ICT and Human Rights: Towards a Conceptual Framework of Human Rights Impact Assessments

Abstract

The practice of developing Human Rights Impact Assessments (HRIA) has a rel atively recent history and is carried out by individuals from diverse backgrounds without a clear consensus on what drives it, its methodology, or even its core goals. While HRIAs emerged as one of the tools recommended by the United Nations for human rights accountability in the business world, particularly from the framework and guiding principles of John Ruggie, their effectiveness and modes of implementation are in dispute.

Understanding the history of the origin of HRIAs, as well as knowing their main critics and defenders, is useful to frame the practice in the context of a problem that does not have a definitive solution: that of the link between transnational compa nies and the human rights of those populations affected by their activities. This link is complex and faces various dilemmas. So far, proposals have wavered between promoting binding treaties and voluntary self-regulatory business initiatives. The use and promotion of HRIAs imply, in part, the triumph of this second model.

This work is motivated by having observed the deployment of HRIAs in the ICT sector in recent years. As a research center committed to freedom of expression, human rights impact assessments seem relevant to an industry that decisively influences the flow of information in a modern and interconnected society. This industry includes telecommunications companies that are in charge of infrastructure development, those that provide interconnection services, and those that offer home connections. Together, these companies form a dynamic and relevant industry whose actions have a decisive impact on rights that are central to the functioning of democratic institutions, such as freedom of expression and the right to privacy. ICTs, then, are great candidates to deploy corporate practices that evaluate the impact of their commercial activities on the rights of citi zens. The global nature of these companies also justifies this type of evaluation: they tend to consider how local contexts affect business practices and how these affect—in turn—the people whom their services are intended to serve. The work proceeds as follows. The first part traces the history of the relationship between business and human rights, with a special focus on how the United Nations approached the issue. Two models clashed: one sought to establish a binding treaty with legal obligations and responsibilities at the head of transnational companies; the other sought to create a voluntary protection framework, based on collabora tion and the development of principles and good practices. The second model is the one that has advanced the most and has received the most global support from both corporations and states, first with the adoption in 2000 of the United Nations Global Compact (UNGC) and then with the framework of Protect, Respect and Remedy promoted by the Secretary-General. In the second part, three different but related trends are reviewed, which seem to have impacted how HRIAs are today: environmental laws, those that establish civil liability for what local companies do abroad, and—more recently—that impose reporting obligations or due diligence. These legislative trends of domestic law present a different model of complianceoutside of international human rights law and can be seen as a response to the weaknesses of the current model at the international level or to the impossibility of obtaining a binding treaty. The third part presents the general guidelines of what, according to established practice, an HRIA should be. The fourth part analyzes the potential of HRIAs for the ICT sector and explains why it makes sense for this sector to pay attention to the impact of its services and products on human rights. A brief provisional conclusion is offered and a future research path is outline