Human Rights Impact Assessment

[*]

by Mark Wielga
Director, Nomogaia[1]
wielga@nomogaia.org
Overview

Background

Human Rights Impact Assessment (HRIA) is a process of analyzing and describing the ways a policy or activity impacts human rights. When a HRIA is performed on behalf of, and directed toward, a corporation or business operation, HRIA is one form of human rights due diligence as defined by the UN Guiding Principles (see Teaching Notes on Human Rights Due Diligence and on the UN Guiding Principles).[2] HRIAs of planned, future business operations often consider potential negative impacts, referred to as “human rights risks.” The term refers to risks to rightsholders, and not risks to a company arising from those impacts.

“Impact assessment” is a term of art referring to a process for systematically identifying actual and potential impacts of a business operation, capital project, government policy or inter-governmental agreement.[3] Environmental impact assessments of business projects are required by law in most countries.[4] Impact assessments focusing on health and social aspects of corporate actions are also becoming increasingly common.[5] Impact assessment is a field with its own practitioners, theorists, organizations and scholarly journals. Human rights impact assessment is a relatively new and small part of that field.

HRIA has its roots in two separate fields: human rights policy and impact assessment. Since 1995, donor agencies and development experts have sought to understand the effects of their programs on human rights.[6] Landman endeavored to link that analysis to firm indicators,[7] while Walker connected it to the field of impact assessment.[8] The field of “impact assessment” was established largely as part of environmental protection in the 1960s and 1970s.[9] Translating a tool for environmental measurement into a tool for human rights evaluation has been hindered by the fact that human rights impacts are not as quantitatively measurable as, for example, impacts on soil, air and water quality and quantity.[10] Nevertheless, advances have been made in both theory and practice of HRIA in recent years, with Harrison leading theoretical advancements in evaluation of HRIA as a form of human rights “due diligence”[11] and Salcito producing tested mixed-method approaches to HRIA in practice.[12]

Human rights impact assessments originated as an evaluation mechanism for government policies, infrastructure and trade agreements.[13] With the rise of the field of business and human rights, HRIAs have now been performed on business operations in an array of industries. Most of these have been on “large footprint” capital projects such as open pit mines, oil and gas operations, large plantation agriculture and factories. HRIAs have also been performed on tourism operations (hotels) and reportedly on information and communications technology sector projects, although no ICT assessments have been made public.[14]

Human Rights Impact Assessment versus Human Rights Due Diligence

The UN Guiding Principles introduced the concept of human rights due diligence, a process by which a business investigates and responds to its own impacts on human rights. While the UN Guiding Principles do not use the term “HRIA,” it does refer to “assessing actual and potential human rights impacts.”[15] When conducted by companies, human rights impact assessment is one form of human rights due diligence. The UN Guiding Principles have influenced HRIA practice so that HRIAs are now generally performed with the intention of falling within the UN Guiding Principles definition of human rights due diligence. While there is no agreed upon terminology for different kinds of human rights due diligence, terms and processes have proliferated, including “human rights assessment,” “human rights gap analysis,” “human rights risk assessment” and “human rights impact assessment.” The differences among these terms, and their corresponding analyses, have not been clearly defined. In the resulting confusion similar reports have quite different titles and wildly differing reports have similar titles.[16]

In some cases, a comprehensive HRIA is the first effort made by a company or operation to confront business and human rights ideas. As such, it can be a company’s first focused engagement with human rights issues. HRIA is often considered to be one of the most detailed and in-depth processes involved in human rights due diligence. However, the UN Guiding Principles definition of human rights due diligence requires more than assessment. In addition, they require that the company act upon the findings, track its responses to them, and communicate how impacts are addressed. The UN Guiding Principles also require that human rights due diligence must be ongoing, “recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.”[17] None of these additional requirements are part of conventional impact assessment, but are a part of most HRIAs.

For example, the assessment of the Marlin Mine mandated by Goldcorp’s Board of Directors is an example of human rights due diligence.[18] It assesses the mine’s human rights risks. But the limitations on rightsholder engagement created by the mine’s ongoing disputes with the community meant that the highly knowledgeable assessment team could only call it a “human rights assessment” and not a HRIA. The HRIA of the Nevsun mine in Eritrea is part of an ongoing assessment with all the UN Guiding Principles requirements of human rights due diligence.[19]

Conducting a Human Rights Impact Assessment

Normally, impact assessment considers a corporate project before it has been built. Its conclusions can help guide redesign of the project to reduce and mitigate impacts. If the likely impacts are severe and unavoidable, the government (or corporate entity) can decide that the project should not be built.[20] Some HRIAs take this prospective approach and consider a project which has been designed and planned, but not yet built. However, the UN Guiding Principles make it clear that human rights due diligence is an ongoing effort, and so a purely prognostic analysis is not sufficient. Also, human rights issues are often fluid and unpredictable, so that a single, forward-looking analysis will almost never be accurate or complete.[21] Again, valid HRIA adopts the UN Guiding Principles requirement and so is an ongoing process.

The investigation of human rights impacts has become a matter of corporate governance and a growing number of companies have established policies committing to the UN Guiding Principles.[22] Because corporations lack appropriate in-house human rights expertise, HRIA, like other impact assessment, is usually conducted by expert consultants paid by the company. For all impact assessments this presents the problem of bias, particularly when the consultants are dependent on companies for their livelihood.[23] Some consultants build reputations for independence and scientific rigor to rebut any implications of bias. In other circumstances, regulation, transparency and the involvement of civil society commenting publicly on the assessment can protect against bias.

For human rights impact assessment, where science is a part of the analysis, but where methodology is not established and subjective analysis is an unavoidable component, bias is a fundamental and critical problem.

If HRIAs are performed with pro-company bias, they can be a form of “greenwashing,” creating defenses for anticipated attacks against the company and its operation.

In addition to being a matter of corporate governance, a company’s human rights impacts are of interest to the local community, the government and to society generally. As such, there have been HRIAs performed by NGOs supporting local communities and by independent think-tanks.[24] Community- and NGO-led HRIAs are also subject to claims of bias, and anti-company sentiment embedded in a HRIA can have a delegitimizing effect. Companies have frequently dismissed these HRIAs as baseless attacks.[25] Community- and NGO- led HRIAs often have the advantage of being public assessments that can open up needed policy debates.

HRIAs generally identify the human rights that are being considered in the assessment. Some include the full set of human rights (the International Bill of Rights plus the ILO core conventions, at a minimum) covered by the UN Guiding Principles.[26] Others explicitly limit themselves to specific rights.[27] For example, some HRIAs focus on the Right to Water, the Right to Security of Person, or the Right to Health. HRIAs identify the rightsholders whose rights are being impacted. For example, the Right to Health may be affected by an unsafe work environment, where the employees are the rightsholders, or it may be affected by environmental pollution, in which case downstream water users are the affected rightsholders. HRIAs also articulate the degree and extent of the human rights impact. For example, a large open pit mine which relocates a village impacts a variety of rights for the people relocated. The severity of those impacts depends on the provisions made for the relocated population. Some HRIAs consider positive impacts as well as negative ones. This is not required by the UN Guiding Principles for human rights due diligence, but is considered by some to be necessary to fully understand the actual human rights impacts.[28] HRIAs also include concrete recommendations for changes in the design or management of the corporate project, as well as monitoring and follow up to consider new impacts during the life of the project and to determine if the recommended actions have been carried out and are having the desired effect.

Methodology

While no single, generally accepted methodology for HRIA exists, all of the available methodologies include common elements. First, there is a need to understand the human rights context in which the corporate project exists. A corporate operation in Myanmar will have completely different human rights impacts from an identical operation in Sweden. Overarching issues particular to the place must be considered. This includes such topics as indigenous claims to a particular land or resource; whether the area is, or has recently been, a conflict zone; whether high HIV rates affect local populations, etc. Government repression and rights fulfillment must be considered along with the status of locally marginalized minorities. Labor plays a central role in business and human rights, and so labor issues, including salaries, working conditions and the strength of unions, are considered. The environmental impacts of a corporate project may also have bearing on the rightsholders’ physical environment and health. Human rights impact assessments are unavoidably interdisciplinary and require inputs from many different areas of expertise. Methodologies differ in how the information is gathered and judgments are derived from various experts in specific disciplines. Methodologies also differ in the extent to which the rightsholders themselves are directly engaged.[29] Some rely more heavily on leaders (local officials, traditional leaders, union management etc.) to speak for the rightsholders and describe their conditions. Others consider direct contact and engagement with the rightsholders themselves integral to HRIAs.

Most publically available HRIAs utilize qualitative analysis to present human rights impacts, both potential and actual. Within these HRIAs, impacts are organized and arranged using different approaches. Some focus on the impacts of individually recognized human rights found in international human rights treaties. Others focus on groups of rights (such as Labor Rights) or on rights applicable to vulnerable populations, (such as Children’s Rights). Different HRIAs also evaluate impacts at different geographic levels (local, regional, national), consider different aspects of human rights and use different indicators in their analysis. Therefore, the form of HRIAs varies considerably.

Transparency

Established impact assessments, particularly environmental impact assessments (EIAs), are often legally mandated and entirely public. A core component of EIA legislation is that the public is fully informed of the impacts and has the ability to comment. This was considered to be one method of identifying (or validating) the scope of impacts and generating strategies for reduction and mitigation of impacts.

The lack of transparency currently characterizing most HRIAs profoundly affects their credibility and effectiveness. Currently, no country’s law requires HRIA to be performed or mandates a public notice and comment process for them. Many companies prepare human rights impact assessments and keep them entirely confidential.[30] This practice excludes the public and exacerbates the claims of bias in their preparation, as described above. The HRIAs which have been made public are the exception rather than the rule. In some cases, (see, e.g., Nevun’s HRIA on its mine in Eritrea) the company very intentionally made the HRIA public, and claims that its transparency was advantageous. Other companies do not make their HRIAs public, but publish summary descriptions of them (e.g., Nestlé).

Teaching Approaches

For teaching business and human rights, HRIAs are useful as real world examples of business and human rights issues described in a detailed, comprehensive manner. HRIA methodology raises basic questions of what human rights mean is practice, how human rights standards can be applied and, more generally, how businesses actually affect human rights. Because of the variety of teaching uses described below, HRIA is a subject which can fit in a business and human rights course at various stages, but in any case after the introductory materials on human rights in general, the UN Guiding Principles and human rights due diligence. Some teachers use it as an example which can be used repeatedly during the course. Others use it as a capstone summarizing the course as whole. Still others have a standalone segment on HRIA methodology with a practical exercise.

HRIAs are helpful examples of human rights due diligence. HRIAs tend to be the most robust and detailed form of human rights due diligence. HRIAs can also be used as in-depth comprehensive examples that can be referred to repeatedly throughout a business and human rights course. Using concrete examples can be of great assistance to amplify and clarify the high-level principles on which a business and human rights course naturally concentrates. HRIAs show a student what happens when the human rights principles actually affect what a company does, or highlight what a company does not do. Examples of particular HRIAs can show the difficulty, limits and benefits of human rights due diligence.

The HRIA examples listed below (Teaching Resources) vary in their usefulness for teachers. Some were early stage, extremely general HRIAs performed when methodologies were not yet fully developed. Some are so lengthy and detailed that they may take too much class time to absorb. Teachers may pick a few HRIAs to focus on.

How HRIAs are carried out goes to the heart of business and human rights. There may be questions of legitimacy regarding the company’s influence over how they were performed and who prepared them. Community- and NGO- led HRIAs can be compared to the company-led HRIAs. So far, governments and academia have not conducted HRIAs on their own, but the advantages of doing so can be discussed and debated. Bias is a fundamental problem for HRIAs. Classes can consider whether it is possible for HRIAs to be neutral, or whether they inevitably reflect a bias which undermines their conclusions.

HRIAs are useful for exploring the question of the actual practicality and ultimate efficacy of the human rights lens and of human rights due diligence. Are human rights too many and too complex to be adequately covered in one analysis? Can one analysis effectively cover issues as diverse as freedom of speech, the strength of unions and health care? Are human rights standards useful when applied to real conditions? What does the Right to Housing mean in an area where traditional homes are small, and made from forest materials? What does the Right to a Living Wage mean in a place where no one is paid more than what is generally considered to be extreme poverty and most everyone is a subsistence farmer or petty trader? When does on-the-job training respect the Right to Education for employees who grew up during a conflict which effectively shut down the schools? Is a company respecting rights when no women even bother to apply for jobs?

These concrete questions can lead to fruitful discussions in business and human rights classes usually devoted to systems and theory.

Some business and human rights courses include segments in which the students perform their own human rights assessments. They are given materials , or conduct research, on real corporate operations. To make these exercises feasible, a small group of students can be given one set of rights (Labor Rights, for example) and investigate how those rights apply to the operation.

One teaching technique is a verbal group investigation. This begins with the statement of a scenario (a corporate operation and a setting). The scenario can be a real one or a stylized amalgamation of real projects. The teacher or a guest speaker will act as a representative of the corporation with deep knowledge about the operation. The class then has an extensive question and answer session with speaker trying to uncover and assess human rights issues. While some issues will be immediately apparent, the exercise can be designed so that other issues will only be apparent after thoughtful questioning and follow up. A more elaborate version of this exercise has the class jointly interview a representative of the company, and then representatives of the community, the government and/or an opposition NGO as well. In the mix of information, some of which is contradictory, the students can appreciate the challenges in making human right assessments. This exercise can be based on an actual HRIA, and after it is completed the students can be shown the HRIA as a topic of study.

Learning objectives may include:

  • Engagement with a real world example of businesses and human rights and what it really means in practice.
  • Understanding human rights due diligence as required by the UN Guiding Principles.
  • Appreciating the complexities and effort required to consider the full set of human rights as required by the UN Guiding Principles.
  • Understanding the difficulties of applying human rights standard to actual situations.
  • Recognizing the value of the “human rights lens.”
  • Experiencing human rights enquiry on a well-developed fact situation.
Key Questions

General

  • What are the key components of a HRIA?
  • When should a HRIA be conducted?
  • Who should conduct a HRIA?
  • How are HRIAs different from human rights due diligence?

For business students

  • What should a company’s human rights policy say about HRIAs?
  • Should a company make its HRIAs public?
  • What should a company say about its non-public HRIAs?
  • Which company department should be responsible for commissioning or overseeing HRIAs?
  • Which company department should be responsible for following up on the recommendations in a HRIA?
  • How does HRIA relate to enterprise-wide risk management?
  • Should a lender commission, or require its borrower to commission, HRIAs?
  • Should a project finance lender commission, or require its borrower to commission, HRIAs?
  • Should HRIAs be performed in connection with a merger or acquisition?

For law students

  • Why would a company have a HRIA performed?
  • Can HRIAs create legal liability?
  • Can HRIAs reduce legal liability?
  • Should HRIAs be confidential?
  • Should HRIAs be covered by the attorney-client privilege?
  • Does a HRIA fulfill the UN Guiding Principles requirement of human rights due diligence?

For policy students

  • Should governments mandate HRIAs?
  • Should government require HRIAs to be public?
  • Should government shield companies from liability in order to promote public HRIAs?
  • Is the traditional impact assessment model, where the government approves consultants who are then hired by the company, appropriate for HRIAs?
  • Who are the sponsors of the most effective HRIAs, companies, governments or NGOs/communities?
  • Should governments perform HRIAs on corporate projects?
  • Should governments perform HRIA on their policies and laws?
  • Should governments perform HRIAs on trade agreements?
  • In what situations should intergovernmental organizations (such as the UN or OECD) perform HRIAs?
Teaching Resources
Notes

[*] This Teaching Note may be cited as:

Mark Wielga, “Teaching Note: Human Rights Impact Assessment,” in Teaching Business and Human Rights Handbook (Teaching Business and Human Rights Forum, 2016), https://teachbhr.org/resources/teaching-bhr-handbook/teaching-notes/human-rights-impact-assessment/(opens in a new tab).

The author acknowledges the participants in the sixth annual Teaching Business and Human Rights Workshop (May 2016) at Columbia University, who contributed ideas for this Note in a collaborative session on teaching human rights impact assessment.

[1] Nomogaia is a non-profit think-tank devoted to the field of business and human rights. Mr. Wielga has also taught business and human rights as an Adjunct Professor at the University of Colorado Law School.

[2] Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, (New York: United Nations, 2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf (“UN Guiding Principles”).

[3] Frank Vanclay, “The Triple Bottom Line and Impact Assessment: How do TBL, EIA, SIA, SEA and EMS Relate to Each Other?” Journal of Environmental Assessment Policy and Management (Vol. 6, no. 3, 2004), 265-288.

[4] William H. Rodgers Jr., “The Seven Statutory Wonders of U.S. Environmental Law: Origins and Morphology,” Loyola of Los Angeles Law Review (Vol. 27, Spring 1993), 1009-1022.

[5] Henk A. Becker and Frank Vanclay, eds. The International Handbook of Social Impact Assessment: Conceptual and Methodological Advances (Northampton, MA: Edward Elgar Publishing, 2003).

[6] Todd Landman, Studying Human Rights (New York: Routeledge, Taylor and Francis, 2006).

[7] Todd Landman, “Measuring Human Rights: Principle, Practice and Policy,” Human Rights Quarterly (Vol. 26, November 2004), 906-931.

[8] Simon Walker, The Future of Human Rights Impact Assessments of Trade Agreements (Cambridge, U.K.: Intersentia, 2009).

[9] Paul Portney and Robert Stavins, eds., Public Policies for Environmental Protection (2d ed., Washington, D.C.: Resources for the Future Press, 2000).

[10] Kate Raworth, “Measuring Human Rights,” Ethics & International Affairs (Vol. 15, March 2001), 111-131.

[11] James Harrison, “Establishing a Meaningful Human Rights Due Diligence Process for Corporations: Learning from Experience of Human Rights Impact Assessment,” Impact Assessment and Project Appraisal (Vol. 31, June 2013), 107-117.

[12] Kendyl Salcito et al., “Assessing Human Rights Impacts in Corporate Development Projects,” Environmental Impact Assessment Review (Vol. 42, September 2013), 39-50.

[13] Walker, The Future, supra.

[14] Harrison, Meaningful Human Rights Due Diligence,” supra. The ICT sector’s Global Network Initiative Implementation Guidelines require its members to perform HRIAs when introducing new technologies, products or services that may jeopardize freedom of expression or privacy. http://globalnetworkinitiative.org/implementationguidelines/index.php

[15] UN Guiding Principles, Principle 17.

[16] James Harrison, “Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment,” Journal of Human Rights Practice (Vol. 3, July 2011), 162-187.

[17] UN Guiding Principles, Principle 17.

[18] On Common Ground Consultants Inc., “Human rights Assessment of Goldcorp’s Marlin Mine” (Vancouver, BC: On Common Ground Consultants Inc., 2010), available at http://csr.goldcorp.com/2011/docs/2010_human_full_en.pdf/.

[19] LKL International Consulting Inc., “Human Rights Impact Assessment of the Bisha Mine in Eritrea: 2015 Audit” (Montreal, 2015).

[20] Leonard Ortolano, Environmental regulation and impact assessment (New York: Wiley, 1997).

[21] Salcito et al., “Assessing Human Rights Impacts,” supra.

[22] Kendyl Salcito, Christopher Wielga, and Burt Singer, “Corporate Human Rights Commitments and the Psychology of Business Acceptance of Human Rights Duties: A Multi-Industry Analysis,” The International Journal of Human Rights (Vol. 19, 2015), 673-696.

[23] David Hulme “Impact Assessment Methodologies for Microfinance: Theory, Experience and Better Practice,” World Development (Vol. 288, 2000), 79-98.

[24] See, e.g., “Community-Based Human Rights Impact Assessment Initiative,” Oxfam America, available at https://policy-practice.oxfamamerica.org/work/private-sector-engagement/community-based-human-rights-impact-assessment-initiative/, and NomoGaia, “Work,” avaialble at http://nomogaia.org/work/.

[25] See, e.g., the corporate responses to the Misereor-funded HRIA of the Tampakan Copper Mine in the Philippines. ”Human Rights Impact Assessment of Tampakan Copper-Gold Project, Mindanao, Philippines,” Business & Human Rights Resource Centre, available at http://business-humanrights.org/en/human-rights-impact-assessment-of-tampakan-copper-gold-project-mindanao-philippines-0.

[26] See, e.g., Mark Wielga, Kendyl Salcito, and Elizabeth Wise, Paladin Energy Human Rights Impact Assessment: Kayelekera Uranium Project of Karonga District, North Malawi (Denver, CO: NomoGaia, 2010); LKL International Consulting Inc., Human Rights Impact Assessment of the Bisha Mine (2014); Kuoni Travel Holding Ltd., TwentyFifty Ltd, and Tourism Concern, Assessing Human Rights Impacts: Kenya Pilot Project Report, November 2012 (Zurich, Switzerland: Kuoni Travel Holding Ltd., 2012).

[27] Gillian MacNaughton and P. Hunt, “Health Impact Assessment: The Contribution of the Right to the Highest Attainable Standard of Health,” Public Health (Vol. 123, April 2009), 302-305; Gino Costa, “Comprehensive Review of Minera Yanacocha’s Policies Based on the Voluntary Principles of Security and Human Rights” (Denver, CO: Newmont Mining, 2009).

[28] Lloyd Lipsett and Mark Wielga, “Kick-Starting Human Rights Due Diligence: The Role of Human Rights Impact Assessment,” Mineral Law Series: Rocky Mountain Mineral Law Foundation, 2016, (no. 2, 2016).

[29] Alejandro Gonzales, Tamar Aryrikyan, and Benjamin Cokelet, “Evaluating the Human Rights Impact of Investment Projects: Background, Best Practices, and Opportunities” (New York: Project Poder, 2014).

[30] These include, among others, Nestlé, Newmont, BHP Billiton, Freeport McMoRan, Yahoo! and Microsoft.