Human Rights based Approach (“HRBA”) refers to a framework that has been put in place to ensure that active measures are taken by stakeholders inclusive of governments, organizations and others, to formulate policies around the globe that are duly in consonance with the precepts of human rights. The following article lays due emphasis on what in essence HRBA is and also lays focus on the multiple criticisms that currently exists with regard to its overall implementation in energy and infrastructure projects. Additionally, focus is also placed in understanding the role that India could adopt with reference to HRBA in energy and infrastructure projects that are carried out in the country.
In 2022, Indiastarted developing multiple energy infrastructure projects, such as (a) the 1 GW solar plant in Bikaner, Rajasthan, whichaims to develop a grid-connected solar project; (b) the renewable energy supply round-the-clock which uses battery storage thatovercomes the intermittency associated with sunshine and wind, and, (c) the renewable energy park located in the state of Gujarat which sets tooperate with both windmills and solar panels.
Throughout history, scandalous human rights violations have been reported in energy projects, regarding -among others- massive land grabs, forced displacements, marginalization, exclusions, and violation of labour rights. These situations are continuously happening around the globe. Just to name a popular example, Qatar’s preparation for the 2022 FIFA World Cuptriggered a massive building program that mapped the construction of not only stadiums but other infrastructure such as hotels, roads, and public transport systems. Around 500 migrants thatcame to work in the construction of infrastructure in Qatar from multiple countries, such as India, Nepal, Bangladesh, Pakistan, and Sri Lanka, died. Many moresuffered multiple human rights violations, including forced labour, wage abuses, limited means to lodge complaints in case of disputes with their employers, and many others.
To prevent situations like this, the Human Rights Based Approach (“HRBA”) was created. The mainobjective of the HRBA “is to ensure that projects or policies intended to advance environmental protection and development do not result in adverse human rights consequences”. The HRBAprovides a procedural framework for addressing human rights repressions in the design, approval, finance, and implementation of development projects, and as it will be further explained in this entry, there exists a need for taking this approach in the development of India’s energy infrastructure projects.
Human Rights Based Approach (“HRBA”)
HRBA isdefined as a “conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights”. It emerged as a response to the traditional notion that relegates “human rights to the background in planning processes”. Usually, human rights are a subject matter that is only debated and analyzed when there is a protest or a problem, meaning that human rights are usually addressed when a conflict has already happened or when it is continuously happening. What HRBAintends to do is consider human rights “as parts of the rule of developing and planning” a project.
The HRBA concept wascreated by United Nations agencies in 2003 and has the following elements: first, “assessment and analysis to identify human rights claims of rightsholders and the corresponding human rights obligations of duty-bearers as well as the immediate, underlying, and structural causes of the non-realization of rights”; second “programs assess the capacity of rightsholders to claim their rights and of duty-bearers to fulfill their obligations. They then develop strategies to build these capacities”; third “programs monitor and evaluate both outcomes and processes guided by human rights standards and principles”; andfourth “programming is informed by the recommendations of international human rights bodies and mechanisms”.
To ensure these elements, the HRBAadvocated mainstreaming five interconnected principles, which are- participation, access to information, non-discrimination and equality, accountability, and legality. These principles are called the PANEL principles. HRBA proposes to implement these principles “in the design, approval, finance, and implementation of projects” by doing so, it anticipates the overall human rights impact of a project and it takes the necessary measures to mitigate any risk.
Criticism of the Human Rights-Based Approach (“HRBA”)
The first criticism that academics have made towards the HRBA is whether it is -truly- a practical approach. As the previous section explained, some specific elements and principles constitute the HRBA. However, as Beveridge and Nott noted, “[t]he somewhat vague and non-specific character of the concept of mainstreaming has probably aided this rapid ascendancy; everyone understands the general idea, but no one is sure what it requires in practice” . What academics refer with this criticism is that even if the elements and principles of HRBA exist on paper, it is not clear what each one of them means in reality when approaching a project . It is unclear how PANEL principles will personify in reality. There are no clear and concrete actions that constitute a manifestation of HRBA. This lack of clarity leads to the belief that HRBA is an approach that is only ideal on paper.
Connected to the aforementioned, the second criticism of the HRBA is its difficulty tooperationalize projects in local contexts. Commentators have argued that successfully achieving an HRBA may be difficult depending on the local context; a ‘rights-based’ approach does not necessarily replace a ‘needs-based approach’ . Each country has different legal agendas, legal frameworks, and political tensions that make it difficult to accomplish a HRBA. Additionally, the needs of every country vary; they depend on the economic, political, and social sectors. Not every problem has a ‘one size fits all’ solution. Instead of having an HRBA, commentators think there needs to be a ‘needs-based approach’ that focuses on each country’s special needs.
The last criticism regarding HRBA is the matter of accountability. Usually, big infrastructural projects are incharge of private companies that have the experience and the economic strength to develop those projects. Under international law, the State is the principal duty-bearer concerning the human rights of the people living within its jurisdiction . However, there is no forum nor national in India or international- that oversees the actual fulfillment of the HRBA, and there is no body that specializes in the reviewing and sanctioning of projects that do not fulfill the HRBA. As Uvin stated, “the very move from charity to claims brings about a focus on mechanisms of accountability. If claims exist, methods for holding those who violate claims accountable must also exist. If not, the claims lose meaning” .
India’s opportunity to take a Human Rights Based Approach (“HRBA”) in Energy Infrastructure Projects
India’s Prime Minister has prioritized energy infrastructure projects in the country’s agenda. At the 2021 United Nations Climate Change Conference (COP26), Narendra Modi announced that the country wouldescalate its displacement and raise its renewable energy capacity target for 2030 by 50GW to 500GW4. He alsocommitted to reaching net zero by 2070. To achieve those goals, India has focused on developing solar assets and a sustainable energy transition. Examples of the aforementioned are the 1 GW solar plant in Bikaner, Rajasthan, which aims todevelop a grid-connected solar project; the renewable energy supply round-the-clock, which uses battery storage thatovercomes the intermittency associated with sunshine and wind and; the renewable energy park located in the state of Gujarat which sets tooperate with both windmills and solar panels. All of these projects are key examples of infrastructure projects that can take an HRBA.
India can prevent multiple human rights violations by implementing HRBA in its energy infrastructure projects. To do so, first, it mustcentralize knowledge and understanding of human rights related to energy infrastructure. The development of interdisciplinary academic studies that can give clear guidelines on how to address human rights on energy infrastructure projects are key to implementing HRBA. Additionally, “all States need to take steps, individually and through international cooperation and assistance, to ensure that national statistical organizations around the world have sufficient capacity to produce reliable data, including disaggregated data to effectively eradicate” all forms of violations of human rightsconnected with energy, and particularly connected to energy infrastructure projects. With a clear and comprehensive understanding of human rights in energy infrastructure projects, a clear and comprehensive HRBA -that embodies the PANEL principle of access to information- can be implemented.
Second, India must include the representation of all rightsholders in the design, approval, finance, and implementation of energy infrastructure projects. “Ensuring informed and effective participation of rightsholders in these processes isessential to shedding light on systematic human rights violations connected” with energy infrastructure projects. “This oftenrequires rearranging and reconfiguring institutional arrangements throughout the policy cycle: inclusive agenda setting, policy analysis, and formulation, decision making, implementation and evaluation” in all energy infrastructure projects. Moreover, the development of energy infrastructure projects must consider -as India’s prime minister has prioritized- the transition to a sustainable energy system. “All States musttake steps to effectively consider and utilize the best available scientific evidence on ecological limits, the human rights implications of disrespecting those limits, and the possibilities for a human rights-based energy transition that leaves no one behind”. Infrastructure projects with an HRBA mustconsider the creation of employment opportunities, prioritize health and boost economic resilience. By doing so, the PANEL principles of participation, legality, and non-discrimination could be fulfilled.
Third, India mustsecure that litigation in energy infrastructure projects includes action and inaction for human rights violations. “Human rights, by contrast, reflect not only aspirational values but also constitute legal entitlements of peoples and individuals with corresponding legal obligations of States”. Taking an HRBA on energy infrastructure projects helps India to fulfill international human rights obligations, including making accountable the actors responsible for human rights violations. All these actions comply with the PANEL principle of accountability.
Even if criticism towards HRBA can be made, the object and purpose of HRBA is to keep human rights at the centre of the design, approval, finance, and implementation of energy infrastructure projects. Taking this approach is groundbreaking; it considers human rights from the very beginning of a project, not only when there is litigation that considers this subject matter. Addressing human rights from the planning of a project helps India develop a ‘preventive approach’ regarding human rights violations instead of a ‘reactive approach’ when human rights are only addressed when there is a problem or conflict.
Furthermore, HRBA advocates the implementation of the PANEL principles, which are: participation, access to information, non-discrimination and equality, accountability, and legality. If India considers these principles in every step of developing energy infrastructure projects, multiple human rights violations could be prevented.
 Fiona Beveridge & Sue Nott, Mainstreaming: A case for optimism and cynicism, 10 Feminist Legal Studies 299, 299-311 (2002).
 Andrea Cornwall & Celestine Nyamu-Musembi, Putting the ‘Rights-based approach to development into perspective, 25:8 Third World Quarterly 1415, 1415-1437 (2004).
 Peter Uvin, Human Rights and Development, 1:3 Global Public Health 278, 278-281 (2006).
About the Author
Ms. Catherine Pena Linares is an Advocate at Suarez Camacho Abogados, Bogota, Columbia.
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Preferred Method of Citation
Catherine Peña Linares, “Criticisms related to Human Rights Based Approach (HRBA) in Energy Infrastructure Projects: With reference to India” (IJPIEL, 7 February 2023)