In June 2022, Michel Forst became the UN's first Special Rapporteur on Environmental Defenders. In that role he has spent the past year speaking out about the increasingly onerous laws and aggressive tactics being used against climate protestors. Today he released a statement on the UK, saying he is "extremely worried" about "the increasingly severe crackdowns on environmental defenders in the United Kingdom, including in relation to the exercise of the right to peaceful protest." (Make sure to catch our story and podcast episode on what’s happening with climate protest!)

The position of Special Rapporteur on Environmental Defenders was created under something called the Arhus Convention. It's called that because it was adopted in the Danish city of Arhus. Its official title is the UN Convention on Access to Information, Public Participation in Decision Making, and Access to Justice and Environmental Matters (you can see why Arhus Convention is handy shorthand).

The Arhus Convention falls under the United Nations Economic Convention for Europe, and it's been ratified by 48 states, including the European Union. Forst points out that because it's a convention, there are actual teeth to it, too, which makes things kind of interesting.

Specifically, this new position of his and the convention that supports it creates a pathway for citizens to voice issues that they have with a development that will affect them. It also requires that they be informed about those developments. So whether it's a building project, a mine, oil drilling, really anything that will impact their environment, they need to be informed about it. And they need to be able to express their opinions on it. The convention also states that it's not enough for people to be able to voice their displeasure with a particular project. They also need to have a legal pathway to do something about it.

I sat down with Forst in 2023, as yet another COP was preparing to muzzle protestors, to ask about his position, what it means, what he’s seeing in Europe and what he can do to protect environmental protestors.

Michel Forst at the UN headquarters in 2016, when he was the Special Rapporteur on Human Rights. Photo Credit: Frantz Vaillant

You can also listen to this conversation in our podcast! Looked for Drilled wherever you get your podcasts, or click the link below to listen right here:

Anna Pujol-Mazzini: Hello, Michel Forst. Thank you so much for taking the time for this interview. So could you start by introducing yourself and telling me a bit more about your role as special rapporteur?

Michel Forst: Yes. So thank you for the invitation. As you know, I've been recently appointed to a due mandate. which has been created by states that are party to the Arhus convention, which is a very interesting convention, ratified by 48 states, including the EU, based on three pillars.

The first is access to information, meaning that in any country, which is part of the convention, when there is a project that would affect the environment, then those who might be affected should be properly informed by the state in any language that is accessible to the public. The second pillar, which is complementary to the first, is the obligation for states to also consult communities, families, people who are affected by this project.

And they would have a right to say anything on the project, including the right to say no. Doesn't mean that they could block the project, but at least they could express themselves and say that they don't agree with the project. And the last pillar, which is very relevant for the time being, is access to justice, access to environmental justice, meaning that people have a right to go to court and then to challenge any decision made by the state or the company when it affects their environment. So the mandate is mostly directed to countries that are party to the Earth Convention. But the beauty of the mandate, if I may say so, is that when it comes to companies, that operate abroad, like companies doing extractive industries or anything in that vein, if they have their headquarters in one of the countries, which is part of the convention and operate abroad and then do harm to defenders abroad, like a company based in Madrid, working on Payamol and working in Peru or Colombia, and then deforesting affecting communities, then those defenders could have an access to my mandate.

And then it would speak not to the state, but to the company itself. So we have plenty of cases currently coming to the mandate from Africa, from Latin America, and also from Asia involving companies that are based in France, in UK, in Switzerland, Norway, other countries. So there's a very new mandate, very interesting.

And we need to promote the mandate because most of the defenders, most of the climate activists or environmental defenders don't even know that they are defenders and that there are currently mechanisms that could support them or defend them when they are currently facing threats. And the reason why states have decided to create this new mandate is precisely because they see that in many parts of the world, those who are the most targeted, the most under pressure are climate activists. And of course, you know, the data provided by Global Witness and Frontline Defenders and others, and you see that currently it's only the tip of the iceberg.

APM: So you're the first rapporteur for the protection of environmental defenders, and the position was only created last year. But as you say, we know that climate and land defenders have been criminalized and even killed for decades. So could you talk a bit more about what prompted the creation of this role at this particular time?

MF: As I said, precisely because the states party to the convention have been made aware of the need to do more. So there is a strong component on prevention in my mandate, and I'm trying to develop with my team. Also with the support of lawyers and NGOs, new measures to prevent those attacks to occur. The difference between this mandate and other UN mandates is that while other mandates have been created by a resolution adopted by the Council in Geneva, by the UN Rights Council, this mandate has been created within a legally binding instrument—the convention—which has huge implications in the, the months yet to come. The fact that there is a mandate created an illegal bind instrument has huge implications for states, but also for the companies because companies that are currently in one of the countries that are party to the convention are also legally bound by this new mandate.

APM: And so the fact that the mandate is legally binding, what does that give you? What tools does that give you to protect environmental defenders?

MF: It gives more, more pressure to, to the mandate. When I'm speaking with ministers, traveling to two countries, when I'm sending allegation letters to countries, drawing the attention on the fact that defenders are being threatened or under attack, then the fact that the mandate is granted legally reinforces the dialogue with the state, because they know that it has, it may have implications. Like for instance, uh, if one state would not fulfill, the recommendations expressed by the mandate. Then there would be also possibilities for the other parties to the convention to request a withdrawal from the states from the convention, which in terms of international diplomacy have quite a number of implications.

Could you imagine UK or France being expelled from one of the most relevant convention on environment? That will be complicated for them to face. And similarly, the fact that we are currently in Europe adopting new measures, new legally binding instruments, like the new due diligence directive, would also have implications for companies that are based in Europe and states would have the obligations to oversee the behavior of companies supporting like TotalEnergies in France, uh, or like companies from UK or from, from other countries operating abroad.

So it's too early now to say, but I am confident that the more we developed together with lawyers, the methods of work, and we will see the results in a number of states.

APM: Could you maybe give us an overview on what the situation looks like today in the world for environmental defenders and how it's evolved in the past years?

MF: Yes, you know that in the past I also had another mandate. I used to be the UN Special Rapporteur on Human Rights Defenders. And when I started with this mandate, it was in 2014. I invited hundreds of defenders to meet with me in broad consultations in all five continents. And I was struck by the fact that the people that came to me that were the most at risk were precisely environmental defenders.

And that's why I decided to develop and to present a report in 2016 to the UN Human Rights Council on environmental defenders, just to state that's the situation that you are facing and why is it that you don't respond properly to the needs expressed by those defenders? You have created mechanisms, tools to protect them.

But nonetheless, you see that there is an increasing number of killings of those defenders. And then states under the leadership of Norway, decided to adopt a new resolution on environmental defenders. which I adopted a couple of years later, and it was a way to pave the way for other states and for the EU and for the Lifeline project to create new tools and modalities to protect environmental defenders.

But nonetheless, we see that the situation is quite, quite complicated now. And that's why having this new mandate, I'm trying to do the same, that is to organize consultations. But, uh, broadly, I would say that the situation has not improved and it's sort of like a battle in which you see that the more effective the tools are to protect defenders and the more difficult the situation is becoming because states are developing, and companies are developing also new forms of insidious attacks against environment defenders and climate activists.

APM: So when you're talking about the situation getting worse for environmental activists and states and other actors developing new tools, could you talk a bit more about what that looks like?

MF: Yes, I mean, if you read the reports by Global Witness, they would tell you, well, the data of killings or attacks against defenders is increasing now.

It's not diminishing, despite the fact that we have developed new measures, new forms of attacks—insidious attacks—have been developed by state using different forms of criminalization, campaigns of vilification against climate activists and environmental defenders, new forms of attacks using like anti terrorist laws to target those who are simply going to the street to protest against the inaction of states on climate.

And that's something which, which, unfortunately, it works, in fact, and you see that the reaction of the public to those new forms of mobilizations is not a big support.

APM: Absolutely. I've heard you talk in other interviews about also this sort of battle of narratives and the violence, particularly in France, that's used by the government and the media against environmental activists.

So I'm really interested to, to get into that a bit more. What would you say is driving this increase in the criminalization of environmental defenders, particularly in Europe, which your mandate mostly covers? Are there special Interest or interest groups lobbying for these changes?

MF: You know, when I was appointed in the two, in fact, I started in October 22, I decided to travel to EU countries just to present the mandate because it's not well known and we need to promote the mandate.

And I've been invited to quite a number of EU capitals to meet with governments and meeting with ministers, trying to seek support, but also political backing and sometimes funding for the mandate. And at each and every occasion, traveling to those countries. I've been also inviting climate activists and defenders to come to me, to meet with me.

I've been asking organizations to set up meetings to discuss the situation in countries to see what is the level of attacks in countries. And I've been impressed by the fact that what came first was civil disobedience and climate activism. In fact, a meeting with Greenpeace, a meeting with other organizations, Dernières Réservations in France or other countries that have similar organizations.

They all came to me saying that we see that currently there is a huge pressure on us. The judicial system does not respond adequately, properly to our needs. We are sentenced to more and more heavy fines or penalties or prison fines. We are targeted by the police and sometimes very violently, like in France, but also in Germany.

And we don't see a big support from the media. The media are only reporting on actions taken. But they never speak on the causes of the action. That is why we are going to the street to demonstrate that. And they only say that we are blocking access to roads, putting in danger other people, blocking the access to hospitals, which is not true, blocking access to airports.

But they don't report properly on why we as climate activists go to the street to claim for a better response from the state on what we see currently and daily, the increasing climate crisis and biodiversity crisis. And that's why I've decided to organize, that was in July, a first meeting inviting 27 climate activists from, from, from 17 countries to meet with me one day, and the idea was to share information and to read different experiences coming from, from different countries. I also invited lawyers, their lawyers to come to the meeting and to explain why they have been not able to provide a very effective support to these climate activists.

And the idea of this first workshop was to prepare sort of a guidance tool for states to see whether or not we could find a sort of harmonization inside EU countries on how states are responding to the new form of mobilization. Because what we currently see is that what happens in France is different from what happens in Germany or UK or in Norway or Switzerland, which is not part of the EU, but we had someone also from Switzerland. And even in countries, we see that the response coming from the judicial system is not the same. If you demonstrate in Paris or in Toulouse, or in Bordeaux, then if you are brought to justice, you go to court, and you receive different sentences from the court.

The same judicial system doesn't have enough sort of harmonization of the response to climate activism. I've also been monitoring trials in courts in different countries to see how the judges would respond to the needs expressed by the people to explain the causes of the action and to use also the criminal code in different ways.

And to be honest, I'm really struck by the fact that the judges don't really respond to the needs. In some countries, like in France or Switzerland or Germany or Norway, then you see that judges would decide to sentence, but nonetheless to lift the sentence, expressing that they have understood the cause and why people have decided to break the law consensually, for the cause.

But nonetheless, what is not relevant is that in a continent or in a group of countries like the EU, the response coming from the judicial system is different, which is not acceptable. In fact, currently UK and Germany are the two countries that are the most difficult for climate activists and those who are using civil disobedience.

And it has in those countries, but also in other countries, a deterrent effect, meaning that people are sentenced to heavy fines. And so they would decide not to continue with their action. They would decide to withdraw from the organizations. So it works from the side of the government. The more important the fines are, penalties, then the more people would decide to withdraw from organizations and would not decide to continue the fight.

APM: That's so interesting. I mean, I wonder what has changed, at least in Europe in the past few years, to pave the way for that increased criminalization and repression of environmental activists, and I wonder If you've heard of particular political groups or interest groups or sort of companies pushing for repression in order to protect their interests?

MF: Well, in fact, the, the reason why we see such an increasing number of forms of mobilization in Europe is that young people, to note, are currently the most active and see that their future is endangered in fact. And that's why they are going to street to demonstrate and using civil disobedience as a way of action.

But on the other side, the reaction from the states is quite, is quite different. I don't know, but probably, companies would talk to each other. In fact, that's clear. And I know that governments are currently also discussing what's happening in their countries, comparing situation, comparing the response from the justice system to those new forms of mobilization.

But, we don't have concrete elements to elaborate on this. We know that some companies are putting pressure in UK, on the government. We know that companies are putting pressure in France, like TotalEnergie and others on the government to respond to the attacks coming from those activists against those companies, but we, I cannot confirm that. There are currently a sort of European mobilization from companies or a network of companies that would decide to lobby in Europe, at the EU or at national level, at domestic level, against this new activism.

What I see is that on the media you see more countries, people using those new forms of mobilization, blocking the streets, throwing paints in museums, or blocking access to roads. And they see that it draws the attention of the public and the media, but at the same time they complain that the media do not report properly, adequately, they don't explain the causes.

So it's sort of a battle, which is ongoing in countries in Europe, and we need to monitor, and that's the role that the mandate has: to monitor the situation, and then to report back to states, and to provide guidance to states to better respond. In my workshop in Paris in July, I also invited a few, activists coming from outside the EU to see whether or not it's limited in EU.

And in fact, we have people coming from Georgia, for instance, or from Serbia, which are not party to the EU, but close to the EU. And those countries will tell us that it's not the case in their countries, in fact. So currently that's very limited to EU countries, in fact. So we need to understand why.

APM: So when you say this seems to be limited to EU countries, is that the civil disobedience techniques, or is that the sort of repressive strategies used by states?

MF: Both. I mean using civil disobedience is a form of action that is used mostly in EU countries. While in Denmark, for instance, I was struck by the fact that climate activists in Denmark, the first thing that they asked me, was to leave my, my computer and my telephone outside of the room, because they say we are under surveillance, and we are taped. And that’s the first time for many years that I have seen that in Europe, people asking me to put my telephone outside of the room. And when they came to Paris to my meeting, they say the same. So we decided to leave all telephones outside the room.

APM: Wow. And so I find it so interesting Norway being a country which is also seeing a lot of climate activism and a lot of civil disobedience, but not as heavy handed a response to it. Would you say that's currently the country that's best respecting the rights of environmental defenders within your mandate?

MF: I would say yes, but it needs to be confirmed. It was only a workshop. I've also been traveling to Norway to also meet with them, and I was struck by the fact that the situation is quite different from other countries in the EU, but that needs to be to be confirmed by a more comprehensive analysis.

And that's why I also have to request the Fundamental Rights Agency, the FRA, based in Vienna, they are doing studies to study the legal systems in many countries, and then they are also doing interviews with beneficiaries to see whether or not the law is respected in countries. So the FRA would also be looking at the current state of legislations in new countries on civil disobedience to see whether there was a need to harmonize legislations.

This is interesting because it's one of the agencies that reports to the EU, to the Council, to the Commission, and to the Parliament, in fact. And the role is to guide also the EU institutions on how to put pressure on states to better respect the Charter, in fact. So a study coming from the FRA would also be a way to complement my own empiric analysis of the situation, a more scientific observation of what's happening in EU countries.

APM: So since your office was created almost a year ago now, what are some of the complaints that you've received? Do you have figures or examples of the complaints people come to you with?

MF: The, the practice is that with UN special rapporteurs, the communications are kept confidential until they become public, in fact.

So when I receive a complaint or a communication coming from, from a defender, then I'm discussing with the staff, we're looking to receiving additional information, we double check information to make sure that we are not manipulated and that the mandate is relevant. And then when we are sure that the complaint is relevant for the mandate, then we send a communication, an official communication to the state and state that they have 60 days to reply to my communication in writing. And then my communication and the response of the state becomes public on the website. So if you go to the website of my mandate, you will see a few public communications. The idea of those communications is to prevent other attacks from occurring.

That is, if we deal with an attack, then the state has a duty not to duplicate or to repeat the attacks to the communities. So the idea is to make sure that those communications will be able to prevent attacks. So currently we're receiving communication coming from climate activists complaining that they have been arrested, brought to justice, that the justice system doesn't fulfill the international obligation of the states and that states have ratified conventions that they don't respect. We are also receiving a communication coming from defenders in Latin America, having been attacked by companies based in one of the countries that is party to the Arhus convention.

So we’re currently, yes, discussing with states, discussing with companies on how we should follow up on those communications to make sure that things will not happen and not be worse for, for defenders. We also have cases like in the Balkans or Central Asia of broad communiques claiming that their rights to be properly consulted or to be heard, have not been respected by the state. And when it's come to big projects like megadams, we have a case of a megadam in one country in Central Asia, where communities have been affected. So it's more sort of a more broad communication coming from a group of defenders rather than a communication coming from one single individual.

APM: What are some of the cases that you're now allowed to talk about?

MF: I would have a few cases of climate activism. Like what's in France, there was a case of a journalist who had been accused of taking part in an action. And then being assimilated into a group of people who are using civil disobedience, when he was there as a journalist, and then he was arrested by the police.

And, and then after my letter was sent to the government, then the government decided to lift the charges against him. So that's one of the cases.

APM: There's a big question, I think, surrounding the impact that your office can have. And as you say, you can work with countries that have signed the convention, or when companies that are headquarters in countries that have signed the convention work in other countries. So since the brunt of the violence occurs in countries outside of Europe, and especially against Indigenous communities, and since the U. S. and Canada, which are home to a lot of ecocidal multinationals, are not part of the convention, how can your office ensure the protection of these environmental defenders? And so, what can you do, if anything, with regards to nations that are not part of the convention or with regards to multinational companies?

MF: That's precisely what is the limitation of the mandate in FIFA. When companies based in Canada or in China or in Russia or in the U.S. and are doing harm to defenders, to communities, to indigenous people, I can do nothing. When I receive a complaint coming from them because they think that my mandate would be relevant, then I'm simply forwarding the communication to other mandate holders. And we have a good level of communication with other rapporteurs.

I would also report and will forward the information to the Secretary of the Excelsior Agreement, which is similar to the Paris Convention, but relevant for the Americas. I would also decide to forward the information received to the African Rapporteur on Defenders. So we have a network of Defenders.

And if I'm not able to take a case, then I would refer the case to other rapporteurs. And similarly, some of them, we decided to put pressure on states to do joint communication with me, and I could also decide to do a joint communication to a state with the Commissioner for Human Rights of the Council of Europe.

And she also, at many occasions, refers cases to me because she's traveling a lot to countries inside the Council of Europe. And when she sees that she's approached by communities or defenders, then she says, there is a mandate. Which is relevant to you, and I will refer the case to you. And then the staff are communicating on the case.

APM: Could you talk very quickly about the difference between the Arhus Convention and the Escazu Agreement?

MF: Both are international agreements. They are based on the same pillars, the three pillars, access to information, public participation, access to environmental justice. So we have the same grounds, in fact, on many bases.

But the main difference is that the Arhus Convention is a universal convention, meaning that all states outside of Europe could also ratify the convention, which is the case for one country in Africa—Guinea Bissau—has decided to join the Arhus Convention. We are currently also discussing with other countries in Africa to join the convention, while the Escazú agreement is a regional agreement only for, for Latin America, for the Americas as a whole, in fact.

And the other difference is that although Escazú agreement and Arhus convention have also a strong component on the protection of defenders, the Arhus Convention has decided to establish a mandate, while it's not the case for the Escazú Agreement. And currently, yeah, we are discussing with the Escazú Agreement Secretariat, which is based in Chile.

They monitor the way this mandate is effective or not. And then they may also decide to establish a regional mandate under the Escazú Agreement to also promote and protect the defenders in the region. So that's more or less the main difference, but we are working in fact very closely together.

APM: You've talked a bit about the climate activist tactics of civil disobedience in the Europe region. And so I think a big, big question is the question of nonviolence, right? So according to the convention, environmental defenders are only protected if they are nonviolent, but given the climate emergency and the lack of impact that peaceful protests have had in the past decades, we can see that the methods of environmental activists are evolving to sometimes include sabotage and material destruction were also so increasingly seeing states and the media portray these activists as violent and dangerous, even in cases where that's not true. So, how, how do you ensure those activists are protected and what level of material violence is considered legitimate. How do you handle the increasing use of sabotage as a necessary strategy to stop ecocidal projects?

MF: Yes, you're right. And the question of violence is at the heart of the mandate to the view of the UN. In fact, that's a question which has been debated since decades by the UN and by member states. And you know that in 1998, states at the U. N. have decided to adopt a U. N. declaration on human defenders.

And precisely the clause of violence was very largely discussed by states when adopting this declaration and can only be recognized as a defender, someone who is not using violence. And, in my past mandate, I've been continuously confronted by the question of is that violence or not? And It's each time a difficult decision, a case by case decision.

And for me, since I've been working on Defenders for so many years, together with the staff, we have adopted a clear definition of violence. Violence cannot be against persons or against individuals. Like for instance, if you go to a rally or demonstration in the streets, you are throwing stones at police officers? That's for me violence. Those people are excluded from Arhus protection. They are throwing molotov cocktail at a building? That's for me violence. I could not recognize. I mean, I don't challenge the legitimacy of their cause, but they are not recognized by me as being human rights defenders. Someone who is responding to the violence by police? That's something which is different. If you are in a demonstration and you are all of a sudden surrounded by police officers that would decide to beat you violently, and you would defend yourself, in fact, kick the knee of the police or, um, yeah, defending yourself, that for me is not violence, in fact. That's self defense, and those people could be recognized as being defenders.

So that's the limitation in terms of physical violence, in fact. When it comes to violence to property, I also have a very different approach. I would not, I would not take as defender someone who is deliberately using sabotage as a form of action. For me, that's clearly a limitation. But, one which is something really complicated to describe.

If you would break the door of a private property to, to do a civil disobedience activity, then for me that would not be violence, in fact. That would be a way to simply open the door to, in a symbolic place, doing an action which is very, which will respond, will respond. to the definition of civil disobedience.

So, trespassing or breaking down a door to get to private property, to protest against a project in a symbolic way, is not considered violence, because you are not destroying, in fact you are not destroying the property, you are trespassing, in fact. You are, in fact, destroying the door, maybe, or the barrier.

But then you enter a field or a place in which you decide to publicly use using a civil disobedience but it's not it's not it's not violence for me. While destroying a property like destroying a basin like in France that's that for me is not …I mean I would not say it's not acceptable, but those people could not be recognized as being defenders in fact.

APM: Okay, so in, in this particular case, if you're mentioning the mega basins and the water defenders in France. Those activists who purposely decide to sabotage the installation of a basin — they don't come under your mandate?

MF: Clearly no.

APM: How do you come to that conclusion? Is that something that you're sort of still thinking about? And that could be evolving at some point, given the lack of climate action through peaceful means? Like, is sabotage always out of question?

MF: As I said, we are monitoring, on a case by case, and through discussion with the staff. But for the time being, what we call sabotage is something which is not permitted under the mandate index.

I would not, I would not admit. But of course, we could, we could further discuss with the staff, we will see the forms of action, the new forms of action taken by activists. But for me, that's clearly currently a strong barrier, and I don't want to currently enter in a discussion with, with those groups to discuss the validity or legitimacy of sabotage.

That would be too complicated for me. I need to be careful because that's a new mandate, in fact, so I don't want to hamper the development of the mandate by taking too prematurely decisions that would then have an impact and the state would decide to abolish the mandate because they would see that I'm going too far and then I'm also pandering, in fact.

The boundaries are created by the resolution that creates my mandate. My role is to explore, if I may say so, the boundaries of non violence, but not to overlap the boundaries, in fact. So exploring may also be able to expand progressively the boundaries. But if I'm going too, too fast and I see the danger that state will decide, Oh, it's too dangerous.

Then we abolish the non-violence, which would be, yeah, a disaster for climate activists, in fact.

APM: It's probably a question that you're dealing with on a near daily basis, which would be like, how can I protect as many environmental defenders as I can without antagonizing states and multinational companies who might be putting pressure on states and make my mandate irrelevant. Right?

MF: Yeah. So if you take the case in France that I described— the case of the journalist, you know? In fact that day there was a group of, of activities that enter, I don't know the English term, whether, whether they store grains

APM: Grain silo.