Economic and Social Rights
Progress Report on our Human Rights Impact Assessment (HRIA) Project
By Diana Bronson
Coordinator, Globalisation, Governance and Human Rights
Human Rights and Investment: A new approach to a long-standing issue
When we launched a three-year project in 2004 to develop and test a human rights impact assessment methodology, we knew that the task ahead would not be simple. We had been examining the links between human rights and economic globalization for many years, and debates surrounding foreign direct investment were often at the forefront. Many of the controversies involved mining, oil and gas projects where the viewpoints of local communities, governments and corporations were and remain dramatically different. Yet we believed that a methodology to assess the human rights impacts of such projects within a collaborative framework could make a significant contribution to resolving these complex and reoccurring issues.
While we recognized that investment itself is not inherently good or bad for human rights, experience had shown us that if mining, oil and gas projects were to contribute to development, their human rights impacts would have to be addressed. Yet we had seen that those who make decisions regarding investment -- namely governments and companies -- generally fail to consider the impacts of their projects on human rights. We embarked on our project with the assumption that if governments looked more carefully at investments’ effects on human rights, people’s rights would be better protected. A missing step in this process was the development and implementation of a methodology for anticipating and documenting human rights impacts.
In order to draw the links between rights and investment, a nuanced analysis was needed, especially in the multifaceted settings surrounding many projects. Looking at human rights means looking at indigenous peoples’ rights, at gender-specific issues, at conflict, and at the different contexts in which investment takes place. At the heart of a human rights analysis is the importance of ”recourses,” or, in our case, the requirement that people who are affected by such projects are able to claim their human rights.
With these ideas in mind, our goal is to develop a methodology that helps groups, companies and governments assess human rights impacts of investment in a systematic and credible fashion. The human rights impact assessment (HRIA) methodology contains a number of steps but its basis is interviews with key actors: the government, the corporation, the workers and the affected community. In order to ensure that the methodology can be applied to a broad range of investment projects, a further goal is to test it with community groups and NGOs in five different cases and see what that process teaches us.
Five Case Studies
We invited groups to submit proposals for case studies to test our draft methodology and we selected five of the more than 40 proposals that were sent to us. Three of our case studies were in the extractive sector (in the Democratic Republic of the Congo (DRC), Peru and the Philippines ) and two others were in sectors that are not always associated with foreign direct investment: an information technology project in Tibet and a water privatization initiative in Buenos Aries. In collaboration with the partners who proposed these cases to us, and with very modest funds for the research, we set to work. Each case study adapted the draft methodology (a 75-page questionnaire, plus additional materials, as found on www.dd-rd.ca/hria) for its own needs, identified the rights that are at risk of violation and began the process of documentation. What follows is a very brief update on where those case studies are at now.
Philippines
The TVI-Pacific polymetallic mine in Canatuan on the island of Mindanao in the Philippines has been controversial for a number of years. In 2005, it even provoked a series of Canadian Parliamentary Hearings on Mining in Developing Countries and Corporate Social Responsibility, which has lead more recently to a series of roundtables organized by the federal government. The TVI mining site is located a conflict zone in which several different armed groups operate, raising many concerns around security and human rights issues. Over the years, there have been incidences of violence and a number of killings. In addition, the mine is located on land belonging to the indigenous Subanon people, who, according to Filipino law, hold the right to be consulted and to consent or not consent to decisions regarding land use.
The HRIA project in this case is being executed by a consortium of groups ranging from local indigenous peoples’ organizations and community groups living in the area to international NGOs that specialize in mining issues. Over the past few months, there has been an intensive series of consultations with the company, various government departments, the Subanon people and their representatives, and people who have been affected by the mine. The company, which has many long-standing disagreements with the groups sponsoring the study, has also undertaken to test the methodology itself and has hired a group of experts to assist it. While the reports are not yet in, this study illustrates the difficulty of conducting a human rights impact assessment once relations between the company and its various stakeholders have been allowed to deteriorate. Can a human rights impact assessment throw a new light on the issue?
Peru
Many of the issues raised by the Philippines case study are quite similar to those affecting our Peruvian case study on the Doe Run metallurgical facility in La Oroya. This smelter, built in 1922 , has been the source of much controversy. The extension of the smelter’s environmental license (known as a PAMA) has actually provoked a huge national debate on the role of mining in Peru ’s development and raised questions regarding whether or not the Peruvian state is equipped to leverage revenues garnered from mining investment to improve the rights of people, through, for example, health and education programmes. The facility has already been studied by academics, health experts, NGOs and others and many members of the community are highly suspicious of outsiders who come to inquire, which further complicates our research.
Our local partner is a small women’s organization, CEPEMA-Lulay, based in Huancayo, a nearby town. Their initial involvement in the issue originated with women living in the valley of the Mantaro River , who were concerned about pollution possibly emanating from la Oroya and its effect on their crops and the health of their families. CEPEMA-Lulay is specifically looking at how this smelter’s operations affect women’s rights and has undertaken a series of interviews and consultations to gather the views of various actors. In the meantime, Peruvian NGOs have been running an intense campaign to ensure that the environmental requirements of the plant are met and that the state adequately enforces its own environmental legislation. Doe Run is understood as a test case in Peru and, while the context in which the research is taking place is complex, we hope that the results of the study will be useful for other cases as well. We are particularly hopeful that this study will ensure that our indicators and perspectives are sensitive to gender equality issues.
Democratic Republic of Congo
The third mining-related case study is the SOMIKA metallurgical facility, in Katanga in the south east of the Democratic Republic of Congo. Again, the operation has been the subject of much controversy around the contamination of a local water source and labour rights issues (many of its materials are sourced from small scale miners who labour under difficult conditions), as well as its effects on health. Our main partner organization is an umbrella group of NGOs (CRONG-Katanga), with the collaboration of some of the trade unions and human rights groups who have been active on the case. There has been a training session on the methodology and research teams have already held a number of consultations with workers and the surrounding communities.
The HRIA study takes place at a time when the DRC is moving hesitantly towards elections and – possibly – a more legitimate government, bringing the issue of mineral resources and human rights once again to the forefront. The recent publication of the Lutundula Commission report highlighted many serious irregularities in both the application of the Mining Act and the people who are benefiting from the country’s enormous mineral wealth. The report recommends the renegotiation of many contracts that companies have signed with the Congolese government. These problems were discussed at length at a recent conference in Montreal organized by the Groupe de recherche sur les activités minières en Afrique (GRAMA), which is involved in the HRIA case study. Congolese civil society groups are anxious to contribute to the development of a methodology on the human rights impacts of mining operations in light of the fact this sector is critical to the economic and democratic development of the country.
Argentina
During the Menem presidency, municipal water services were privatized in Buenos Aires , the capital of Argentina . In 2001, when the financial crisis hit, the government was unable to muster sufficient foreign currency reserves to respect its contracts with foreign investors. As a result, it passed a decree calling for the renegotiations of all concessions on public services. Aguas Argentinas, the private company to whom the concession was allocated and which had considerable foreign investment (notably from multinationals Suez and Vivendi), decided to sue the government for breach of contract at the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID). The dispute provoked an interesting debate in legal circles insofar as there appeared to be a direct conflict between the commercial obligations of the government as defined in the contract with the company and its human rights obligations, specifically the right to water, as defined in international law. Furthermore, several organizations sought and obtained the right to intervene as amicus curiae (friends of the court) to the ICSID Tribunal.
Two of the petitioning groups, CELS and ACIJ (Centro de Estudios Legales y Sociales and the Asociación Civil por la Igualdad y la Justicia), responded to Rights & Democracy’s call for case studies. On the basis of our draft methodology and focusing specifically on the right to water, the research teams conducted interviews with all actors, including people living in 18 different neighbourhoods throughout the city. Questions were developed on different aspects of the right to water as defined in General Comment 15, as adopted by the UN Committee on Economic, Social and Cultural Rights, including its accessibility, its quality and its availability. The preliminary draft was being finalized just as the Argentinian government undertook the surprising and controversial step of re-nationalizing water services. It remains to be seen whether the state will be in a better position to guarantee the right to water now that it once again owns and manages the infrastructure on which this right is dependent. This case study provides an opportunity to look at a human rights impact assessment that focuses principally on a single right.
Tibet
The Tibetan case study examines the communications infrastructure that is provided by Nortel Networks for the controversial Gormo-Lhasa railway. This high-speed rail connection between China and Tibet , which is expected to be operational by July 1, 2006 , has been the subject of much criticism and debate over the increased flow of Chinese migrants it will bring to Tibet with few benefits for local Tibetans.
This research follows up on R&D’s 2001 report China’s Golden Shield, by Greg Walton, as well as some additional reports and meetings we have hosted. Our researchers have visited Tibet and made inquiries there about the general human rights context within which the technology is being deployed. The findings of our field mission substantiate many of the fears that others have expressed regarding the project. There is a reason for concern about the impact of the railway's communications infrastructure on a wide spectrum of rights, including freedom of speech, access to information, privacy, discrimination, self-determination and others.
In contrast to the other case studies, the Tibetan study is ex ante – that is, it anticipate impacts before they actually occur rather than seeking to document impacts that have already taken place. Ultimately, human rights impact assessment should be required before a project is undertaken. The Tibetan study allows us to see how the methodology and its application could function in practice. It is, however, complicated by the fact there are no local groups who could work openly on human rights in Tibet and the fact that the company we are specifically interested in (Nortel Networks) has not agreed to collaborate with our investigation.
Conclusion
In September, 2006, a meeting is planned where representatives from all five case studies will share the results of their work. The meeting will be an opportunity for participants to draw the methodological lessons from the five cases. The project has been a learning exercise for all participants and comes at a time where debates about human rights impact assessments are generating much attention. We hope what we learn can be usefully built into government policy debates and discussions regarding how to address human rights issues at development banks, as well as into the mandate and the final report of Mr. John Ruggie, the UN Special representatives on business and human rights.
