacy for antiterrorism purposes). The difference is that now the restrictions, of freedom of circulation and movement and the right to assembly in particular, are applied to entire populations.

It will therefore be essential that all measures undertaken to deal with the COVID-19 crisis and its consequences, respect fundamental rights and comply with a rights-based approach. News from various countries does not warrant optimism. From Colombia, for instance, where rural and indigenous communities already under attack before the pandemic are now even more under fire from paramilitary forces: in the last ten days at least six leaders have been murdered. Or in Hungary where Viktor Orban’s recent moves have allowed him to have full powers to manage the crisis. Or the Philippines, or Egypt or Turkey. It comes as no surprise then that in various recent statements the UN has called upon states to ensure the respect of fundamental rights, to protect the most vulnerable and to ensure that the COVID-19 emergency is not used to trample on peoples’ rights, and to justify further repression.

A brief analysis of the situation in Italy

Italy was one of the countries where COVID-19 spread with dramatic and tragic intensity. Some regions in the North, (Lombardy, Veneto, Emilia Romagna) are ranking first in terms of contagion, hospitalized patients and death toll. The spread of the pandemic in the country has been accompanied by unprecedented restrictive measures that have triggered an interesting debate on legality, democratic legitimacy, and states of exception and emergency and a growing number of initiatives by social movements, civil society, and ordinary citizens.

First and foremost, we must consider the extent to which the management of the COVID-19 emergency risks opening or deepening existing fault-lines in the democratic basis of the country and its governance structure. For instance, we are witnessing a risky overlap of competences and fragmentation of the polity. On the one hand the government, a coalition between the Democratic Party and the 5Star movement plus other minor parties, on the other the governors of the hardest-hit regions, Lombardy and Veneto (run by the right-wing League), on the other the pervasive presence of the “experts”, the Civil Protection Service (Protezione Civile) and the National Institute for Health (Istituto Superiore di Sanità). The latter are those that are instructing the political decisions: the “political” government is being substituted by some sort of medical governance and crisis/disaster management approach. Hence, any initiative that is being undertaken is hard to challenge politically, since it is motivated by scientific and technical assumptions and by the alleged goal of ensuring the containment of the virus and, by doing so, fulfilling the obligation to respect the constitutional right to public health.

The emergency is somehow “depoliticizing” the public debate. To add to this, the political turf battle between the government and those regions led by representatives of the main opposition party have led to the adoption of a multitude of decrees and ordnances that somehow form a patchwork of regulations and prohibitions, that make it harder to ensure proportionality and accountability and leave broad discretion to public officials. The use of the military in policing “social-distancing” measures is a case in point. It should be stressed that the deployment of the military for public security purposes is not a novelty in the country. Troops have been deployed to ensure protection of sensitive targets against hypothetical terror attacks, but their rules of engagement never included the enforcement of public order as the case could be now. Some “regional governors” in fact urged the deployment of troops in the streets to ensure compliance with “social-distancing” orders.

Secondly, the de-legitimation of Parliament and of the so-called “political caste” has reactivated speculation on the need for a “strong-man” or of the centralization of executive power. This de-legitimation was already severe before the outbreak and needs to be read in conjunction with the fact that, before the COVID-19, two key political deadlines were approaching, notably administrative elections and the referendum for the reduction of the number of members of Parliament. In fact for the first time ever the President of the Council of Ministers, currently Giuseppe Conte, has been issuing so-called Decrees of the President (DPCM), a brand new category of acts , since decrees are usually issued by the government as a whole. These were made executive without parliamentary debate and without their transformation into law, and hence without a sort of public scrutiny as the Constitution mandates.

In fact, the Italian Constitution does not contain any norm related to the state of emergency, while Parliament’s activity has been reduced to a minimum because of the spread of the virus among Members of Parliament and only after a few weeks from the declaration of the state of emergency was there a parliamentary debate on the COVID-19 and related government measures. More worryingly, Italy has no independent human rights institution that would monitor compliance of government’s activities and restrictions of fundamental rights and freedoms to international human rights standards and obligations as mandated by international covenants to which Italy is part, such as the International Covenant on Civil and Political rights.

Third, beyond exposing these gaps and fault-lines, COVID-19 is also bringing to light the systemic imbalances, injustices and lack of full achievement and even denial of key social and economic rights in the country. As many as 2.7 million people are at risk of hunger because they have lost any source of revenue or income due to the lockdown, and at least 20 million people are now living on subsidies and other forms of emergency income introduced by the government. These figures account for a the broad informal economy and precarious or free-lance work. Also, the dramatic rush to step up intensive care units and to increase the number of health care personnel, point to the impact of budget cuts on the public health care system carried out in the past, with all the consequences it carries in terms of ensuring equitable access to public health care for all. The current inhumane conditions for detainees, due to overcrowding, also came to public attention after a series of prison riols triggered by fear of infection.

Lastly, other estimates point to the risk of a substantial shortage of fruit and produce in the markets, since at least one quarter of annual production is guaranteed by 260,000 seasonal migrant workers who now cannot travel due to the restrictions. Many of them have been working in the past in semi-illegal or extreme conditions. or have ended up involved in organized crime. Concerns have already been voiced about the potential of the Mafia to exploit this situation by offering support and access to credit to those who lost their jobs and hence cannot ensure their basic subsistence.

Parallel to the official narrative, that hinged on a mixture of cheap patriotism, restrictive measures, and scientific governance of social processes, other practices developed, that represent an important social and political capital for the future: online assemblies; a flourishing theoretical debate on COVID-19 and its implications at all levels; a growing number of initiatives by social movements; a proposal for an Ecofeminist Green New Deal; campaigns for better conditions in jails and for amnesty; for a so-called “Quarantine minimum income”; a recently published platform of civil society organizations and social movements working on trade, economic justice and against extractivism, and in parallel a growing number of solidarity initiatives are clear signs of another Italy that does not accept resignation or helplessness. An Italy that does not accept the idea that in order to tackle the virus and its implications people have to solely comply with orders aimed at limiting, repressing or imposing “do-nothing” behavior. Support services for the elderly, the most vulnerable, those that live alone in their homes, food banks, psychological support and assistance, purchasing and home delivery of drugs are among the most recurrent self-organized initiatives, that express an attempt to turn the feminist concept and practice of “care” into political practice. Civil society somehow transforms itself into a “commune”, and its members into commoners, that collectively organize to foster the respect and pursuit of common goods and rights, such as the right to food, care, solidarity. The challenge will be that of nurturing that mix of theoretical analysis, mobilizing and mutual aid and support from below after the most immediate “medical” emergency will slowly leaving the space to the economic and social one.

Further challenges will be that of linking up those processes with the global level, with similar and parallel processes elsewhere, adopting a “decolonized” approach that would always consider power imbalances locally and globally. COVID-19 will not bring the automatic transformation of our societies or the collapse of capitalism, or a revolution by proxy. Rather, the way and intensity of activation of social movements’ response “at present” will also be key to determine how these, and new and innovative modalities of conflict, proposal and self-organization can forge our future.

Photo credit Daniel Chavez (TNI)

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About the Study

Resource and energy demand has increased over the last few decades, with more extraction and land use happening in more countries than ever before. The rising resource demand from the industrialized countries and emerging economies depends on the resources located in the Global South. Many governments in the Global South have opted to advocate for natural resource exploitation as a pathway to greater socio-economic development.

However, this route needs to be challenged by looking at the actual benefits and costs imposed on people and the environment by current practices in the natural resource arena. The perspective of many affected communities is clear: They do not currently stand to gain, and indeed often suffer, from present approaches. Accordingly, they are calling for greater participation in decision-making and protection of their rights in natural resource development and governance.

Opening up lands for resource development projects in the Global South generally goes hand in hand with enshrining participation rights for the public to ensure their input in decision-making. In many places, however, civil society actors who are pushing for a greater say in project implementation or resource governance face increased pressures. When non-governmental organizations (NGOs), community-based organizations, and their individual members make claims about the use of natural resources, they face particular threats to – and restrictions on – their space, generally characterized by a high level of physical intimidation, and even lethal violence.

These pressures may also include the initiation of unfounded criminal investigations, surveillance, defamation, burdensome registration requirements for NGOs, stricter regulation of foreign funding for NGOs, and the restriction on demonstrations. Such pressures on civil society in the natural resource arena are not an isolated development, but part of a larger, seemingly global trend to cut back civic space, as documented by organizations such as CIVICUS in their annual State of Civil Society Report, or by the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association.

The concept of “space” moves attention away from single types of pressure, for instance a narrow focus on the freezing of funding. It thus serves to more fully capture the wide range of pressures and restrictions experienced by civil society organizations. In addition, it enables studying the interaction between – and possibly sequences of – different forms of restrictions. Space, then, denotes the possibility and capacity of civil society to function in non-governmental or community-based organizations and to perform its key tasks. Without a real place at the table, civil society space can deteriorate into “fake space.” A study of civil society space should, therefore, not only focus on the pressures faced, but also include an analysis of civil society’s ability to use that space to actually obtain a real voice and induce change.

Country comparison of claims to natural resources

The study at hand was designed to uncover common patterns and dynamics of restrictions on – and coping strategies adopted by – civil society actors in the specific context of natural resource exploitation. It draws on case studies in India, the Philippines, Mexico, and South Africa. These four countries have huge reserves of natural resources, whether in the form of deposits for extraction or vast tracks of land suitable for energy production or industrial agriculture. They are all also home to conflicts about their natural resources, in particular with regard to their exploitation, development, and governance. In addition, the four countries can be considered “partial democracies,” in contrast to strong authoritarian or strong democratic states.[1]

One salient feature of partial democracies is the difference between the de jure space of NGOs, which is the space they should have according to applicable legislation, and the de facto space of NGOs, or the actual existing space in which they operate (Van der Borgh & Terwindt 2014, 15-16). This study relies on qualitative interviews conducted with grassroots organizations and NGOs working in the field of natural resources. In addition, individuals were interviewed who are working on the international level for international NGOs or governmental institutions and whose mandate explicitly includes the support of civil society or the protection of human rights defenders.

Patterns in restrictions

The examples of natural resource governance in Mexico, South Africa, the Philippines, and India show how laws and administrative decisions allow for and foster natural resource extraction without ensuring adequate participation rights. Guarantees for participation, albeit enshrined in national legislation, do not automatically protect those affected. On the contrary, communities, civil society activists, and NGOs often have to actively advocate for being included in decision-making by government or the private sector. If communities and NGOs push to be heard and have their criticisms taken into account, violations of their civil and political rights frequently ensue through, for example, defamation in the media, threats per SMS, arrest warrants, or even killings. The sequence and kinds of pressures on civil society tend to follow the logic of natural resource exploitation and are often traceable to specific stages in a project.

Early on, information is rarely made available to communities, hampering any efforts to make an informed decision or mobilize. As soon as critics start speaking up about a project’s negative impacts and their opposition to it, they face pressure. This pressure can be in the form of targeted intimidation, stigmatization, or the criminalization of individuals or organizations. The stage of a project in which extraction licenses get approved is often marked by high levels of contention. Public protests can lead to mass criminalization, administrative restrictions on the freedom of assembly, or physical encounters, and vice versa. Finally, not only, but in particular, leaders who continue to resist the implementation of extractive projects despite earlier threats and defamation can risk being killed.

Even though killings are certainly the most drastic threat faced by communities and NGOs, already before such killings occur, many communities may have been intimidated to an extent that leads them to the decision to remain silent. Killings really are only the tip of the iceberg, and support for community members and NGOs should thus come long before they face physical harassment. It has also become clear that a number of actors play a role in putting pressure on those speaking out, ranging from government bureaucrats and police forces to private security guards, company managers, and neighbors in communities.

Designing strategies to defend and reclaim space

In response to such threats, civil society, in coordination with governments and international institutions, has developed a wide range of measures and coping strategies to shield and protect community-based organizations, NGOs, and their individual members against such pressures, and to reclaim space for organizing and speaking out. Lessons learned have been collected in a number of manuals and toolkits, which can serve as guidance to other organizations and communities. Some measures focus on protecting physical integrity and security, such as access to emergency grants, security training, provision of secure spaces or relocation, accompaniment, medical assistance and stress management facilities, awards and fellowships, or solidarity campaigns and visits.

Other strategies have been developed specifically to counter administrative restrictions on registration, operation, and funding of NGOs, or for responding to fabricated charges. While some of the strategies thus counter particular types of pressures, guidance has also been developed to explain the availability of support that can be offered by European Union missions, United Nations institutions, or national human rights institutions. Specific attention has also been paid to the particular risks for women who take leadership roles and speak out publicly.

Thus, although a variety of measures and support mechanisms exist, it can be difficult to assess what is most strategic in a particular situation. As one of the most prevalent forms of defensive responses, affected community members and NGOs often opt for emergency response measures. Yet, these ad hoc measures present a number of problems. Security precautions may end up being so time-consuming that those at risk might prefer to focus on their political work instead of meticulous adherence to security protocols. Meanwhile, choosing to fly under the radar may result in unintentionally downplaying or obscuring the extent and nature of the threats and harassment they face. With limited time and resources, organizations have to make choices and may end up getting caught in reactive response loops, leaving fewer capacities to dedicate to longer-term strategies.

In addition to short-term response measures, movements try to develop proactive, longer-term strategies. Through visibility campaigns, they strive to expose restrictions on the space of civil society and the authors of such pressures. Affected communities, civil society activists, and NGOs also engage in human rights advocacy with government actors to guarantee a secure space for the exercising of their political and civil rights. These long-term strategies face a number of challenges. For example, the decision to go public and demand accountability might mean exposing victims of harassment to further threats.

Reliance on human rights entails further dilemmas. Although human rights advocacy is the most prevalent framework to counter pressures on civic space, it has limits when economic interests are at stake or when governments refuse to pledge adherence to human rights. Against this background, it is indispensable to develop further proactive strategies countering the very dynamics that are so characteristic of natural resource projects and that allow for, and result in, killings and other forms of restrictions.

Changing structures – enabling participation

Given that the type and sequence of pressures are closely related to the stages and actors in the natural resource arena, proactive strategies can push for changing those structures that shape natural resource development. This report addresses three such structuring elements: consultations, business, and law.

Consultations: An essential step in resource development legislation, policies, and projects is the inclusion of civil society, and affected communities in particular, in decision-making. Protests and conflicts are often intensified by thwarted attempts at meaningful participation. One tool that has become widespread in law and practice is the “consultation” process, which is at the heart of civil society participation in decision-making about natural resource projects. Increasingly though, consultations have been criticized as hollow exercises to legitimize extractive projects, without taking local concerns into account.

When affected communities and NGOs set out to exercise their rights to freedom of expression and peaceful assembly against this continued exclusion, destructive dynamics may be set in motion in which community divisions, defamation of leaders and NGOs, and public protests can eventually lead to physical confrontations that sometimes result in violent actions against civil society, including targeted killings. Certain fundamental changes are needed to avoid consultations becoming mere window dressing to push through extractive projects.

For example, civil society participation should not only be guaranteed once a project is planned, but also in the adoption of trade rules in multilateral and bilateral fora, legislative proposals on extractive industry regulations, and national and regional development plans. Consultations must rely on adequate access to information. The imbalance of power between businesses and communities needs to be tackled, and financial institutions should create the right incentives. Benefits should be shared adequately, and it should be recognized that not all projects are viable.

Business: Response strategies that deal with the involvement of business actors are poorly developed. What is expected of corporations in the natural resource arena needs to be made more explicit, and new ways must be found to push business actors to live up to their responsibilities. Business is still all too often viewed as an “outsider” to local dynamics, thus exempting them from actively preventing and countering the pressures faced by civil society members and NGOs critical of particular projects or development policies. Business should be pushed to implement the, at times promising, rhetoric it has adopted, and be reminded of its responsibility through complaints in (quasi) judicial fora. Financial institutions and the money they provide are often the backbone of natural resource projects, and the leverage they have over business behavior should be utilized more effectively to enforce relevant standards on community protection. Companies need regulation and oversight, and home as well as host states should assume a more prominent and effective role in implementing such structures.

Law: Legislation plays a key role in shaping natural resource governance, but it often favors corporate investments over the protection of local communities. Laws are also instrumental in restricting civic space through administrative regulations or practices of criminalization. At the same time, though, social movements can use legal instruments strategically as leverage vis-á-vis more powerful actors. Communities and NGOs therefore need tools to counter legal pressures and develop strategies to use legal procedures to reclaim their space and influence.

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