Protect human rights with reforms to export laws
Thousands of people have taken to the streets to protest the disputed 2020 presidential election in Belarus. Shortly after the start of nationwide protests, media reports emerged that internet-blocking technology made by Sandvine — a company with a Canadian business presence in Waterloo — was used to block access to websites in Belarus. Reporting indicated that widespread outages, lasting days, included blocking Facebook, Twitter, Youtube and Google.
Predictably, Sandvine flipflopped. Initially, it responded that the internet was not “a part of human rights” and that it had a corporate social responsibility policy in place. As pressure mounted, Sandvine reversed course, stating that it had cancelled the contract with Belarus and that the use of technology to block access to websites was a human rights violation.
These events unfolding with Sandvine in Belarus shine a light on an important issue that remains unaddressed in Canada: the exportation of Canadian-produced technology used to violate international human rights.
The Citizen Lab has conducted extensive research into the use of technology and its negative impacts on human rights over the past few decades. In 2018, the Citizen Lab released a report documenting how technology by Netsweeper — another company with a business presence in Canada — was being used on public IP networks in 10 countries with poor human rights records — Afghanistan, Bahrain, India, Kuwait, Pakistan, Qatar, Somalia, Sudan, U.A.E. and Yemen — in ways that raised significant human rights concerns. In 2015, the Citizen Lab also released a report documenting how Netsweeper technology was used to block internet content during the armed conflict in Yemen.
While government guidelines and policies directed at Canadian companies operating abroad is one step toward preventing such harms, these actions are insufficient on their own. It is time for Canada to take seriously its duty to prevent international human rights violations abroad and to implement legislative and institutional mechanisms to this end.
Updating Canadian export law is one place to start. When Canada ratified the international Arms Trade Treaty, human rights were made a mandatory governmental consideration for the first time under the Export and Import Permits Act — or EIPA, the law that sets out export controls in Canada. But this requirement applied only in very limited circumstances — like when the minister is deciding whether to issue an export permit for arms or munitions.
Far more must be done. Internet-blocking technology like
Sandvine’s is not subject to any form of export control under Canadian law. The EIPA needs to be updated so that human rights harms associated with a technology being exported abroad is a basis for the government listing it on the EIPA’S export control list and subjecting it to export controls. Canada should consider adopting the “catch-all” provision that has been floated in Europe in the context of negotiations over surveillance technology export regulation, and which will be decided in the next few weeks.
This “catch-all” provision addresses the use of so-called “dual-use” technology, which serves socially beneficial purposes while also carrying the potential to be abused or facilitate human rights violations, by requiring export authorization for these items.
As with the European proposal, a Canadian “catch-all” provision should require export authorization for dual-use items “where there is evidence that the end use may be in connection with internal repression and/or the commission of serious violations of international human rights and international humanitarian law.”
Canada must also take human rights due diligence seriously — and make it mandatory. The fact that numerous other jurisdictions have adopted mandatory due diligence laws, or such laws are under consideration, should be further impetus: democracies committed to human rights protection are moving beyond soft policy toward hard law. Why aren’t we?
In 2017, France adopted its duty of vigilance law, which requires all transnational businesses over a certain size to establish and implement a due diligence process for monitoring severe human rights violations that arise from their operations. The Swiss and Finish governments are considering similar laws. And, in last April, the European Commission announced its intent to introduce mandatory rules.
At the international level,
Canada should also throw its support behind the United Nations Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises With Respect to Human Rights, which continues to work toward a binding international treaty on business and human rights. The Second Revised Draft, released in August, requires states to adopt human rights due diligence legislation, which must impose certain obligations on businesses, backed by the threat of sanctions.
Last but not least, modernization of Canadian export law and legislation setting out mandatory human rights due diligence must be accompanied with meaningful institutional support. The Canadian Ombudsperson for Responsible Enterprise (CORE) should be expanded and empowered. The CORE’S mandate should be expanded beyond complaints relating to the garment, mining, and oil and gas sectors, and its budget should be increased to reflect that broader mandate.
Further, its investigatory and accountability powers should be expanded to include a capacity to impose penalties and mandatory production orders, as well as new statutory remedies for victims of human rights abuses committed by businesses and for circumstances where businesses fail to comply with mandatory human rights due diligence obligations.