Indeed, experience shows that enterprises can and do infringe on human rights, especially where government is lax, and they are not paying sufficient attention to this risk and how to reduce it. Such projects can violate a spectrum of human rights, such as the right to a safe and healthy environment, a dignified livelihood, health, land, water, life and security, cultural identity, or to freedom of expression.
It is important to understand how private investment activity impacts human rights. The endorsement in 2011 of the United Nations Guiding Principles on Business and Human Rights and specifically the rapid uptake of human rights due diligence by business, investors and multi-stakeholder standards, has seen human rights due diligence emerge as a requirement for conducting responsible business. Exactly how business enterprises conduct human rights due diligence; however, varies widely.
While only a part of the human rights due diligence process, human right impact assessments (HRIAs) represent a key first step. An HRIA of a private investment seeks to identify the impacts that corporate activities are having, have had, or might have, on human rights. HRIAs can take various shapes and be led by different stakeholders, but should share the ultimate goal of protecting human rights and improving accountability among stakeholders.
Oxfam is a proponent of community-led approaches, so that those who are most directly affected — local communities — can intervene to enhance positive effects, avoid or mitigate negative impacts, and contribute to the fulfillment of human rights. At the same time, it is clear, that even community-based methodologies cannot achieve desired outcomes without company participation. Community-based HRIAs carry the potential to completely change the nature of the dialogue between companies and communities affected by their operations. If communities come with their own evidence-based analysis, companies will need to acknowledge communities´ perspectives and engage with them.
More information about the tool and approach that we are promoting can be found below.
On July 28, 2017 Oxfam and the Danish Institute for Human Rights hosted a learning webinar on community engagement and capacity building in the human rights impact assessment (HRIA) process. The webinar had three HRIA experts present on their experiences implementing different types of HRIAs in the field. For a deeper dive into the webinar, check out the presentation as well as the agenda and speakers' bios.
The Need for a Community Approach
A number of Human Rights Impact Assessment (HRIA) tools have been developed by industry bodies and companies, but they are all top-down tools, managed by the companies, focused largely on corporate risk, and are weak on transparency, accountability and stakeholder engagement. They are not designed as participatory processes to empower communities as rights holders. Too many investment projects are carried out with no significant information, consultation, or safeguards. To the extent that impact studies are done, they are implemented from the top down, controlled by interested parties and provide little real accountability.
In general, company-led HRIAs start with due diligence concerns, and focus on risk mitigation for the companies. This distinct – and valid – purpose is unlikely to be satisfying from the standpoint of people affected by company activities, and is thus likely to generate different proposals and incentives for action. The focus on due diligence will naturally emphasize company business risks over human rights for communities.
HRIA approaches that shift the focus away from safeguarding the rights and interests of affected communities towards a risk management focus for the company not only has disastrous implications for communities, but can also lead to bad business outcomes. A reliance on existing impact assessments can leave the company exposed to a host of hidden and nascent human rights issues that may develop into significant human rights risks (including legal, financial and reputational) for the company, its investors and its shareholders in the future. A community-led approach captures the human rights concerns of individuals and groups whose voices may otherwise be overlooked by company representatives. Allowing community participants to co-own the process will ensure greater buy-in from the community in terms of findings and outcomes. It will also increase the likelihood of key community stakeholders participating in the process and thus identifying the true human rights impacts prioritized by those members.
A community-based human rights impact assessment approach thus offers an alternative path, allowing affected communities to drive a process of information gathering and participation, framed by their own understanding of human rights. Communities can engage in solving human rights threats by working with NGOs, companies, and governments on a more equal footing. By starting with perspectives of affected people, the HRIA focuses on their concerns and their aspirations for human rights realization.
Oxfam is intent on having this alternative and bottom-up approach recognized by proponents of the United Nations Guiding Principles on Business and Human Rights, human rights advocates, companies, and governments. At the global level, Oxfam seeks to build market demand for community-led human rights impact assessments, and to build and engage a network of knowledgeable organizations to support affected communities in conducting and engaging around community-led HRIAs. Doing so will start a path that ensures adequate transparency, participation and accountability for major investment projects.
For further reading, see: Community-Based Human Rights Impact Assessments: Practical Lessons, Human rights impact assessment in practice: Oxfam's application of a community-based approach and Community voice in human rights impact assessments
Getting it Right Tool
While various tools are at the disposal of companies for assessing risks related to their investments, very few are designed specifically to help communities affected by investment projects (and their support organizations) to identify the impacts of private industries on human rights. Often disempowered by governments and companies, the concerns of communities affected by private investments are commonly underrepresented. Within the growing constellation of institutions working on business and human rights, there is a very public recognition of the need for more Human Rights Impact Assessment (HRIA) tools and a way for community stakeholders to engage more effectively.
Oxfam is working with its network of communities, practitioners, and advocates to increase awareness and use of a powerful tool, known as Getting it Right, created by the Canadian organization Rights and Democracy, . This tool addresses both of these demands.
The Getting it Right tool is a dynamic participatory approach for analyzing the human rights impacts of private and public foreign investments. It enables communities and the organizations that support them to identify human rights impacts, propose responses, and engage government and corporate actors to take action to respect human rights. The tool focuses on local communities as experts and advocates. Getting it Right puts an incredibly powerful tool in the hands of communities. A distinct feature of the Getting it Right tool is its ability to engage all willing stakeholders at a profound level. To begin, the tool starts with educating communities about their rights and translating the language of human rights into the language of needs.
Oxfam and other NGOs, community organizations, and communities have completed successful pilots using Getting it Right as an accessible, practical, and interactive guide. The challenge now is putting this tool into the hands of those on the front lines of large-scale private investment.
Between 2009 and 2011, Oxfam piloted, with partner organizations, a community-based human rights impact assessment (HRIA) tool, Getting it Right, which was created by the Canadian organization Rights and Democracy.
- Migrant and undocumented farmworkers, USA: In partnership, the Farm Labor Organizing Committee (FLOC) and Oxfam used the Getting it Right tool to study the tobacco’s industry’s impact on the human rights of farm workers in the fields of North Carolina. Read the report, A State of Fear. FLOC used the assessment process to complement ongoing campaign efforts to improve working conditions of tobacco pickers for RJ Reynolds suppliers. Many workers are forced to live in substandard housing, earning next to nothing for long hours of grueling work, while facing daily threats of pesticide poisoning, heatstroke and repetitive stress injuries. The process opened up additional dialogue between FLOC and the company. FLOC President Velasquez and top Reynolds executives are in dialogue to establish a landmark grievance mechanism for workers in their supply chain. FLOC continues to push for freedom of association to accompany the grievance mechanism in order for it to be effective. A most recent development was a fact-finding mission to North Carolina tobacco fields led by two British Members of Parliament. The report, “A Smokescreen for Slavery: Human Rights Abuses in UK Supply Chains,” was released in November 2014 and can be found here. Other information about the case: http://politicsofpoverty.oxfamamerica.org/2014/05/reynolds-north-carolina-tobacco-workers-deserve-decent-workplaces/ (May 2014); http://www.oxfamamerica.org/explore/stories/speaking-up-for-north-carolinas-tobacco-pickers/ (December 2012).
- Guarani indigenous communities, Bolivia: From 2007-2008, Oxfam’s partner the Centro de Estudios Aplicados a Derechos Económicos, Sociales y Culturales (CEADESC) supported communities in a study, using Getting it Right, to assess the impact of a natural gas exploration by Total E&P in five communities on the ancestral territory of Muyupampa Guaraní People in the Luis Calvo province, Chuquisaca Department of Bolivia. The assessment focused on four human rights: the right to free, prior and informed consent, the right to reparations of damages, the right to work and the right to water. The final report made several recommendations to Bolivian state institutions as well as Total E&P. CEADESC will be conducting a follow up study in early 2015 to understand the continued impacts of the natural gas project on the Muyupampa Guaraní communities. While the leadership of Total E&P has recently undergone a transition in Bolivia, Oxfam France and CEADESC seek to engage representatives in the company headquarters in France in a dialogue on improving company practices in the affected communities. At the same time, the follow up assessment team will also be evaluating the company’s policies according to the U.N. Guiding Principles on Business & Human Rights and producing recommendations on how to improve company alignment with these principles.
Read the report (Spanish)
Link to the follow-up rapid assessment involving new Guarani communities
In April 2014, Oxfam launched a call for proposals to partner on the implementation of an HRIA. Over 60 organizations across four regions expressed interest in supporting affected communities in conducting and engaging around HRIAs. The following industries were represented: extractives, health, aquaculture, agriculture, biofuels, forestry, energy, security, transportation, and manufacturing.
To carry out an unbiased, cross disciplinary review, we established an internal advisory committee to vet the proposals. The advisory committee used specific criteria to guide their decision making, based on a combination of criteria, such as clarity of objectives, relevance of the project to the applicant’s work and theory of change, development impact, gender impact, community relations, organizational experience and capacity, the project's sustainability and scalability, and alignment with Oxfam's work and mission.
Between 2014-2016, Oxfam supported these two HRIAs. Below you can find links to their final reports.
- Comissão Pastoral da Terra – Regional Nordeste II (CPT NE 2), Brazil: The project seeks to hold one of the largest sugar producers in country, the multinationals that purchase from it, and the Brazilian state, accountable for the adverse social and environmental impacts of its corporate activities in the region Pernambuco, located in the northeast of Brazil. This area of Brazil has a history of human rights violations. The project will research the key impacts and human rights violations suffered by artisanal fishermen and fisherwomen community of River Estuary Sirinhaém. This HRIA came out of Oxfam’s Behind the Brands campaign research linked to land rights in the sugar sector. Currently Coke and Pepsi are conducting impact assessments of their sugar supply chain in Brazil so this particular case with CPT is a critical one to identify lessons between community-based and company-based HRIA approaches. You can access the final report in English and Portuguese for further reading.
- El Observatorio Ciudadano, Chile: The HRIA will focus on the impacts of two large scale mining projects on the rights of the Diaguita Agricultural Community of Los Huascoaltinos (CADHA). The Diaguita are a legally recognized indigenous people in Chile. The CADHA is composed of 260 families, comprising about 1,200 people, descendants of the Pueblo Indians of Huasco Alto and most are small farmers and herders of sheep and goats. They had declared their land as a natural reserve, or under indigenous territory conservation. The first project, Pascua Lama, involving Barrick Gold, is a binational mining project of Chile and Argentina. The mine site is under construction but the project has been stalled since July 2013 by the courts due to environmental breaches. El Morro, involving Goldcorp and New Gold, is currently undergoing environmental assessment and consultation. Both projects seriously affect the hydrological system of Diaguita’s territory and could endanger the economic, social and cultural rights of the community. Eight more projects of similar size are also foreseen. Only environmental impact assessments have been done in country to date. The HRIA carried out is consistent with the work done so far by Observatorio, which advocates for indigenous rights in the territory. For further reading, you can see the executive summary in English or the final reports in English and Spanish.