"How should a responsible company identify and address its incremental contribution to a cumulative human rights impact, particularly an impact on an individual or a community that is the result of the combined actions of several actors?"

When conducting human rights due diligence, human rights risks are considered from the perspective of the actual or potential impact on stakeholders. After identifying that stakeholders are experiencing an adverse impact, and that the company is involved in that impact, responsible companies will then attempt to remedy the impact. However, in certain circumstances stakeholders may identify and report impacts that are the cumulative result of the:

• The concurrent, collective impacts of multiple companies (and other actors)
• The cumulative impacts of a company/companies (and other actors) over time

• As such, identifying the source of an adverse impact may not be as straightforward as simply linking it back to a single company. For example, a community relying on a water source may find that the source is polluted or depleted. The impact may arise, not from one company's excessive water use or emissions, but from the cumulative effect of four companies and several local farmers drawing from, or discharging into, the same source. Whilst each actor on their own is not causing an impact, the cumulative result of all of the water withdrawals may impact the right to life, health, property or livelihood of the community. Similarly, whilst one company advertising high sugar foods or beverages to children may not create a human rights impact on its own, several companies, over time, targeting high-sugar foods and drinks at children can have a cumulative impact on child obesity and the right to health.

  Cumulative impacts have been described as "the only real effect[s] worth assessing", as they are what individuals and communities in fact experience. This is particularly the case given that patterns of development (and thus business activities) tend to be concentrated on specific locations characterised by (for example) an abundance of natural resources, logistical features such as ports, the presence of suppliers/customers and other focal points. This can naturally increase the local potential for cumulative impacts.

  The environmental, social and health impact assessment (‘ESHIA') field has long been addressing the concept of cumulative impacts on the environment, and more recently, people. In August 2013, the International Financial Corporation (IFC) published a Good Practice Handbook to provide guidance to companies in respect of cumulative impact assessment and management in emerging markets. This was in recognition of the need for companies to evaluate impacts "that result from the successive, incremental, and/or combined effects of an action, project, or activity … when added to other existing, planned, and/or reasonably anticipated future ones."

  The Good Practice Handbook highlights the following:

  "The importance of understanding the cumulative environmental and social impacts from multiple projects, actions, or activities—or even from the same actions over an extended period of time—located in the same geographic region or affecting the same resource (e.g., watershed, airshed) has been acknowledged for decades. In some cases, the most ecologically devastating environmental effects and subsequent social consequences may result not from the direct effects of a particular action, project, or activity but from the combination of existing stresses and the individually minor effects of multiple actions over time (Clarke 1994)."

  The IFC's Good Practice Handbook does not explicitly address human rights impacts, however. Moreover, human rights due diligence may differ from cumulative impact assessments in the ESHIA field (which do not generally address human rights impacts per se) in a key respect: under the UN Guiding Principles on Business and Human Rights companies must "cease or prevent" their contributions to a negative human rights impact. This contrasts with various regulatory obligations to "describe" or to "minimise" cumulative impacts in the ESHIA field. Nonetheless, there are clear parallels that can be drawn in the context of this dilemma.

  In this context, at least one leading extractive company – Rio Tinto – has acknowledged in its human rights policy the challenge and importance of considering cumulative human rights impacts.

  The role of business

  The duty to protect individuals from human rights violations, including cumulative human rights impacts, is part of the State's duty towards people under its jurisdiction. Moreover, the State is often in the best position to manage cumulative impacts through regional planning, or through industry-wide regulation. History has shown, however, that States are not always able or willing, to manage cumulative impacts. For example, the IFC's Good Practice Handbook describes a situation in which 37 hydroelectric projects (2 existing projects, 9 under construction and 26 proposed projects) were to occur within a single river basin and the host country had no regulatory requirement for assessing the total impacts of the projects together. Managing cumulative impacts requires an additional level of knowledge, experience and capacity that may not be available at the State level – particularly in developing countries or where emerging industries are involved. Moreover, States may also be unable to manage cumulative impacts where they occur across international (and sometimes even regional) borders.

  As a result, corporate efforts to address cumulative human rights impacts can be particularly important. This is particularly the case given the potential scale and severity of such cumulative impacts. Furthermore, according to Franks et al, management of cumulative impacts can help companies:

  • Make better use of existing resources and exploit opportunities for positive investments and efficiency gains through reduced duplication
  • Benefit regional environments and communities through their involvement in collaborative management of resources
  • Contribute to an industry's social license to operate
  • "Level the playing field" by more fairly sharing allocation of "the burden of staying within limits or thresholds" between companies, rather than allowing the last project in time to bear it alone.

  There are, however, a number of factors that may complicate companies' efforts in this respect.

  The first complicating factor is that a company's contribution to a cumulative impact is unlikely to be identified by conventional risk assessments. Even where impact assessments seek to address actual and potential human rights impacts, assessments that:

  • Are conducted on a one-off basis may not identify the cumulative effect of a company's activities, products and services over time
  • Do not consider the baseline human rights situation in the country of operation may miss impacts that arise when corporate activities knowingly or unknowingly aggravate existing issues
  • Do not consider other actors' contribution to impacts may miss the cumulative impact being experienced by the community and individuals, and the company's contribution to that impact

  The International Council on Mining and Metals (ICMM) has noted that the following with respect to the latter point (in the context of mining):

  "Mining projects have historically concerned themselves primarily with developments within their lease boundaries or connected to the infrastructure associated with their mines. Impact assessments have generally focused on the mine's direct impact area, usually within a defined geographic space [emphasis added]."

  Cumulative impacts pose a particular challenge for risk assessors as each company's individual activities, products and services may not cause a human rights impact on their own – and may be entirely legal. However, if a company's contribution to a cumulative impact is not identified in assessments, companies may be left exposed and unprepared for the costs and/or negative publicity that arise if or when their involvement in such an impact is exposed.

  Secondly, it can be difficult for companies to ascertain the correct methodology to assess the cumulative impact being experienced by individuals, and then to separate out their responsibility for contributing to the impact from that of other contributors. To take our earlier example of a joint water source, the company may be able to calculate its own water draw, but unable to obtain data concerning the total amount of water drawn by other actors. Likewise, a company advertising high-fat or sugar products to children may find it difficult to separate out its own impact on childhood obesity from other food companies engaging in the same practices and targeting the same consumers (both current, past and future). Given the challenges of separating out and preventing and/mitigating an individual company's contribution to a cumulative impact, one potential solution is to address the issue through collaborative initiatives (discussed further below in "Suggestions for Responsible Business").

  There are, however, further potential challenges to be addressed when using collaborative initiatives to address cumulative human rights impacts:

  • Other contributors to the impact may be diverse actors, including some with whom the company may not usually collaborate, such as competitors (including companies domiciled in other jurisdictions); governments; or local individuals or groups, such as small-scale farmers
  • Where the impact has accumulated over a period of time, some contributors may no longer be active or contactable
  • It can be difficult to ensure that the diffusion of responsibility does not result in a lack of accountability for individual companies – some of which are likely to be making more serious contributions to cumulative impacts than others
  • It can be challenging for some companies to collaborate with others whose management proficiency around human rights is less advanced than their own. In such cases, leading companies may prefer to pursue their own, unilateral initiatives
  • Companies who do try to drive collective initiatives to address cumulative impacts may find it difficult to elicit cooperation from fellow contributors – who may refuse to share information due to concerns around, for example, proprietary information.

  Thirdly, challenges for companies can also arise when they attempt to remedy their contribution to cumulative impacts that have already taken place. A responsible company that steps forward and publicises the existence of the cumulative impact can attract adverse publicity that may be disproportionate to its own (potentially limited) contribution to the impact. It may also attract ill-will from other companies or governments whose contribution to the problem then becomes public knowledge. Likewise, such challenges can arise where a company that is contributing incrementally to a cumulative impact establishes a grievance mechanism and allows stakeholders to raise related concerns with them – particularly when other contributors have not established such grievance mechanisms and/or do not acknowledge their own contribution to the impact. Finally, without the involvement of the other actors contributing to the impact, it may be that that the responsible company cannot take action on its own that has any tangible effect on the impact being experienced by the stakeholders.

  See Cumulative Impacts case studies

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Companies may contribute to cumulative human rights impacts in various ways, including (but not limited to) those that accumulate:

• As a result of the company (or its predecessor's) actions over time (e.g. temporal cumulative impacts)
• Due to concurrent activities of several actors that accumulate in and affect a tangible, defined area (e.g. the human rights of community adjacent to multiple commercial developments) or that affect the public at large (e.g. as consumers)

• This dilemma focuses mainly on the second type of cumulative impact (although in practice there is often overlap between the two categories).

  Company human rights and social impacts that accumulate over time (temporal cumulative impacts) and ‘legacy impacts'

  Companies may face allegations of human rights and social impacts in respect of their cumulative impacts over several years. Moreover, where stakeholders call upon companies to address impacts that have accumulated over time, they may also include ‘legacy impacts', that is, the impacts the company may have inherited through mergers, acquisitions or joint ventures, for example. These impacts may be "seen as ‘out of scope' in standard environmental and social impact assessment practice".

  A high profile example of a dilemma concerning temporal and legacy cumulative impacts is the well-publicised legal claim (in the US and then Ecuador) brought by 30,000 plaintiffs in respect of the Lago Agrio oil field in Ecuador. The claim was brought against Chevron as it acquired Texaco's refining operations in 2001. The case concerned the cumulative health impacts of 23 years of oil production in the area, described as a "crime against humanity" by the Ecuadorian President in 2006. In 2012, Chevron was ordered by the Ecuadorian court to pay US$18 billion in damages – the largest judgment ever awarded in an environmental lawsuit. Chevron disputes the attribution of the entirety of the pollution and health problems in the region to its activities, citing bacterial contamination from human or animal waste in drinking water. It has further stated that "Chevron should [not] be held accountable for addressing the overall problems of the region, caused because the government and the state oil company who are unwilling or unable to shoulder their responsibility".

  Acid mine drainage is an example of a cumulative impact that is currently being tackled in the historical gold mining region of Gauteng in South Africa. The region is home to multiple abandoned deep mine shafts – which are accumulating water due to a lack (in many cases) of active de-watering – as well a number of active shafts. As water accumulates in the voids of the numerous abandoned deep shafts, increased salt-loading results in the acidification of water that can then decant into other water bodies – causing water contamination in both rural and urban areas – with potential risks to both health and livelihoods. These underground shaft systems are often interconnected, making it difficult to identify the exact source of contamination. Likewise, many of the previous mine owners no longer exist – making it difficult for them to address their impacts. This leaves the smaller number of recent and/or current mine operators with a major challenge in terms of addressing a major cumulative environmental impact to which they have (generally) not contributed to because (1) their mines are still active or (2) they are continuing to de-water their own non-active mines – with little impact on the broader issue. Read more on the South African government's Water Affairs Department website.

  Concurrent cumulative impacts with other actors

  The examples discussed below highlight the common areas in which companies may face cumulative impact dilemmas that arise as a result of the concurrent actions of several actors. These actors may include other companies, government or members of local communities. The scenarios discussed below include:

  • Natural resource impacts
  • Emissions in air and water sheds
  • Effects on consumer health
  • Portrayals in entertainment
  • Inward migration spurred by new corporate projects
  • Cumulative impacts on the supply chain
  • Integrated industrial plants and special economic zones

  Natural resource impacts

  Water-related cumulative impacts

  Access to water raises risks of impacts to the right to an adequate standard of living and the right to health, among others. Moreover, in 2010 the UN General Assembly and the UN Human Rights Council passed resolutions on the recognition of the human right to water and sanitation, and numerous countries have recently passed legislation on access to safe drinking water. This has taken place in the context of increased focus by civil society and communities on corporate impacts on water availability.

  In research conducted for the UN Global Compact's CEO Water Mandate, key stakeholder concerns around corporate water impacts include the following:

  • Depletion: Companies using water in water-stressed areas are seen as creating problems in urban and rural settings by lowering the water table
  • Pollution: Companies operating near a water source can be seen as contributing to the contamination of water due to chemical use, dumping of waste and other practices – causing health problems in humans and animals, crop damage and, in extreme cases, communities having no choice but to relocate
  • Access and affordability: Company activities may block access to clean water resources and also lead to stakeholders turning to more expensive alternatives to traditional sources of water
  • Conflict: Community concerns about water can lead to confrontations with companies and within communities
  • Gender-related impacts: Corporate water use can potentially contribute to impacts on women and girls in a disproportionate way (with this group potentially facing exposure to violence when travelling further to get water in certain areas)

  In many cases, the adverse effects experienced by communities are as the result of the incremental contributions of many different actors drawing from the same watershed, or discharging into the same water bodies. The dilemma is exacerbated where relevant governments are not meeting their duty to respect, protect and fulfil human rights, due to dysfunctional water governance systems and/or absent/unenforced local legislation and regulations.

  Land acquisition/control

  Corporate impact assessments seldom consider the pattern of land acquisition, lease or expropriation (i.e. from which they benefit) in the area surrounding their proposed or actual operations. However, the acquisition, lease or expropriation of land by several companies in the same area can have a significant cumulative impact on the freedom of movement and right to an adequate standard of living of local communities, among others. For example, as outlined above, following a critical number of corporate land purchases for mineral exploration in an Asian state, nomadic herders found their access to grazing lands restricted and communities complained of being pushed outwards into areas with limited access to essential services.

  Allocation of land to companies by governments without a comprehensive plan can lead to human rights impacts, such as in Tete province, Mozambique, where in 2012 mining concessions and exploration licenses covered 60% of the area of Tete Province. As a result of a lack of land availability, HRW has reported that former farming communities have been resettled by Vale and Rio Tinto to land of "of deeply uneven quality, unreliable access to water, and diminished access to key sources of non-farming income."

  According to the Oxfam Briefing Paper Land and Power, the world is experiencing a "modern-day land-rush" following the 2007-2008 food prices crisis. They also report that an area the size of Western Europe has been sold or leased in developing countries since 2001, often to produce food and biofuels for foreign markets. Companies can face dilemmas in ascertaining whether their specific acquisition, lease or expropriation of land, even obtained with free, prior and informed consent, may be part of a wider, incremental alienation of peoples from land.

  Raw ingredient sourcing and cumulative over-harvesting

  Multiple companies sourcing raw ingredients for products such as medicines or food and beverages in the same geographical area can cumulatively impact local communities' right to food. Although each individual company may source only a reasonable amount of the natural resource in question, such as local wild flora, the cumulative effect on total local supplies can be serious.

  This can be illustrated by the over-harvesting of Hoodia, a plant native to many southern African countries and consumed by members of the indigenous San community for long hunting trips, during which the hunters can't regularly stop for food. A rush of interest in this plant's appetite suppressing effects led to its commercialisation as a functional food (for example by Phytopharm and Unilever) and as a herbal supplement by a large number of relatively small companies. Corporate harvesting seriously affected local supply and the San's ability to sustain itself on hunting trips – allegedly impacting their right to food. Hoodia was added to Appendix II of the Convention on International Trade in Endangered Species of Wild Flora and Flora in 2004. Nonetheless, in 2006 the trade had "escalated exponentially—in many cases illegally—from just a few tons to more than 600 tons of wet, harvested material per year". Eventually a benefit sharing agreement was signed between the South African San Council and the South African holders of the patent "that followed research and development of new technology related to the Hoodia plant", the Council for Scientific and Industrial Research. To read more about the case, click here.

  Contribution to emissions into air and watersheds

  Responsible companies regularly monitor their water- and air-borne emissions, to maintain compliance with regulatory limits and internationally-accepted standards. However, cumulative emissions into air or watersheds can rise to levels that endanger health, lives or livelihoods.

  The IFC's Performance Standard 1 gives examples of the cumulative impacts that private sector developers may need to consider, including "incremental contribution of gaseous emissions to an air-shed" and "increases in sediment loads to a watershed". Whilst the IFC has not made an explicit link between these ecological cumulative impacts and human rights, HRW has identified potential cumulative human rights impacts of air pollution in the context of "the high concentration of mining projects in Tete Province", Mozambique. Moreover, Rio Tinto has identified this challenge in its "Why Human Rights Matter" publication, noting that:

  "A community may raise a concern about health impacts from dust, which affects the right to a clean environment and the right to health. Environmental monitoring may indicate that dust levels from our operations are well within legal limits. However, if there are several companies or industries operating nearby, the combined levels of dust could pose a serious health risk or severely affect quality of life."

  The IFC highlights a situation in which a company planning a metals refining operation in an emerging market economy conducted a risk assessment and "concluded simply that because the concentration of heavy metals in the discharge to a river would be lower than the country's discharge standard [,]the project should proceed…"However, in reality human health was threatened in the area by the cumulative impact of several other emitters into the river, some of which exceeded national standards. The IFC reports that when cumulative impacts were considered, responsible options included (a) project relocation; or (b) a reduction in discharges to the greatest extent possible – with additional mitigations to reduce loadings from existing sources.

  Advertising and media portrayals

  Cumulative impacts do not only accumulate on a ‘geographical' basis; responsible businesses can also face dilemmas with respect to their cumulative impacts on the public at large (including consumers and potential consumers). For example, the effect of a single company advertising a high-sugar or high-fat product to children (or their parents) may be negligible. However when many companies do so – and such advertising becomes more pervasive – it may contribute to a broader cumulative impact on childhood obesity and the right to health.

  Similarly, evidence suggests that the regular portrayal of the ideal of a skinny figure in women's magazines has an effect on the prevalence of eating disorders – and thus may also impact on the right to health. A well-known study measuring the eating attitudes and behaviours of adolescent girls in Fiji prior to the introduction of regional television and following prolonged exposure, indicated that these adolescents exhibited a significant increase in eating disorders following such exposure.

  Inward migration spurred by new corporate projects (and resettlement)

  The establishment of a corporate project (for example a new mine or major manufacturing facility) in a particular location can have significant positive impacts on the livelihoods of local people.

  However, the influx of people accompanying new projects – and major extractive projects in under-developed regions in particular – can also have adverse local socio-economic consequences (colloquially known as ‘boomtown effects'). This includes, for example, inflation of housing and/or food prices, higher levels of disease (including sexually transmitted diseases), increased crime and insecurity, pollution and increased strain on public infrastructure and services (such as childcare). These effects can impact the right to an adequate standard of living and to security of the person, among others.

  Companies' risk and impact assessments often consider ‘boomtown effects' with respect to their own operations (although the ICMM notes that this area of "potential importance from a human rights perspective", is "not always well covered within ESIAs"). However, the ESIA may not identify the cumulative human rights impacts caused by several projects in the area, or may not do so with a human rights lens. In addition, they may not consider cumulative impacts where other contributors come from outside the industry. For example, a leading company in the extractives industry has noted that its ‘boomtown' impacts can combine with similar impacts from tourism in various areas in Africa. Moreover, if undertaken only once, and/or without considering probably future projects, such an assessment may miss cumulative impacts that arise when new companies subsequently enter the area.

  Similarly, an extractive company that was engaged with during the development of this paper noted that resettlement has the potential to cause adverse cumulative impacts where several different companies relocate different segments of a community without a coordinated approach. In this context, the company reports facing a dilemma situation in a developing country where government directives in fact exacerbated the problem by planning relocation without due consideration for kinship relations and the fabric of the overall community, and few other companies in the area were prepared to question such an approach.

  Cumulative impacts on suppliers

  Companies sourcing from the same supplier – or even a specific ‘region' of suppliers – can contribute to cumulative impacts.

  Decisions about disinvestment on human rights grounds are always delicate balancing acts for companies. It can depend on the size of a company, the nature of its business activities, the resources involved, the potential profits to be made from investment, as well as other complex factors in the country of operation. As part of the decision-making process, one factor that should be taken into account is that when several companies pull out of a region simultaneously, it can potentially impact the right to an adequate standard of living for workers in the supply chain. In turn, this can – despite good intentions – result in a negative human rights impact itself. In this context, the UN Guiding Principles on Business and Human Rights require that companies consider the potential human rights impact of ending business relationships (Principle 18, Commentary).

  Following the tragedy of the collapse of the Rana Plaza factory in Bangladesh in 2012, for example, the media reported that the Walt Disney Corporation had ceased sourcing from suppliers in the country due to concerns about worker safety. However, some commentators, worried about a ‘domino effect' of companies pulling out of the country, urged companies to stay in Bangladesh, due to the positive cumulative impact that business can have in providing jobs in the manufacturing sector and alleviating poverty.

  See Cumulative Impacts case studies

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Real-world examples

The dilemma of cumulative human rights impacts is not restricted to emerging growth economies or developing countries. For example, a leading extractive company that was engaged with as part of the development of this paper reported that although, on the whole, management of cumulative impacts in developed countries is done better, these jurisdictions still pose their own challenges due to the higher number of potential contributors to cumulative impacts. Likewise, developed country governments can be less receptive to discussions around potential human rights impacts compared to many developing country governments, which often deal with discussions around human rights impacts more frequently.

However, emerging economies can provide unique challenges where:

• Government structures are not in place to deal with cumulative impacts, particularly where rapid changes are taking place in the investment environment
• Governments may lack the technical knowledge or resources to recognise that government activities and/or policies may be contributing to cumulative impacts
• There are few established relationships between companies and across industries
• Governments may be resistant to more progressive companies taking the lead or offering solutions in respect of cumulative impacts

Stakeholders refer UN Working Group to cumulative corporate impacts on grazing lands, water availability and migration patterns in Asian state

When an expert from the UN's ‘Working Group on the issue of human rights and transnational corporations and other business enterprises' (UN Working Group) conducted a country visit to an Asian state and met with government, industry and stakeholders, she found that cumulative impacts were the most prevalent complaint from communities in relation to the impact of corporate activities on human rights. For example, communities complained that:

• Several companies together had been responsible for the cutting-off of their nomadic grazing lands, with land purchases for mineral exploration by several different companies in a given area ‘stranding' the grazing lands within a patchwork of inaccessible areas. As a result, local communities claimed that the herders' enjoyment of the rights to an adequate standard of living and to take part in cultural life through farming and animal husbandry has been impacted

• The cumulative water use of several companies that lowered the water table was resulting in the destruction of pastureland and surface water resources. In addition to the rights noted above, it is also claimed that this undermines the right to water, which is "essential not only for the preservation of the nomadic lifestyle and culture, but also for those who are living in towns across the region"

• The result of mineral exploration carried out by several companies in a given area "required herders to move their herds to more remote regions, for longer periods of time, limiting their access to education, health care and social welfare services"

Human Rights Watch issues report critical of Mozambique government, Rio Tinto and Vale for cumulative human rights impacts associated with resettlement in Tete Province, Mozambique

In May 2013 Human Rights Watch (HRW) issued a report critical of the resettlement of thousands of members of communities in Tete province, Mozambique that took place between 2009-2011 to make way for coal mining operations belonging to Vale (the Moatize mine) and Rio Tinto (the Benga mine). Relocation of communities began in 2009, and took place in the absence of a regulatory framework governing resettlement, and where "neither national nor provincial authorities [had] systematically assessed…cumulative impacts", such as the "cumulative economic, social, and environmental impacts of the natural resource boom" In particular, 60% of the land in Tete province (as at 2012) was either subject to mining concessions or exploration permits. Provincial government officials and representatives of Vale and Rio Tinto interviewed by HRW all agreed that the "limited land available due to crowding from numerous mining licenses" in the province was an obstacle to resettlement plans. Both the companies and the communities proposed alternative sites, however these were unavailable for resettlement.

HRW cited a number of specific concerns from affected communities, including the following:

• Whereas they had previously farmed fertile land adjacent to a river, the land on which many had been resettled did not have sufficient access to water for farming and residents complained of water costs and frequent shortages
• Whereas communities had previously sold firewood, charcoal and wild fruits from boab trees to nearby markets to supplement their income, they no longer had access to such resources and the resettlement areas are 40km from the nearest market
• Resettled residents cited concerns about food security. Whereas the community undertook farming and had previously had proximity to natural food resources, many families became dependent upon food packages and food for work programmes provided by the mining companies, which some claimed was insufficient and caused them to go hungry

HRW attributed the impacts on rights to food, water, and work to "weak government oversight during a period of rapid change" as well as "serious shortcomings… in private companies' implementation" of resettlement plans. Resettled individuals interviewed by HRW claimed that the government and companies respectively directed their concerns to the other party. HRW notes that community protests blocking Vale's transportation railway in January 2012 - in relation to "concerns about land, houses, water, transport, and job opportunities – brought a violent crackdown from the Mozambique authorities.

The report notes that the companies concerned are undertaking various programmes to try to alleviate the impacts. The government enacted a decree on resettlement in 2012 and is in the process of updating the Mining Law; however, it has previously noted challenges with respect to staff capacity due to the difficulty of competing with private sector salaries. HRW concludes that "there is little management and planning for the cumulative impact of numerous mining projects on the environment, local community, and the economy".

(See further discussion on this example below, under "Suggestions for responsible business")

Pulp Mills on the Rio Uruguay

In the mid-2000s, plans by two companies, Botnia and ENCE, to build two pulp mills on the Uruguayan side of the Rio Uruguay (which divides Uruguay from Argentina) caused diplomatic tensions between the two countries – and eventually led to the matter being referred to the International Court of Justice (ICJ). Residents of the Argentine city of Gualeguaychu (located across the river and inland about 25km from the pulp plants) were concernedthat the plants would "generate pollution which could destroy their main sources of income, including tourism and agriculture" – and protesters blocked a busy, shared bridge linking the two countries. Framed in human rights terms, the protesters feared the mills would impact their right to an adequate standard of living and right to a safe and clean environment.

The dispute involved multiple complex factors, but one notable aspect is that both companies involved had undertaken Environmental Impact Assessments (EIAs) of their respective projects. Nonetheless, the IFC decided that a further study of the cumulative impact of the two plants together was required – and that such study should also address social issues, including the effects on traffic, labour supply and tourism. The IFC's draft cumulative impact assessment (released in 2005) concluded that the projects could go ahead, and in July 2006 the ICJ declined to grant a provisional order halting construction of the mills. In August 2006, however, ENCE decided to relocate its pulp mill to a different area of Uruguay, stating that"there cannot be two [pulp] mills in Fray Bentos"due to a lack of sufficient infrastructure– something that had not been anticipated by the government or ENCE.

See Cumulative Impacts case studies

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Reputational risks

Companies should be aware of the risk of negative publicity generated by civil society in respect of cumulative impacts to which they contribute incrementally. As noted above, cumulative impacts can by their nature be among the most serious impacts of business activity, affecting the health, livelihoods and other rights of communities.

Examples of reputational damage

The 47 companies operating in the Alberta oil sands experienced reputational damage associated with the expansion of the industry, its contribution to the cumulative impact of climate change and its associated human costs. According to Environment Canada (Canada's department of environment), between 2010 and 2020,Canada's carbon emissions (excluding those from its oil sands industry) are set to decline by 28 million tonnes ofCO₂. However, increased production in the oil sands sector is expected to result in Canada's overall oil and gas emissions increasing by 44 million tonnes (28%) over the same period. According to a recent paper by Boutilier and Black, US-based philanthropic foundations provided large amounts of funding to activists groups to carry out a ‘tar sands campaign'.Groups began using terms such as "dirty oil" and "blood oil" in reference to products produced by the companies operating in the oil sands. As will be discussed below, this represented a marked contrast to the predominant view that the industry was "collaboratively and creatively" addressing other cumulative impacts associated with the expansion.

Likewise, reputational damage has affected retailers alleged to contribute to eating disorders through marketing images. In July 2012, newspapers in the UK reported that British clothes retailer Topshop took down an image of a model from its website after receiving pressure from civil society. A spokesperson from anorexia charity Beat, was quoted as saying:

"Images like this are affecting young girls more than ever before. Topshop needs to take some responsibility and use healthy models."

Companies as a key target in ‘multi-actor' cumulative impacts

When cumulative impacts are the result of a combination of corporate, government and local activity, companies may provide a more attractive target for activists where governments and laws are slow to respond. In its 2013 report on community resettlement by Rio Tinto and Vale in Mozambique, HRW states that human rights impacts arose both from "serious shortcomings in government policy and oversight and in private companies' implementation" of resettlement plans. However a community member indicated that protests blocking the railway transporting Vale's coal shipments were more effective than approaches to the government, stating that:

"When we tell all of our complaints to the [provincial level] permanent secretary, we know there is no answer. If we close the railway, they will come to us".

Moreover, civil society may believe (sometimes correctly) that companies have a greater ability to sway government laws and policies than do other actors.

In certain cases – and particularly in the case of high-profile brands – companies may consider activist pressure to be disproportionate to their actual contribution to the cumulative impact. For example, it is worth considering the following two examples in the context of corporate use of water (and allegations of contribution to water shortages):

• A company that was engaged with as part of the development of this paper measured its withdrawals from a watershed in an emerging market as less than 0.5% of all withdrawals at peak times. However, its contribution to water-stress in the region has been the target of civil society campaigns that apportion responsibility for a lack of water (including an insufficient amount of water available for local farms) to the company alone.
• In Canada, Nestlé has challenged restrictions placed on its permit to draw water during times of drought in Ontario. Nestlé's Corporate affairs director has noted, inter alia, that the quarries and golf courses in the area are not subject to mandatory water-drawing restrictions, stating that "they get a free pass, and we don't … it's an issue of fairness" and he has expressed the view that the company was being unfairly targeted "because we're a large multinational corporation." A petition launched on the "SumOfUs" website asking Nestlé to "stop draining Ontario's watershed to bottle water" has gathered more than 130,000 Facebook ‘likes' and more than 4,600 ‘tweets' on Twitter.

These examples also illustrate the fact that civil society tends to reject corporate explanations that rely on – and limit their responsibility for remediation to – the ‘percentage contribution' of the company to an impact. For example:

• In its legal defence and its "Open Letter to the People of Ecuador", Chevron asserts, inter alia, that its remediation of the Lago Agrio oil field in Ecuador was "reflective of Texaco's approximate 1/3 share of the oil-producing consortium with Petroecuador." However it still experienced extremely negative publicity and was subject to a local court judgment of US$18 billion for the cumulative health impacts of remaining oil pollution in the area
• In response to a civil society campaign targeting its use of water, Nestlé noted (in addition to its efforts to reduce water usage and address its impacts through a global water due diligence programme) that "Nestlé Waters uses only 0.0009% of global freshwater withdrawals." However, this figures has done little to stem civil society concerns

According to Makoto Teranaka, a long-standing human rights activist based in Japan, civil society organizations will often target ‘secondary' contributors to cumulative impacts (as opposed to the company identified as being the greatest contributor to the impact) if it is believed that the secondary contributor has a more recognizable brand or greater corporate influence.

Additionally, civil society increasingly expects businesses to join collaborative initiatives aimed at addressing members' contribution to cumulative impacts. For example, UK-based multinational Topshop was the target of a 2007-2009 campaign by NGO "People and Planet" for failing to join the Ethical Trading Initiative – an alliance of companies, NGOs and trade unions focusing on supply chain codes of conduct and collective learning around ethical trade practices.

Legal risks

Cumulative human rights impacts often carry lower levels of legal risks for companies than ‘normal' human rights impacts. This is because:

• Each company's own impact may be below any regulatory thresholds
• It can be difficult for plaintiffs and for courts to separate out and assign responsibility for impacts
• Where impacts accumulate over time, statutes of limitations can affect a plaintiff's ability to bring a case

Despite these challenges, courts and legislatures do find ways to deal with lawsuits involving multiple independent contributors to the same harm. Sometimes claims are made under different branches of law, such as domestic tort law, criminal law, contract law or company law and at other times under international and human rights law.

It is important to distinguish between complicity and our definition of cumulative impacts, as both represent a form of "contribution" to human rights impacts under the UN Guiding Principles. This dilemma does not concern complicity – for example, the knowing assistance in the commission of a crime by another entity – but rather the contribution to a total impact that is the result of the actions of more than one actor. This distinction is discussed further in the Background section.

Joint contributors to breaches of international law

International human rights are grounded in international law. Thus, companies that directly contribute to human rights abuses risk legal consequences for breach of international legal standards. Victims of such breaches can (depending on circumstances) pursue wrongdoers "in multiple arenas - in national courts, international tribunals and international arbitral bodies". Each judicial body will deal with the question of apportioning liability for cumulative impacts differently.

The issue of separate contributors to a breach of general international law was raised in a case involving damage caused by mines wrongfully laid in the Persian Gulf during the Iran/Iraq war ("Oil Platforms" case).Both Iran and Iraq had laid mines in the area in which a United States Navy warship suffered damage after striking a mine. The United States could not prove whether it was a mine laid by Iran or Iraq that caused the damage, however one judge expressly stated that this did not preclude the US from claiming against Iran for all of the damage (see below for details).

Where claimants seek to enforce international human rights law against a company through domestic courts, however, the issue is complicated by the competing views on whether corporations should even be subject to international law. For example, the United States' Alien Tort Statute (ATS) allows federal courts to hear tort claims by non-US citizens alleging violations of "the law of nations." In 2010 the US Supreme Court "explained that because corporate liability is not a discernible norm of customary international law, the ATS should not be interpreted as having authorized suits against corporations. The position in the United States – regarded (until recently at least) as "the principal domestic forum for resolving international human rights violations" – was not resolved by the Kiobel decision in 2013.

Nevertheless, according to a 2011 paper by US law professor Roger Alford - "as international law increasingly creates rights and imposes duties on non-state actors, it is inevitable that questions of joint responsibility will arise". He further notes that, "questions surrounding the apportionment of fault among joint tortfeasors who violate international law are, or soon will be, among the most important and unsettled in human rights litigation".

It is useful to look to domestic legal treatment of this issue as courts seeking to deal with apportionment of responsibility for breaches of international law "will resort to domestic tort law in one way or another".

Claims in tort for civil wrongs

The more common means for addressing violations is often through the application of domestic tort law. The practice of apportioning responsibility between wrongdoers will obviously differ depending on the country. In the Oil Platforms case, Judge Brunno surveyed American, Canadian, British, French Swiss and German law and concluded that there was a general principle of law that one contributor could be liable for all of the damage caused. In his paper, however, Professor Alford expressed doubts about the broader applicability of this principle, noting that this is not the case in China or New Zealand. Moreover, he noted that the approach in the United States differs depending on the states, which often take different factors into account, such as:

• The degree of fault among the wrongdoers
• The type of harm that was actually caused
• The risk of each wrongdoers insolvency
• The plaintiffs' own responsibility

Sometimes it is simply impossible to divide the harm suffered by the victim and assess the degree to which each wrongdoer contributed to the harm. Most of the cumulative impacts we have considered in this dilemma would fall within that category. A 2004 study of the laws of 15 countries concluded that in such cases of indivisible harm, a generalised standard would provide that the victim should be able to sue any one of them for all of the damage (i.e. on the basis of joint and several liability). The wrongdoer sued would then be forced to pursue other wrongdoers for their contribution.

Judicial and legislative approaches to indivisible cumulative impacts from asbestos: Australia and the UK

Australian and English courts have been faced with the legal difficulties surrounding multiple contributors to health impacts from the inhalation of asbestos fibres. Asbestos has been used in construction and building materials and is now banned in several countries. Although a single exposure usually won't lead to harm, the prolonged inhalation of asbestos can result in respiratory diseases, such as mesothelioma. These diseases have a long latency period, with symptoms appearing 12 to 20 years later. Further, where a worker has been exposed to asbestos at multiple sites, it is usually impossible to pinpoint which employer caused the disease. In Australia and the UK, the respective governments have chosen to amend their legislation to assist plaintiffs in bringing such claims.

In the United Kingdom, the House of Lords held, in a 2002 case called Fairchild v Glenhaven Funeral Services, that a worker who had been exposed to asbestos dust at different times by more than one employer, and who had subsequently contracted mesothelioma, could sue any one of the contributing employers, without having to prove exactly which contributor had caused the disease. However in 2006, the House of Lords came to the opposite conclusion in another case, holding that employers who exposed an employee to asbestos dust would be severally (not jointly) liable – meaning that they would be responsible only in relation to their proportional contribution to the employee's mesothelioma. Following condemnation of this ruling by trade unions and activist groups, the British government amended the Compensation Act 2006. Section 3 of the Act now provides that in cases of mesothelioma, each contributor to the harm is liable to the victim for all of the damage caused by the disease – although the defendant may then sue others responsible to recover their contributions.

In Australia, meanwhile, laws were amended so that the time limit within which a claimant may commence a legal action is now calculated from the time of discovery of the illness, rather than the time at which the disease was contracted. In this way, the law was modified so as to accommodate claims concerning asbestosis, which results from exposure over time and has a long period of latency.

Recent case: Silicosis in South Africa

In December 2012, a South African law firm sought certification to bring a class-action lawsuit in South Africa on behalf of as many as 17,000 ex-gold miners suffering from the lung disease silicosis. A total of 29 gold mining companies that owned or operated 78 different gold mines from 1965 to the presentday were listed as defendants, including African Rainbow Minerals, AngloGold Ashanti, Gold Fields and Harmony Gold. The plaintiffs allege that the miners contracted the disease while drilling gold bearing rocks, and that the companies, knowing of the dangers, failed to take adequate measures to protect the workers from this exposure. Many of the plaintiffs worked at several different mines over the span of their career: for example, the plaintiffs' attorney refers to a Mr. Boxwell, a former gold mine worker living in Butha-Buthe, Lesotho, who worked in four different mines over a 23 year period. The case is continuing.

Separately, Anglo American South Africa reached a confidential financial settlement with 23 silicosis sufferers in September 2013. Commentators have noted that silicosis cases are more likely to settle than to reach a final verdict. This is partly due to uncertainties around the legal standard for causation: do the plaintiffs need to prove that their silicosis was caused by a particular company, or merely that each company was negligent in respect of their safety? Another reason cited is the fact that many of the subsidiaries that employed the plaintiffs no longer exist, and "taking on responsibility for subsidiaries that no longer exist may be a concession the industry cannot afford to make." The lawyers for the plaintiffs have called for an industry-wide settlement, in which case the degree of responsibility of each company for the workers' silicosis may become a vital issue.

Corrective legislative action

As civil society places increasing pressure on governments to regulate cumulative human rights impacts, companies are likely to face new risks and opportunities in the form of new legislation creating taxes, limits or prohibitions on contributions to cumulative impacts.

This is particularly the case where industry does not self-regulate its contribution to cumulative impacts. For example, in January 2013, the United Kingdom's health secretary announced that the government is considering introducing new laws to limit the amount of sugar, salt and fat in processed foods to curb childhoodobesity. However, he intends to give supermarkets and manufacturers a chance to get their "house in order" before resorting to legislation.

Likewise, taxes on sugary beverages have been proposed in several US cities and in late October 2013 a proposal was introduced in San Francisco to apply a tax of 2 cents per ounce for all sugar-sweetened beverages.

Furthermore, there are signs of a shift in some jurisdictions towards mandatory human rights reporting by companies. The UK, for example, has put in place regulations (Companies Act 2006 (Strategic and Directors' Reports) Regulations 2013), that require quoted companies to report information concerning human rights, including information on any human rights policy and its effectiveness. Where definitions of human rights impacts are informed by the UN Guiding Principles on Business and Human Rights, they will include contribution to – as well as the causes of – impacts.

Pre-emptive judicial action

In some states, courts are taking a pre-emptive approach to safeguarding people under its jurisdiction from potential cumulative impacts. The results of a UN Global Compacts study on corporate water use cites a number of cases of courts suspending company activities where there is a risk that the company's water use could adversely affect local communities' basic water needs. The authors consider that this reflects a shift in prioritization following the emergence of the human right to water and sanitation.

For example in 2004, the High Court of Sindh at Karachi issued an injunction restraining Nestle Milpak Limited from initiating any commercial or industrial activities, including the construction of a bottling plant, in Karachi's Deh Chuhar area. The company had planned to tap into an aquifer through tube wells, and several institutions in the area had argued that its "excessive use of groundwater" would "affect the persons in the neighborhood". The court referred to a previous decision against Coca-Cola in Kerala, as well as Principle 2 of the Stockholm Declaration, which requires natural resources to be safeguarded for the benefit of present and future generations. The court found that the company's proposed extraction of water would "adversely affect the rights of plaintiffs to use the underground water according to their genuine needs".

Financial risks

Contributions to cumulative impacts can impact companies financially over the long term and on a collective basis. Companies can, for example, see increases in operating costs and the cost of raw materials due to a scarcity of poorly managed resources.

Contributions to cumulative impacts can also impact sales and investment. As more consumers and investors prioritise ethically sourced/green/fair trade items, it becomes smart business to appeal to this market. The Dow Jones Sustainability Index is one example of how companies are reacting to investor pressure in this regard. Moreover, companies that contribute to impacts without engaging in collaborative mitigation/remediation efforts can be left "out in the cold" when competitors collaborate and brand/certify their products as not contributing, or contributing less, to the particular impact.

Cumulative impacts can also directly impact a company's consumer or employee base. A company in the food and beverage sector has reported that it considers cumulative impact risks to pose direct financial risks in emerging markets. This is because the community surrounding its plants – and those potentially affected by cumulative water or emissions impacts, includes employees and the consumers of its products. As such, cumulative impacts affecting the health and well-being of its workers affect productivity, and those affecting the health of surrounding communities affect not only its social license to operate, but also its consumer base.

Furthermore, contribution to impacts can also affect access to finance. The corporate responsibilities set out in the UN Guiding Principles (which include contributions to adverse impacts) have been incorporated into the Equator Principles and various export credit regimes. As more and more institutions take up the UN Guiding Principles, obtaining international finance whilst ignoring cumulative human rights impacts may become a challenge.

See Cumulative Impacts case studies

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The UN ‘Protect, Respect and Remedy' Framework for Business and Human Rights provides guidance on how to protect individuals and communities from corporate related human rights harm.

The framework is comprised of three key principles:

• Protect: The state duty to protect against human rights abuses by third parties, including business;
• Respect: The corporate responsibility to respect human rights; and
• Remedy: Greater access by victims to effective remedy, both judicial and non-judicial.

The framework states that in addition to complying with national laws businesses have a responsibility, in the context of the countries where they operate, to respect human rights through their own business activities and through their relationships with third parties – such as business partners and entities in their supply chains. To meet this responsibility, the framework notes that businesses should engage in human rights due diligence and specifies the main components of the process:

Policies: Including a human rights policy containing broad commitments, supported by more detailed guidance in specific functional areas

Impact assessment: Including assessments that explicitly reference internationally recognised human rights and are used by companies to avoid potential negative human rights impacts on an ongoing basis

Integration: Including the embedding of respect for human rights throughout a company

Tracking performance: Including regular updates of human rights impact and performance

The Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework aim to provide "concrete and practical recommendations" about how businesses can operationalise their responsibility to respect human rights. According to the Guiding Principles, the responsibility to respect human rights requires responsible companies to:

• Implement a human rights policy
• Apply human rights due diligence
• Provide for remediation

The UNGPs apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.

The UNGPs have experienced widespread uptake and support from both the public and private sectors, and numerous companies have publicly stated their commitment to the Guiding Principles. The UN Guiding Principles Reporting Framework is also used by companies to report on how they respect human rights.

Companies can seek specific guidance on this and other issues relating to international labour standards from the ILO Helpdesk. This aims to help company managers and workers understand the ILO approach to socially responsible labour practices and to assist in the development of good industrial relations.

Effectively addressing company contributions to cumulative human rights impacts raises many of the challenges associated with addressing the impacts of individual companies. However, additional challenges predictably arise where the company is only one of a number of parties contributing to an impact. The below provides specific actions that companies may consider in order to address cumulative impacts.

1. Assess cumulative human rights impacts

When conducting a periodic assessment of actual and potential impacts in line with the Guiding Principles, a company should take into account impacts that they may:

• Cause or
• Contribute to through their own activities, and those which may be
• Directly linked to their operations, products or services by their business relationships.

Cumulative impacts fall under those impacts that the business may ‘contribute to' (see (b) in the diagram below). The other way of ‘contributing to' a human rights impact is by way of ‘complicity' in the abuse of another party (see (a)) in the diagram below).

Figure: Cumulative impacts within the context of the UN Guiding Principles

However risk assessments – whether undertaken with respect to new or existing projects – do not often consider cumulative human rights impacts. Early assessment of cumulative impacts will help companies to identify and prevent or mitigate their contribution to the impact, and to use leverage to mitigate the remaining impact. This is already being recognised by some leading companies. For example, Rio Tinto's human rights policy recognises that when it identifies human rights-related issues, "some risks may arise from the cumulative impact of multiple operations and may not be solely attributable to Rio Tinto".

Learning from the ESHIA field

There is little published guidance in relation to cumulative human rights impact assessment. However, companies in the extractives industry are likely to be familiar with environmental "cumulative impact assessment" procedures, whether undertaken voluntarily, pursuant to regulation (e.g. in Australia and Canada) or to obtain financing (e.g. through the IFC).

Unlike traditional impact assessment approaches, the assessment of cumulative environmental impacts shares with human rights due diligence the consideration of project impacts from the perspective of the affected ecosystem and community, rather than from the perspective of the company or individual project only. There are useful insights from this field that can be applied in the assessment of cumulative human rights impacts, including the following:

• It is important to identify baseline conditions in an area through engagement with experts and local stakeholders
• Cumulative impacts can aggregate on a linear or exponential basis – and can reach tipping points, after which major changes in environmental, social and economic systems may follow
• It is useful to identify thresholds, which are the carrying capacities of the environment/community in respect of the specific impact (for example, the levels of a certain chemical in a river or air shed after which communities' fishing activities or health are impacted).

Companies new to the management of cumulative impacts might consult the following:

• The IFC's Good Practice Handbook on Cumulative Impact Assessment and Management: Guidance for the Private Sector in Emerging Markets
• The Centre for Social Responsibility in Mining's Cumulative Impacts – A Good Practice Guide for the Australian Coal Mining Industry

Companies' existing techniques of assessing and managing cumulative impacts in the ESHIA field can, to the extent that they do not already, be strengthened and expanded in scope to explicitly take into account impacts on human rights, and not just general social and environmental impacts. In this context, it is important to keep in mind the particularities of human rights due diligence (HRDD) pursuant to the GPs, including the need to

• Assess impacts in the context of international human rights law and, in conflict zones, international humanitarian law.
• "Cease" or "prevent" contributions to impacts and use leverage to mitigate any remaining impact to the greatest extent possible (as opposed to the various regulatory obligations to "describe" or to "minimise" cumulative impacts in the ESHIA field).

Defining the scope of assessment – and separating out responsibility

Inevitably, companies conducting impact assessments face limits on their resources and time, and cumulative impact analysis poses the challenge of a potentially wide scope of analysis. To understand if they are contributing to an impact, companies need to look into the past, present and future to determine the "incremental impact of their activities, products and services when added to other existing, planned and reasonably predictable future projects and developments" – as well as understanding existing baseline human rights conditions. Such information can be gained from reports by reliable local and international non-governmental organisations (NGOs), governments (see further below), trade unions, and international agencies (including UN field missions). Above all, meaningful consultation with various stakeholders will be an essential part of this process.

Secondly, complicated issues of causation can arise when assessing the company's individual contribution to the impact. In the ESHIA field, for example, the IFC notes that cumulative impacts exclude those impacts that "would occur without the project or independently of the project." Sometimes this question is easy to answer; in other situations it can be a complicated one, requiring a range of quantitative and qualitative methods to determine just how a cumulative impact is aggregating. It can be challenging, for example, to obtain data on other developments (whether past, current or future) and to understand how the company's activities are contributing to - or may contribute to - an aggregate impact.

In seeking to understand cumulative impacts, and the individual company's actual or contribution to them, commentators in the ESHIA field recommend:

"[r]esearch [that] helps to understand the processes of [cumulative] impact generation, accumulation and interaction. Research can develop and test technically-rigorous methods that can be applied to identify system thresholds, social limits, triggers to changes in system state, non-linear functional relationships, temporal and spatial extents of impacts, synergism between impacts and the pathways of effects."

In the specific context of human rights, responsible companies tackling cumulative impacts would ideally marry the above approach (where appropriate) with the elements of human rights due diligence set out in the UN Guiding Principles (Principle 18), including

• Drawing on internal and/or independent external human rights expertise
• Carrying out meaningful consultations with potentially affected groups and other relevant stakeholders

Identifying cumulative impacts from the manifestation of risk events

In addition, ‘dramatic' events triggering a "risk response" in the company present a potential opportunity to identify company contributions to cumulative impacts.When a severe risk event occurs, a top-down review across all dimensions of the event, irrespective of its source, can detect involvement in cumulative impacts.

By way of example, where a mine's tailings dam breaks, the company would respond by remediating the impact of the release on the water supply. However, it could also be useful to examine the social and human rights context of the incident and its impacts. This can help the company identify (e.g. through community consultation) the cumulative impacts of the event when combined with of other sources of pollution exposure.

2. ‘Selling' action on cumulative impacts internally and to stakeholders

Where a company is a main contributor to an impact, or alternatively is the last company in an industry or area and brings about a "tipping point" (as explained above), they are likely to have strong ‘buy-in' on the need to detect and manage such contributions. In some cases, however, the company's individual contribution to the impact may be perceived to be relatively small or inconsequential. As a result, it can be difficult to ‘sell' the importance of action internally and to shareholders.

The reputational, financial and legal risks associated with involvement in cumulative impacts have been set out above. Efforts should ideally be made to ‘educate' colleagues about the legal, financial and reputational risks that can arise from company contributions to larger human rights impacts.

It is also useful to highlight that identifying and preventing/mitigating contribution to human rights impacts can offer opportunities for the company in addition to risk reduction. As discussed above, where impacts stem from resource use, addressing cumulative impacts can lead to efficiency gains as the company, examines and refines processes in order to reduce usage – and thereby the contribution to the cumulative impact. In addition, it can enhance company and industry reputation and contribute to the social license to operate.

Innovative internal accounting procedures can also facilitate internal action on cumulative impacts. Where a company decides to expend funds to manage contribution to a cumulative impact, for example, it can be useful to have these costs funded and accounted for separately, so that no individual manager/department is required to bear the costs of a company-wide problem/opportunity.

3. Taking unilateral action to cease or prevent contributions to cumulative impacts

The UN Guiding Principles (Principle 19, Commentary) require companies to cease or prevent its own contribution to a human rights impact, regardless of the actions or inactions of other contributors.

Many responsible companies choose to proactively take action on their own to reduce their contribution to cumulative impacts. Such efforts are sometimes publicised and leveraged as positive reputation enhancers for the company or its brand(s). In June 2012, for example, Disney announced that it would ban all junk food advertising from its TV channels, websites and radio programmes catering to children both to "inspire and encourage [children] to lead healthier lives" and to focus on the "solid" business of health food for children. Disney's chairman stated that

"Companies in a position to help with solutions to childhood obesity should do just that. This is not altruistic. This is about smart business."

On other occasions, more localised action will be appropriate. For example, a company identified that its plant in an emerging market was marginally contributing to a community water-shortage. In response, the company

• Conducted a threshold assessment of the sustainability of the water supply, at peak and average use periods, and considered, inter alia, the impact on local jobs and food grown through irrigation
• Undertook an internal water efficiency program, as well as ensuring full treatment of wastewater

In addition, it engaged with industry, sharing data and best practices with other actors using the water resource, as well as trade associations and unions. The company thereafter engaged the government at various levels, hired a dedicated community relations manager, invested in drip irrigation programs with local farmers and created recharge shafts to accelerate the rehabilitation of the groundwater table.

There are numerous tools available if the due diligence process detects that the company may be contributing to a particular cumulative impact. For example, the Global Water Tool of the World Business Council for Sustainable Development has been used by Caterpillar, The Dow Chemical Company, Lafarge and PepsiCo to enable them to better understand the impact of their operations on local basins, and to address risks around water scarcity and reputation damage amongst local communities, their own shareholders and consumers.

4. Establish or engage in collaborative initiatives to address cumulative human rights impacts

It is clearly possible to imagine scenarios in which a company's responsibility to "cease or prevent" an impact must necessarily take place in collaboration with other actors.

Indeed, cumulative impacts, by their very nature, transcend the boundaries of the individual company. As such, the IFC notes that "the resulting potential management or mitigation measures typically require participation from a larger and more diverse number of stakeholders in order to be coordinated and implemented."

Collaborative initiatives can be the most effective, and sometimes the only, method of alleviating the effects of cumulative impacts on human rights. They provide a useful framework for

• Monitoring potential impacts: For example, joint monitoring schemes conducted through collaborative efforts can identify and trigger pre-determined responses when, for example, levels of contaminant in air or watersheds rise above a certain level
• Remediating impacts: Grievance mechanisms that allow companies to share information and collaborate in remediating grievances can provide solutions that address the cumulative impact as actually experienced by individuals/communities

In addition, collaborative initiatives can

• Providing a cost effective solution for companies
• Plug gaps in human rights due diligence and risk assessments through information sharing
• Help to avoid the disproportionate ‘spotlighting' of high-profile companies whose contributions are otherwise minimal

Sometimes collaborative initiatives will be most effective if they are ‘industry-only', thereby creating a ‘safe space' in which participants can work together candidly. Such initiatives can allow for information and technology sharing between members to try to address environmental and social impacts in the industry or area of operation. For example, the 13 companies that make up Canada's Oil Sands Innovation Alliance (COSIA) report progress including "the sharing of 560 technologies and innovations that cost US$900-million to develop, the selection of 185 projects with high potential worth US$500-million, and the identification of gaps that need further action". COSIA is currently the subject of a Harvard study considering whether the alliance may act as a model for other companies seeking to address common issues such as environment and social impacts.

Where the initiative involves competitors working together, the inclusion of a neutral third party can help facilitate the process. For example, Achilles, a for-profit provider of supplier management information, plays a neutral facilitation role in the UK Utility Vendors Database (UVDB), through which four major UK utility companies share information. This is with the aim of shortening the sector's procurement cycle, improving market intelligence regarding suppliers and addressing supply chain corporate responsibility for human rights impacts.

Collaborative initiatives can also involve a broad range of participants from other companies, community representatives, vulnerable groups, NGOs and government. Such multi-stakeholder forums facilitate transparency and trust, and allow timely discussion about actual and potential cumulative impacts to take place between companies and community representatives. Two further examples from the environmental field in Canada include the following:

• The Cumulative Effects Management Association (CEMA) was established after leading Alberta oil sands industry companies felt that "a project by project assessment of cumulative impacts was inefficient and ineffective." Their initial working group was expanded to include additional government bodies, local environmental groups, and First Nations representatives.
• Cardinal River Coal (CRC) conducted a cumulative effects assessment in respect of its 1996 development of the Cheviot Mine Project in Alberta. The assessment found that the new mine would contribute to regional pressures on grizzly bears (including pressures relating to existing forest harvesting, mining, oil and gas operations, and government managed recreational activities) that were reaching the point where “population losses will become serious and perhaps irreversible”. Cardinal River Coal proposed that a “Carnivore Compensation Package” be created, to be jointly supported by the new mine, the dominant forestry company in the area, some oil and gas interests and the government. A regional committee, based on co-management between the provincial, federal and regional levels of government, scientific experts, industrial stakeholders and citizen groups, was to clarify wildlife management objectives and develop plans for achieving them. The programme was discontinued, however, before this could be achieved.

The ultimate failure of the latter programme provides valuable insight for future multi-stakeholder collaborative initiatives. A Regional Carnivore Management Group was in fact set up by legislation in 1999, but was terminated in 2003 following a provincial government reorganization. An academic study of the initiative found that its failure at the implementation stage might have been avoided if:

• The initiative had had greater ability to make decisions on its own: the provincial government was able to "contain" the decision making process, and the government's administrative changes were sufficient to terminate it
• There had been greater public involvement in decision making: interviewees described the process as being "dominated"by industry and government. This hurt its legitimacy and led to environmental NGOs withdrawing from the process in 2001 citing "collusion" between government and industry

Learning from collaboration in the ‘commons' field

Many cumulative impact challenges – and those relating to the environment in particular – relate to what is called the ‘commons' – land or resources belonging to, or affecting, the whole of a community. The ‘tragedy of the commons' is the well-known 1968 economicstheory ofGarrett Hardin, who noted that self- interested individuals acting independently and rationally according to their self-interest will deplete shared resources – even though they know that depleting the common resource is contrary to the group's long-term best interests. He suggested that top-down, coercive measures are necessary in such circumstances.

Later economists argued that local cooperation to manage the commons is possible, as self-interested individuals can learn that collective restraint serves both collective and individual interests. Nobel Prize-winning economist Elinor Ostrom identified what she saw as the main challenges to bringing about such cooperation, including:

• Coping with free-riding
• Solving commitment problems
• Arranging for the supply of new institutions
• Monitoring individual compliance with sets of rules

Based on the Achilles example (cited in the previous section), one might also add:

• ‘Gaining consensus' amongst participants
• Avoiding "lowest common denominator" solutions
• Copying with "differing levels of experience and knowledge" about human rights

Ostrom's research into local collaborations in the 1990s concluded that initiatives to manage the commons can take place without regulatory coercion, provided they exhibit the following design principles:

• Group boundaries are clearly defined
• A system for monitoring member's behaviour exists (the community members themselves undertake this monitoring)
• Rules governing the use of collective goods are well matched to local needs and conditions
• A graduated system of sanctions is used
• Most individuals affected by these rules can participate in modifying the rules
• Community members have access to low-cost conflict resolution mechanisms
• The right of community members to devise their own rules is respected by external authorities
• There is an appropriate institutional structure in place. For example, in the grizzly bear example above, academics argued that decision making and other responsibilities were unhelpfully concentrated in the hands of the provincial government, rather than being delegated to the collaborative initiative

Achieving ‘cross-boundary' leadership

At a minimum, collaboration to address cumulative impacts requires companies to engage ‘across boundaries' with representatives from other companies who may be from different industries, locations or markets. This can be challenging for many obvious reasons, including differences in corporate culture, differing commercial drivers, the degree of engagement on human rights issues and/or reputational exposure. Missions or embassies in the host country can provide contacts for appropriate people in other companies, and local NGOs or international organisations operating locally can assist with navigating across industries in order to engage with others to tackle impacts collaboratively.

The ability to engage in ‘boundary-spanning' leadership is the subject of an emerging field of corporate leadership studies. As challenges become more complicated, interconnected and global, the Centre for Creative Leadership (CCL), a non-profit organisation focusing on leadership education and research, advises that more effective boundary-spanning corporate leadership is needed to solve them. A 2008/9 CCL survey of 129 senior executives identified what the authors called the "critical gap" between the:

• 86% of senior executives who said that it is "extremely important" for them to work effectively across boundaries in their current leadership role; and the
• 7% who believe they are currently "very effective" at cross-boundary leadership.

Moreover, the UN Global Compact recently published the results of a 2013 survey of 1,000 CEOs across 103 countries and concluded, inter alia, that transformational leaders in sustainability see ‘partnerships and collaboration' as one of seven key themes that guide the decision making:

"[A]mong sustainability leaders – those companies achieving superior business performance and impact on sustainability challenges – we can see the beginnings of a collaborative, systems approach to sustainability … [including] collaborating within and across industries and sectors…"

5. Engage governments on cumulative impacts

Companies usually look tostate regulation to manage, or at least to provide the structurefor managing,cumulative harms to which theycontribute incrementally. Indeed, pursuant to the UN Guiding Principles, states have the foremost duty to protect people under its jurisdiction from human rights abuses, including cumulative impacts, through (inter alia) effective legislation and regulation.

Responsible companies overwhelmingly report a preference for well-managed, predictable regulatory frameworks that level the playing field and provide a stable operating environment. In the specific context of cumulative impacts, the active participation of government is desirable to:

• Assess the incremental contribution of several project to cumulative impacts
• Monitor and enforce the implementation of the mitigation measures corresponding to each project
• Identify the additional mitigation measures required
• Coordinate, ensure and document their implementation

However, situations can arise in which government action to address cumulative impacts, for example by way of regional assessments, is absent or weak. According to the IFC,

"the reality is that these frameworks are rarely available in emerging markets, and more often it is left to the private developer to try and take into consideration not only its own contribution to cumulative impacts, but also other projects and external factors that may place their developments at risk."

Moreover, a lack of official understanding of cumulative human rights impacts can even lead to situations in which the government positively require companies to follow directives that contribute to such impacts. A leading mining and metals company that was engaged in the development of this paper reported that government directives given to several companies concerning the resettlement locations for displaced communities both exacerbated human rights impacts and made it difficult to mitigate the same.

Where governments lack awareness around cumulative impacts, responsible companies can play an important role in improving understanding of the issue. The IFC's Good Practice Handbook on cumulative impact assessment (which focuses on cumulative environmental impacts), provides suggestions for companies operating in jurisdictions in which there are no regional planning or collaborative resource management mechanisms. Transferrable suggestions include:

• Discussing the purpose, process and requirements of the company's cumulative impacts assessment process with government at an early stage
• Stressing the benefits of government participation and collaboration in cumulative impact assessment, proposed management strategies and impact monitoring

Engaging government on human rights issues of any kind can be challenging, and in the case of cumulative impacts, can be particularly difficult when the government is a co-contributor. Government representatives may be more likely to be responsive if the process also involves an authoritative third party, such as an independent consultancy or reputable NGO.

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Cumulative human rights and impacts can be caused by various activities and actors, and can often be the impacts most severely affecting communities. The table below offers some examples of cumulative human rights impacts, and the source of the rights. ‘ICESCR' represents the "International Covenant on Economic, Social and Cultural Rights".

Right	Source of right	Examples of cumulative impacts
Right to health	ICESCR, Article 12	Reduced water availability for local communities as a result of the collective demand from multiple mines on groundwater Increased transmission of HIV/AIDS as a result of increased in-migration to major extractive projects The targeted advertising of high-sugar foods and drinks at children by multiple retailers – contributing to long-term child obesity Long-term health problems amongst local people as a result of cumulative air and water emissions from multiple industrial facilities concentrated into a single area
Right to adequate standard of living (right to food)	ICESCR, Article 11	Water emissions from several factories that flow into a single waterway – reducing fish stocks and undermining local livelihoods and nutrition
Right an adequate standard of living (right to housing)	ICESCR, Article 11	Price inflation, pressures on social services and increased levels of anti-social behaviour in towns near to or hosting extractive projects that attract a large influx of actual/aspiring workers and their families (e.g. housing, rents and access to medical services).
Right to enjoy just and favourable conditions of work	ICESCR, Article 7	Pressures placed upon a supplier by several customer companies during peak periods, causing them to encourage their workers to exceed safe overtime limits.

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