BRIEFING NOTE 2 - IDENTIFY
Identify human rights risks and impacts
Contents
IIIIIIII 1 Concept of risks and impacts on human rights
IIIIIIII 2 Identifying human rights risks and impacts
IIIIIIII 3 Saliency of human rights risks
IIIIIIII 4 Understanding the root cause(s) of the actual and potential impacts identified
IIIIIIII 5 Consideration about vulnerable groups
IIIIIIII 6 Challenges and recommendations
IIIIIIII 7 Checklist
IIIIIIII 8 Library of Tools
Objective of the briefing note
This section will cover the steps associated with identifying and assessing the risks of human rights violations, as well as understanding their impacts on people, communities and the environment.
1
||||||||
Concept of risks and impacts on human rights
In order to guarantee the protection and promotion of human rights, it is essential to identify the adverse impacts on human rights, whether potential (also known as risk) or actual, resulting from your activities or business relations.
These impacts can be manifested in various ways and affect individuals or groups in different ways, especially vulnerable groups, such as often women, traditional communities, indigenous populations, and human rights defenders who, in many cases, may also present other layers of vulnerability (e.g. a human rights defender may also be a member of an indigenous community). To this end, it is essential to identify the potential impacts that threaten human rights, as well as the specific impacts on people, communities and the environment.
Within specific groups (e.g. women, black people, trans people) there may be "subgroups" in conditions of greater vulnerability, often due to additional vulnerability factors, who present a different experience of risk. For example, women tend to face more harassment and discrimination than men. Migrant women, lacking a support network in the country of destination and unaware of cultural and linguistic norms, tend to experience a greater likelihood of forced labour than non-migrant women.
2
||||||||
Identifying human rights risks and impacts
The identification of human rights risks generally goes through the following stages:
A. Analysis of the geographical context, for an initial understanding of the risks at national and subnational level in the context of the company's operations and scope of its supply chain, including existing cultural aspects, the structure and organization of the surrounding community, social norms, livelihoods present there, distribution of land use, among other factors.
Possible sources of information:
Desk-based research of secondary sources, such as reports on specific human rights issues in the country or sector.
Example: Observatory for the Eradication of Slave Labour and Human Trafficking in Brazil, Profile of the main actors involved in rural slave labour in Brazil prepared by the ILO, Amnesty Report on Human Rights in Brazil, with emphasis on the sugarcane sector and the rural sector.Consultations with stakeholders and relevant actors, to identify recurring issues in the sector and evaluate mitigation, prevention and/or elimination measures taken.
Example: government bodies (municipal, regional, federal) related to the sector (Labour inspection portal), such as the General Secretariat of the Presidency of the Republic responsible for coordinating the National Commitment to Improve Working Conditions in Sugarcane; workers' unions, the São Paulo Federation of Agricultural Workers or the Federation of Rural Workers of Pernambuco; local communities; organizations that support specific groups of vulnerable people, such as FIAN Brazil, the Workers' Health Reference Centre (CEREST), and InPacto.
Review of existing grievances or reports of alleged human rights violations in the sugar sector in municipalities or regions where the commodity is produced. If risk identification is focused on the operations of a specific company, the focus should be on existing grievances or reports of alleged human rights violations where the company operates; whether its business relationships are or may be involved in human rights violations; or whether there are other companies in the region with human rights issues that may be related to the company in some way.
Below is an example of an analysis that can be produced by the company, coinciding with the main elements of the company's human rights policy, its size, and operational context[1], among others.
National context: In the case of the sugarcane sector, there is plenty of literature on how it has been established since the colonial period and its expansion in different Brazilian regions based on large estates. Today, the regions where most sugar is grown are the Northeast, Mid-West, and Southeast, each with its own particular characteristics.
Sugarcane industry in Brazil: The sugarcane industry in Brazil plays a significant role in the country's economy, being one of the main producers and exporters of sugar.
Risks associated with geographical regions: Although not an exclusive characterization, the form of production, inspection and legal regulations influence the risks related to human rights on a regional basis, especially in the southeast-south and northeast regions of the country.
In the centre-south region, for example, due to the high level of mechanization and adoption of advanced technologies in sugarcane production, the highest incidences of human rights violations are more related to poor working conditions, inadequate pay, and lack of access to basic labour rights.
In the Northeast, on the other hand, due to the high demand for manual labour, there is a high incidence of child and adolescent labour on sugarcane plantations, as well as the exploitation of labour through forced labour practices.
In the Southeast, especially in the states of São Paulo and Minas Gerais, due to the ban on burning and the predominance of mechanized cutting during the harvest season, there is a shortage of local labour for the harvest, resulting in the seasonal migration of workers from other regions and immigrant workers. This migration often leaves these workers in a very vulnerable situation, paving the way for human rights violations to occur.
Because there are so many temporary workers hired during the harvest, some producers fail to provide adequate health and safety structures, do not control working hours, or do not formally hire workers, among other risks and impacts on their rights.
In summary, the human rights due diligence process can be a useful tool for identifying and understanding risks and their respective root causes, in order to inform the appropriate actions to be taken by companies, individually and through sectoral collaboration.
B. Analysis of the operational context, for an initial understanding of issues specific to the production of the raw material in question and the structure of the sector, including existing systems and initiatives, supplier and labour profiles (e.g. temporary, permanent, immigrants), commonly applied labour practices, etc.
Possible sources of information:
Internal documents of the company and their suppliers.
Example: 1st, 2nd or 3rd party audit reports; internal procedures on labour, health and safety issues; risk analysis reports; existing policies; expansion plans, etc.
Grievances registered through the grievance mechanism in order to identify the existence of historical patterns of complaints related to the company and its business relations, and in its sector or region of operation.
Consultation with stakeholders and rights holders.
Example: workers from different categories (with fixed employment contracts, temporary workers, outsourced workers); workers' unions and federations representing the different categories mentioned; leaders of neighbouring communities; leaders of indigenous peoples and traditional communities; producers' associations and employers' unions; small producers; human rights defenders; etc.
Field visits. Even if they are led by technical or agricultural teams, they can be adjusted to properly identify and assess human rights issues in the company and its supply chain. These visits make it possible to:
Observe the company's facilities and working conditions. For example: living structures on the work sites; or whether there are children or young people carrying out dangerous activities.
Conduct interviews with some relevant actors, considering adequate time and resources for this, including a safe and appropriate space.
C. Identification of potentially affected people. This stage consists of understanding which rights holders are most at risk of suffering human rights abuses in relation to the risks identified in the sugar sector in each producing region. If the identification of risks is focused on the operations of a specific company, the identification of rightsholders needs to be related to that company. It is also an opportunity to begin to understand who the relevant actors to be involved in the process and what would be the best approach for their engagement.
Based on national and international institutional references such as Brazil's Consolidation of Labour Laws (CLT), the UN Universal Declaration of Human Rights, the ILO Conventions and Due Diligence legislation, the most frequent human rights risks to workers and communities in the sugarcane sector in Brazil are the following:
✓ Child labour
✓ Labour conditions (hiring, working hours, payment)
✓ Health and safety (accommodation, training, access to drinking water, accidents, living area, access to free personal protective equipment)
✓ Harassment/human trafficking/torture and cruelty
✓ Gender discrimination and abuse against women
✓ Freedom of association and collective bargaining
✓ Free, prior and informed consent (for the use of resources belonging to indigenous and traditional communities)
✓ Right to land and to natural resources/protection against illegal eviction
✓ Contamination of soil, water and air; emissions of polluting gases (practices such as burning straw, in addition to releasing greenhouse gases, can also cause respiratory problems for workers and surrounding communities); excessive water consumption
Below are some examples of rights-holders who may be at risk of human rights abuses in Brazil's sugarcane sector:
Temporary workers employed during harvesting, planting or other productive activities
Migrant workers
Young workers
The local community, living in the vicinity of the mill and/or production areas
Communities that use environmental resources in common or that may be affected by the use of water or soil resources
Indigenous and traditional peoples and communities who may be impacted by the activities of the mill and its suppliers
Human rights defenders
To file a complaint or find out how to report work analogous to slavery or child labour, visit: https://ipe.sit.trabalho.gov.br/
[1] Companies must adapt this type of analysis according to their geographical and operational context of operation.
3
||||||||
Saliency of human rights risks
Once the salient human rights risks and impacts have been identified and understood, the next step is to determine their level of saliency, considering their level of severity and the likelihood of them occurring in the operational context of the company and their suppliers.
The severity of the risk is assessed based on three different factors:
Scope: how widespread is the harm?
Scale: how serious is the harm?
Irremediability: can the harm be put right?
For a risk to be considered severe, the significant presence of only one of these three factors is enough.
Likelihood, on the other hand, indicates the chance of the risk occurring in different situations. It should only be considered once the severity considerations have been taken into account.
In determining the saliency of human rights risks in the production of agricultural commodities, we can consider, for example, the characteristics of different stages of production and supplier profiles, among other factors.
In which stages of the commodity's production are risks more or less likely to occur?
Consider the type and quantity of labour needed for each production stage.
Example: activities with a higher incidence of manual labour and hiring third parties may indicate a greater likelihood of inadequate working conditions, and even forced labour.Consider the level of exposure to risky activities at specific stages of production.
Example: incorrect application of agrochemicals can have significant impacts on the health of workers (due to improper use of PPE) and surrounding communities (through contamination of air, water, and soil)
Which existing supplier profiles are more or less likely to be at risk?
Consider whether the supplier is located in a high-risk geographical region for human rights.
Example: regions with a history of agrarian conflicts; allegations of forced or child labour, etc.
Check the maturity of their management system.
Example: do they have a human rights policy, do they establish terms of conduct with their suppliers, do they have a structured grievance mechanism, do they carry out some kind of human rights check on its suppliers and outsourced services, etc.
Understand whether the supplier uses manual labour or migrants, hires outsourced services, among other factors.
In the context of sugarcane production in Brazil, we can consider some of the following risk factors to determine the saliency of risks and impacts on human rights:
THE WAY IN WHICH LABOUR IS HIRED:
Employees hired by mills and suppliers tend to have more established labour relations, complying with national and local legislation, and their workers belong to unions and associations.
Workers outsourced through service providers, agents or other intermediaries may be subject to greater human rights risks, due to greater difficulty in verifying the labour and hiring conditions to which they are subjected.
Some service providers choose not to comply with the contractually established standards of respect for human rights for various reasons. For example, the need to quickly replace temporary labour (in the event of worker absences or leave) to deliver the service within the contractually agreed timeframe can result in informal or irregular hiring of workers.
Outsourcing, and even fourth-party outsourcing of the production chain, makes it even more difficult to control these providers and can represent a significant challenge to the proper implementation of human rights commitments.
Migrant and immigrant workers are vulnerable groups who are more likely to be subject to precarious housing conditions, inadequate working and hiring conditions, and language limitations (especially for immigrant workers), which can make it impossible for them to access grievance mechanisms, for example.
The presence of workers' associations and unions is also an important factor to consider. In places with a stronger presence of these actors, workers tend to have access to better working conditions and are able to raise their demands more effectively.
LABOUR REQUIRED AT DIFFERENT STAGES OF PRODUCTION
The amount and type of labour required can increase the likelihood of risks to people, especially in short hiring periods or timeframes. Manual activities generally require a larger number of people to be hired. In these cases, there is a greater chance of informal or irregular hiring of workers, inadequate provision of facilities in the field (rest and eating areas, access to drinking water, sanitary facilities), inadequate housing conditions for temporary workers and their families, among other issues.
In the Southeast of Brazil, for example, where sugarcane harvesting is almost 100% mechanized, the incidence of human rights impacts can be more significant in the planting stages, where there is a greater need to hire temporary rural workers, mostly done through intermediaries and service providers. In the Northeast of the country, there is still the possibility of harvesting sugarcane by hand, including burning, which can result in damage to workers' health (especially when there is a lack of supply and incorrect use of PPE) and air contamination in the vicinity of the mill, impacting the health and well-being of neighbouring communities.
In addition, some production processes may not employ a large amount of labour, but have a higher potential for severity. The sugarcane planting stage, for example, includes the application of chemicals that are harmful to human health. The lack or incorrect use of PPE can cause serious harm to workers. Additionally, the potential for contamination of soil and watercourses is much higher, and can affect surrounding communities and small producers.
THE SUPPLIER'S KNOWLEDGE OF AND ENGAGEMENT WITH HUMAN RIGHTS ISSUES
The supplier's lack of knowledge, or even the importance they give to human rights issues, is an important consideration when characterizing risks. For example, the lack of hygiene and cleaning facilities specifically for women may be due to the lack of importance a supplier gives to the issue, rather than a lack of resources to make them available.
SIZE AND STRUCTURE OF THE SUGARCANE SUPPLIER
It is important to differentiate between suppliers based on their size and structure. Larger mills tend to have more resources available to invest in access to technology, mechanized processes, and the use of more skilled labour, as well as stricter requirements in terms of sustainability and human rights, due to demands from international export markets (such as Europe or the United States), reputational risk issues, and pressure from investors, civil society, clients, or other actors.
The saliency can be represented using a heat map and will depend on the operational context and structure of the company and sector, varying as the risks and impacts are addressed. Below is an example:
Prioritization of risks and impacts
When prioritizing impacts to take action on, the risk to people should always come first. With this in mind, it is important to consider, in the following order:
o The severity of the impact or those for which a delayed response would render them irremediable
o The likelihood of an impact generating greater harm within the context in which it was identified or being/becoming recurrent
o The ability of business partners to manage risks and impacts efficiently and effectively
o The availability of company resources (human, financial, etc.) to address the issue
Figure 1: Heat map of human rights risk saliency for the sugarcane sector in Brazil’s southeast region
• Red: more severe and likely that need to be addressed first.
• Dark yellow: intermediate levels of severity and likelihood. These are the risks that should be addressed later, as resources become available.
• Light yellow: low severity and low likelihood of occurrence. These are the risks that the company can leave for a later date, depending on the resources available.
4
|||||||||
Understanding the root cause(s) of the actual and potential impacts identified
Once the risks and the people most affected have been identified, it is important to understand the root causes of the main risks identified. To do this, the company needs to identify underlying factors that contribute to the risk or to the occurrence of human rights abuses.
By conducting a root cause analysis, the company will be able to implement the necessary actions to address the root causes and not just the immediate cause of that impact. It is important to stress that the same impact usually has more than one root cause. Proper treatment of the impact requires visibility of these different causes. It is therefore necessary to define actions that seek to investigate them further, bringing the affected or potentially affected parties into the process. If the root cause analysis is not conducted properly, the actions to remedy the impact and prevent or mitigate future damage may not be effective.
One of the techniques widely used to identify the root cause is the "Five Whys"[2] approach, which basically consists of asking a series of "why?"[3] questions until the root cause of a problem is identified. The example below will help you better understand this technique:
In summary, root cause identification involves the following steps:
Documenting the event/problem, reporting the facts
Formulate a statement of the problem to be addressed
Identify and collect data and statements from those involved or affected
Develop a timetable for the event
Adopt a root cause analysis technique, such as the "Five Whys"
Based on the potential causes identified, plan and implement actions that address the root causes of the problem, prioritizing actions based on the prioritization criteria presented earlier
If the monitoring process concludes that the actions do not work , repeat the steps and analysis and rework the action plan until the problem is solved
[2] There are other possible techniques for identifying root causes, such as Pareto, fishbone or Ishikawa analysis, Failure Modes and Effect Analysis (FMEA), problem tree and force fields analysis.
[3] The aim of this exercise is to find the root cause of the problem, regardless of the number of questions required. Therefore, it is not a rule to carry out the analysis with 5 whys, it can be less or more.
5
||||||||
Consideration about vulnerable groups
The identification of risks and the most vulnerable people can only occur when there is open and meaningful engagement with rights-holders directly (e.g. contract workers in their own operations) or through organizations that work with them (e.g. trade unions).
In some cases, these actors may have more than one vulnerability factor, increasing the possibility of being subjected to conditions that violate their fundamental human rights. For example, workers who have less of a protection and support network (e.g. immigrants or refugees) may be led to accept opportunities that harm their health and safety, making their labour rights more flexible and resulting in negative and even irremediable consequences.
6
||||||||
Challenges and recommendations
Human rights impacts are particularly observed in the form of ongoing violations against people or groups of people, communities and the environment. It is not always clear to companies how far their responsibility to respect human rights extends, as many companies end up seeing their impact in a more limited way or struggle to identify the elements for assessing impact.
This is due, on the one hand, to the lack of clear rules and requirements regarding the actions they must take, and on the other hand, because their operations often leave room for the "occasional flexibilization" of working conditions.
For example, when a sugarcane mill hires a sugarcane supplier for a short period of time who is not the primary farmer, it can make it more challenging to identify the conditions under which they are hired and to collect and monitor precise indicators to track the real protection of human rights. These challenges can be overcome by establishing a network of sugarcane producers who make collective commitments to human rights and who can guarantee minimum conditions for hiring suppliers that are also committed to this issue and that can be monitored.
7
||||||||
Checklist
✓ Has an operational analysis been carried out to identify specific human rights risks and impacts, using internal documents and complaint records, consulting stakeholders and doing field visits?
✓ Has a cross-check of information from previous analyses been carried out, confirming whether there are mentions of human rights issues in municipalities or regions where the company operates?
✓ Has a list been drawn up of potentially affected risks and actors that may be related to the company?
✓ Was it possible to determine the level of saliency of the risk or impact, considering its level of severity and the likelihood of it occurring in the operational context of the company and its suppliers?
✓ Was it possible to prioritize the risks, identified on the basis of their severity, the likelihood of generating damage, the ability to manage risks and the availability of resources to address them?
✓ Has a consultation been carried out with interested and affected groups to ensure that the identification and classification made are relevant?
✓ Has a root cause analysis been carried out, using one (or more) techniques to identify underlying factors that contribute to the risk or occurrence of human rights abuses?
8
||||||||
Library of Tools
In this section, you will find some tools that can help you identify risks and impacts
NEXT - Briefing Note 3, Address and Embed, which will address the process of defining and implementing actions to address human rights issues.
Assessment - UNDP: Self-assessment tool for capacity building on human rights risks, including their classification by level of severity and probability. At the end, a heat map is generated for each risk, which can support the prioritization of risks and impacts for action.
LandAssess Tool: A tool developed by Landesa for landowning companies at the beginning of the chain, with guiding questions for assessing risks and impacts on indigenous peoples and local communities. It also includes a framework for creating action plans to address the risks and adverse impacts identified.
"De Olho nos Ruralistas", Pastoral Land Commission, InPacto Vulnerability Index, Public List of Forced Labour: These are some examples of websites or specific platforms for identifying possible land conflicts between companies and communities or small producers. It is also possible to identify whether companies or producers are cited for practices of labour analogous to slavery, the socio-economic vulnerability of municipalities, among other information.