United Nations Special Representative of the Secretary-General on business & human rights
Updated 26 April 2010: The Special Representative has been collecting views and feedback; here he aims to test some of the propositions that are emerging.
Often problems arise because companies fail to consider the potential implications of activities and relationships before they begin -- or because complacency sets in once they're established. Companies can know and show that they are respecting human rights only if they take proactive steps to understand how existing and proposed activities may affect human rights.
Such assessments could, where appropriate, be integrated into other relevant company processes, such as risk assessments or environmental and social impact assessments. Specific tools such as “human rights impact assessments” are one means to achieve this purpose (see the SRSG's 2007 report on the topic), but the important thing is that potential impacts are identified and addressed, not the form or tools by which the assessment is achieved.
Moreover, human rights situations are dynamic and pre-existing conditions will change with the entry of a high impact business operation. Therefore, the assessment of impacts should take place regularly throughout the life of a project or activity, whether triggered by project milestones, regular cycles (e.g. periodic performance reviews), or changes in any of the issues related to the scope of a company's responsibility to respect human rights: context, activities, and relationships.
Questions for discussion:
Propositions:
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Agreement: 4 0
The more we focus on due diligence, the more we focus on the quality of process more than outcome. This does not preclude a focus on outcomes but there is a danger that we let this ball drop a bit. The whole business and human rights discussion is only relevant if it does - at some stage - make things better for humans somewhere in the world - by preventing violations, by expediting access to adequate remedies if violations do occur and, hopefully, by harnessing the positive role of business to increase capacity for the promotion and enjoyment of rights more generally. There is still a lack of good research that shows the impacts resulting from the human rights due diligence undertaken by companies. I know this is hard - you cannot measure the absence of an abuse, for example. But for us to rapidly scale up all our work, I think we need to demonstrate not just the tools available to mitigate risk, but also some of the real outcomes that can result from such approaches. There is some interesting baseline, during and post project research on human rights undertaken by some companies and NGOs - not much in the public domain - but perhaps the start of an evidence base about the outcomes resulting from human rights approaches. The key will be multi-stakeholder approaches - where community, government and NGO perspectives on impact are factored in from the start.
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Agreement: 6 0
HRIA isn’t strictly about whether companies “are meeting their responsibility to respect human rights”; it’s also, crucially, a preemptive step, determining whether and to what extent the project design is rights-responsible even before operation begins. This forum topic notes that “the important thing is the activity” of assessing human rights impacts. Our field and desk research has shown that it’s actually several activities, conducted in order. These might be called “principles” underpinning assessment, but we view themas concrete elements of assessment, providing a body of information that builds on itself. So while the “form” of an HRIA isn’t terribly important, a structure is inevitable if elements add up to a coherent statement of human rights risks and impacts. Nomogaia has created a methodology for HRIA that we have road-tested on large corporate capital projects, including open-pit mining and forestry.While some topics change (e.g. supply chain tends to be far more significant in a lumber mill than in an ore grinding mill) the central elements remain the same. An effective HRIA must detail, or catalog, key elements of the project area’s context (political, social, economic, environmental, historical, health-related) to establish a baseline of rights protections and violations.This should be cross-checked with both project design (including employment needs and planned community programs) and company history and policies (including past scandals and global agreements and compacts). Changes from baseline represent impacts, and a company’s past performance can suggest potential impacts that project design alone may not (if, say, a company does not historically follow recommendations in EIAs or has had failures of monitoring). For ease of interpretation, the subtopics in these catalogs should directly refer to the rights potentially impacted by each existing condition and proposed change caused by the project. For example, in a “project catalog” under the health section, the subsection of project clinics would directly impact the right to health(positively) for employees. Presuming that all necessary and rights-relevant data is cataloged, this automatically generates a list of potentially impacted rights. “Rightsholder Engagement” is absolutely vital in our HRIAs. This term refers to one-on-one interviews, surveys,focus groups and site visits with the least empowered members of impacted societies (interviews with village headmen, school headmasters and clinicians are also conducted, though these interviews provide baseline context more than rightsholder risks). It is important that a human rights impact assessment rate or rank the severity of rights impacts, both positive and negative, to guide the company in how to prioritize project changes. Rights ranking is controversial but not entirely subjective. As the Danish Institute has put forth in its “Arc”publication, rights are increasingly prioritized with increasing connection to the company, increasing severity of impact, and increasing number of impacted rightsholders. For examples of completed HRIAs, please visit the Nomogaia website's HRIA page: http://nomogaia.org/HRIA/HRIA.html
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Agreement: 8 0
While I think the focus on principles for impact assessments is good, I do think that the field of HRIAs would benefit from an agreed definition from a well-respected authority (of course subject to a public consultation of some sort). While it is true that many 'multiple impact assessment' tools exist for companies, they often have differing objectives and not all seek to measure a company's impact. For example, some tools focus on measuring a company's performance.
I think clarity in this area would be helpful for companies, as it is often difficult for them to understand which tool to use, when such differing tools fall under the same umbrella.
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Agreement: 1 0
What is needed is robust guidance on form and content of HRIA (the basics). There is not yet a body of work that business can turn to that provides a roadmap. This is still an emerging area of assessment, and diligence frameworks are lacking. Another challenge will be actually finding individuals (and consultants) who can undertake such work for business proactively or, for example, conduct due diligence for institutions such as banks.
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Agreement: 5 0
I think the question of what threshold is going to determine when a company should undertake an assessment - and indeed, the characteristics of that assessment - is going to vary quite significantly between industries. An internet company introducing a new social networking product is going to be very different than, say, an oil and gas company commencing new operations. For the companies I'm more familiar with (tech ones, mainly...) it seems to me that we are so early on in the business and human rights agenda that the active and engaged participation of key people and functions in the business - those that know the market, the technology, the product features, the local laws etc - is a key principle underpinning the assessment of human rights impacts, even more so I think than the actual methodology used. I think that keeping the underlying principles and methodologies simple while focusing on their use and uptake by a much wider range of companies and functions is critical. I also think its important to remember that there are already plenty of people in business already undertaking due diligence exercises (on privacy and data security, for example) that can very usefully be fed into the broader frame of a human rights assessment.
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Agreement: 2 0
In some cases, certain operations are categorized as “low-risk” overall despite having significant risk of freedom of association violations. In the IFC performance standards assessment process, for example, financial institutions were initially designated as low-risk and not subjected to the same scrutiny and requirements as other investments. The IFC has begun revising this process. Even developed countries with robust rule of law have significant, well-documented gaps in their protection of human rights, including but not limited to labor rights. Any trigger/threshold mechanism should not preclude serious assessment and proactive behavior by corporations in this type of context.