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Human rights due diligence: rethinking approaches to dissent

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Businesses are increasingly aware of their responsibility to understand and respect human rights and are developing human rights strategies in line with the UNGPs. With this in mind, a recent compilation of articles, ‘Navigating a new era of business and human rights’, raises interesting questions regarding how companies go about  addressing/dealing with global human rights challenges and systemic inequalities.

Of particular concern is the view expressed by some contributors that Human Rights Impact Assessments (HRIAs) and community engagement processes carried out by companies may sometimes actually adversely impact rights defenders and community engagement. In their opinion, this is due to the overreliance on risk management and managerial techniques (such as data collection, quantitative analysis, check-list based auditing) and, to some extent, the use of particular digital technologies. They argue that the complexity of community and individual grievances is being lost in the drive towards aggregated and quantitative analysis.

Additionally, some of the authors flag a danger that dissenting views within communities can be silenced  in order to achieve some  form of consent. For example, based on research in Chile, one of the authors described how a Supreme Court order to demolish a tailings dam was never enforced, owing to concerted company lobbying within the community, which it carried out after failing to secure a sufficient backing for its position from the community through the initial dialogue process.

Similarly, the same author alleges that the techniques used in human rights due diligence (HRDD) can in some cases, damage the social fabric of communities and exacerbate pre-existing conflicts, even when conducted in a collaborative way. Relying on another – and widely documented- example from Chile, he explains how community members who agreed to participate in a collaborative-HRIA and sign a Memorandum of Understanding, came to be seen as ‘sell-outs’ by their peers due to allegations of ‘signature-buying’, whilst those who refused to participate were also abused, thereby contributing the disintegration of the community’s social cohesion.

Critiquing the current orthodoxy

These might be isolated instances and it is important not to generalise from specific cases, but these articles provide an interesting critique of the current human rights due diligence ‘orthodoxy’ – as much as there is one – and do challenge the private sector, consultants acting on their behalf and other development actors to think of  means to improve due diligence techniques, to make them more participatory, more ‘empowering’, in ways that seek to avoid adverse unintended consequences

Based on our experience of designing and implementing human rights impact assessments and associated stakeholder engagement programmes in recent years, here are some thoughts and ideas that might be considered:

  • Strike a balance. Data and statistics are valuable tools insofar as they provide a basis for the identification and prioritisation of risks. They are also vital for engaging with the top management and raising awareness at a corporate level. The problem is not so much the use of data and metrics than over-reliance on them. They are concerned with the ‘broader picture’ and should be complemented and enhanced by qualitative and contextual information.
  • One size does not fit all. HRIA and community engagement processes need to be heavily contextualised and carried out, preferably, before the start of the business activity, or at least before activities ramp up considerably. Information and data obtained through desk-based research should be complemented by context-sensitive analysis and interviews, especially in conflict-affected areas or where climate change resilience is low.
  • Make clear commitments to seeking consent. Companies and those acting on their behalf should make clear policy commitments around engagement with communities, such as respecting the principle of Free Prior and Informed Consent (FPIC) where appropriate. They should also look at existing guidelines (the IHRB as just released a useful report) and raise-awareness at an executive and operational level about the importance of a rights- based approach in protecting rights defenders.
  • Allow space for dissent during the community engagement processes. Companies should recognise that listening to opposition voices will foster a climate of mutual trust with community members and contribute to the effective empowerment of the people affected by the project. It may also bring forward useful additional information. It will also avoid the risk of thinking that a full consensus has been achieved when there are still disagreements.
  • Be ready to have ‘the’ talk. Companies should acknowledge that community consent might not always be an achievable prospect, at least in the desired timeframe. Companies should therefore be able to have a genuine and open conversation, at least internally, about how comfortable they are in considering more difficult solutions such as suspending, delaying or cancelling a project if necessary consent cannot be obtained or opposition overcome. There is a point when social licence to operate is essential, understanding where that point is has consequences.
  • Availability of resources. Understanding and addressing human rights risks at a community level can be complicated and so it should be resourced appropriately in terms of staff and skills. Companies should make sure adequate governance structure and resources are available to address context specific situations, for example, setting up a high-risk countries committee, identifying key staff in certain high -risk geographies, establishing a clear escalation process for community issues.
  • Partnership is key. Multi-stakeholder initiatives can bring together companies and civil society organisations, and sometimes governments. They provide a wealth of opportunities for dialogue and effective partnerships to deliver on the ground. But they require commitment and resource. Progress is not quick.
  • Consider supporting local institutions. Consider supporting policy developments aiming to build the capacity of National Human Rights Institutions and their ability to act on human rights issues affecting businesses. Partnering with them for impact assessments could be an option as companies would benefit from their cultural sensitivity and knowledge of the local context.
  • Allow for informality. Formal processes are necessary and often mandatory but good working and personal relationships too can facilitate dialogue and enable a fair outcome, especially when dealing with grievances.