Preface

Acknowledgements

Executive Summary

PART1 PROJECT OVERVIEW

Introduction

The Challenge: Addressing the investment and human rights nexus

The Response: Fitting the approach to the challenge

The Experience: How it worked in practice

Lessons Learned

Conclusion

PART2 CASE STUDIES

Philippines

Mining a Sacred Mountain: Protecting the human rights of indigenous communities

Tibet

Tracking Dissent on the High Plateau: Communications technology

on the Gormo-Lhasa railway

Democratic Republic of Congo

Toxic Cocktail: Protecting human rights amidst administrative confusion

Argentina

The Privatization of Water: Unequal access

Peru

Doe Run Peru in La Oroya: The impact on women’s rights

Additional Reading Suggestions

Rights & Democracy launched a three year project in 2004 to develop and test a draft methodology for human rights impact assessments of foreign investment projects. This report presents its results. The project focused its research at the community level and selected five case studies to test the methodology and accompanying research guide. A revised methodology based on lessons-learned from case study process, will be forthcoming in 2008.A human rights impact assessment emphasizes the obligations of states as the primary duty-bearers with respect to international human rights law. It also recalls the corresponding responsibilities of non-state actors to respect human rights, not to benefit from violations of human rights and not to be complicit in human rights violations. In essence, a human rights impact assessment measures the gap between the legal standard and the actual practice. A human rights impact assessment incorporates basic human rights principles. As such, it requires the meaningful participation of the rights holders; the accountability of duty bearers; transparency in both process and content; and special attention to vulnerable groups and discriminatory practices. A human rights impact assessment operates on the assumption that all human rights, including civil, political, economic, social and cultural, are inter-related, inter-dependent and indivisible. This human rights impact assessment project comprised three pillars:

A Ten-Step Methodology

The ten-step methodology is summarized in four general categories: preparation of the case study; application of the research guide; report preparation; and follow-up.

A Research Guide with Indicators

The research guide provides questions specific to each human right. It is designed to generate two types of data: a general portrait of how human rights are protected in the national context; and the actual impact of the investment on the enjoyment of those human rights.

Five Case Studies

Based on criteria established by the project’s international advisory committee, five case studies were selected from 46 proposals submitted to Rights & Democracy in 2005. The case studies are: mining in the Philippines (TVI Pacific Inc., Canada); telecommunications in Tibet (Nortel, Canada); mineral refining in the Democratic Republic of Congo (Somika SPRL, Canada); water and sanitation services in Argentina (Aguas Argentinas, France, UK, Argentina); mineral refining in Peru (Doe Run Resources Corp. USA).

Lessons-learned

The case study research teams concluded that the draft methodology and research guide were useful tools and that they provided valued assistance throughout the assessment process. However, in each case study example, the local situation and other influencing factors required that the methodology be adapted. At the conclusion of the research, the case study teams made a series of recommendations to Rights & Democracy based on their experience. The recommendations include:

• Integrate more capacity building

The case study experience demonstrated that the need to reinforce local capacity continues throughout the course of the human rights impact assessment. This will require that sufficient time and resources are provided at the assessment design phase and that training and human rights education are more carefully integrated into the work plan.

• Place greater emphasis on accompaniment

Communities and local research teams require reliable moral and professional support throughout the course of the human rights impact assessment process and its follow-up. This is important for capacity building, but also for the personal security of the community members and researchers themselves.

• Provide a more realistic budget and time allocation

Methodologies for human rights impact assessments should include a time and budget guide as part of the initial assessment process. Such a guide would flag potential costs that might not otherwise be considered and would provide the accompanying organization and research team members with a better estimate of the amount of time they require for each stage of the assessment process.

• Revise the methodology and research guide

The ten-step methodology should be broken down into smaller, better-defined tasks that provide explicit guidance on implementation. Some elements of the methodology were not sufficiently developed, such as how to structure the final reports. There is a tension between producing a user-friendly research guide and a comprehensive research guide. There should be a simpler way of selecting questions appropriate to each case study, perhaps by developing a digital tool.

The Case Study Reports

In three cases (Argentina, Peru, Philippines) the research teams were able to link human rights impacts directly to the investment project. In the two others (Democratic Republic of Congo and Tibet) enough information was produced to merit additional study and action.

Philippines

In 2005, the Canadian company TVI Pacific Inc. officially opened the Canatuan mine on the island of Mindanao in the Philippines. The mining operations displaced many families; divided the local indigenous people, known as the Subanon; deprived thousands of small-scale miners of their livelihood; and negatively effected rice farmers and fishers living downstream because of increased levels of sediment and metals in local rivers and creeks. One of the most controversial aspects of the mine is that it is located on the peak of Mount Canatuan, which the Subanon living in the area consider as sacred. The research team focused heavily on the rights of Indigenous People as described in the UN Declaration on Indigenous Peoples. The central finding of this report is that the investment has had a negative impact on the ability of the Subanon to enjoy the human right to self-determination, to human security, to an adequate standard of living, to adequate housing, to work and to education.

Tibet

In March 2005, the Canadian company Nortel announced it had entered into an agreement with China’s Ministry of Railways to provide a digital wireless communications network for a new railway being built in Tibet. The technology, called the Global System for Mobile Communications for Railways, is a key component in the railway’s communication system. Railway communications systems are themselves part of China’s Golden Shield Project, an all-encompassing surveillance network that monitors and controls the flow of information and people. The case study is ex-ante; it looks at the potential future impacts of the communications technology on the Tibetan people’s rights to privacy, to security of the person, to freedom of expression and to self-determination. The case study raises the issue of corporate complicity within public-private partnerships, particularly in non-democratic states where human rights violations are systemic. It also looks at the human rights obligations of the company’s home state with regard to the export of dual-use technology.

Democratic Republic of Congo (DRC)

In 2001, SOMIKA, a processor of heterogenite (copper and cobalt), set up operations in the Katanga region of the DRC. The company processes ore from various neighboring sites where extraction is contracted out to artisanal miners. SOMIKA’s installations are located on a major water table that supplies drinking water to 70% of the population of Lubumbashi. There is a risk that the water could potentially be contaminated by SOMIKA’s operations. In addition, there are persistent concerns about discriminatory liring procedures and working conditions including health and safety risks that have not been adequately addressed. This case study remains incomplete. A number of difficulties were experienced during the research process and therefore it is not possible to present definitive conclusions of the impact assessment here. Nevertheless, preliminary results indicate that there is reason for concern that violations of labour rights and the rights to water and health may have occurred as a result of the investment.

Argentina

In 1993, the government of Argentina created what was then the largest privatized water concession in the world when it awarded a contract to Aguas Argentinas S.A., a consortium of European and Argentine companies, to operate the water and sewage systems in Buenos Aires and surrounding municipalities. The research team studied the performance of both Aguas Argentinas and the Republic of Argentina over the life of the contract, which was terminated by the Argentine government in early 2006. This case study is the only one in the project that focuses on one specific human right — the human right to water. The conceptual framework of the report draws heavily upon General Comment 15, an interpretive statement issued by the United Nations about the human right to water. The central finding of this research is that the public-private partnership had a negative impact on the ability of the people of Buenos Aires to enjoy access to sufficient, safe, acceptable, accessible and affordable water.

Peru

In 1997, Doe Run Peru S.R.L. purchased a state-owned smelter complex in La Oroya, a Peruvian town in the Andes Mountains. The complex, in operation since 1922, produces copper, lead, zinc, silver, gold, and other products, and emits a toxic cocktail of pollutants. In 2006, La Oroya was named one of the 10 most polluted areas in the world. The case study looks in particular at the impact of the smelter complex on the human rights of women, including the human right to health, housing and water, as well as the human right to work, to information, and to freedom of expression. The key finding of this case study is that the operations of Doe Run Peru, and the failure of the state to take appropriate steps, have had a negative impact on the ability of the people of La Oroya, especially  women, to enjoy their human rights.