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RIGHTS AND OBLIGATIONS

10.0 Mutual Obligations

10.1 Information to Local Government
The State and the Company must keep Local Governments regularly informed about activities under this agreement.

10.2 Applicability of IFC Performance Standards and Equator Principles
Where Applicable Law and regulations on environmental and social impact assessment and management, and pollution prevention are less stringent than the IFC Performance Standards, the Company shall undertake its activities in a manner consistent with the IFC Performance Standards. To remove any doubt, the Company and the State recognise that the IFC Performance Standards outline processes to be followed enabling site-specific environmental compliance limits to be developed, where required.

10.3 Parties’ Commitment to Protecting Human Rights

(a) The Parties each commit themselves to the protection and promotion of the human rights of all individuals affected by the Project, as those rights are articulated in the United Nations’ 1948 Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and Applicable Law.
(b) In all dealings between Company security departments and the police, military, or other security organs of the State, the Parties pledge themselves to comply with Applicable Law and to respect the guidance set forth in the Voluntary Principles on Security and Human Rights.
(c) The Company shall ensure that its operational policies reflect the responsibility to respect human rights and that the policies have the objectives of preventing, mitigating and remediating any potential or actual negative human rights impacts from Mining Operations.
(d) A process to procure an independent assessment of the potential for human rights impacts from the presence and activities of the Project, and how the Company’s policies, procedures, and practices affect the human rights of the population in the area of the Project, such process will be guided by the tenets of transparency, independence, and inclusivity, as defined by international standards.

*Please see 19.3 Security for additional examples relevant to human rights.

Example 1
Relocation under IFC and World Bank Social and Environmental Policies and Guidelines
The Government, in accordance with Applicable Law, agrees to relocate the persons residing in the [affected area] under the Social and Environmental Policies and Guidelines of the International Finance Corporation (IFC) and the World Bank, such relocation being budgeted at _____ USD.

Example 2
IFC Safeguard Policy on Natural Habitat; November 1998
The Parties agree to comply with the substantive environmental and social principles prescribed by this Policy.

Example 3
IFC Policy Statement on Forced Labor and Harmful Child Labor; March 1998
The Parties agree to comply with the substantive environmental and social principles prescribed by this Policy, with the following procedural exceptions and modifications:

(a) Paragraph 5 of the Policy, entitled “Responsibilities of the IFC Project Team”, shall be deemed to read as follows:

Responsibilities of the Parties.
A Party and/or its directors, officers, employees or agents who witness or suspect potential incidences of harmful child labor associated with this Agreement will contact the Environmental Management Panel for further information on how to appropriately deal with the issue. The Environmental Management Panel will then determine the facts of the situation, review options and recommend a course of action consistent with this Policy. If harmful child labor is identified as a potential issue, the Parties will meet and negotiate an appropriate mitigation plan to eliminate or avoid harmful child labor.

(b) Paragraph 6 of the Policy, entitled “How Can Project Sponsors Reduce and Manage the Risk?” shall be deemed to read as follows:

How Can the Parties Reduce and Manage the Risk?
To assist in combating harmful child labor, the Parties should review:

• The age and employment profile of all people under 18 working in the business, paying particular attention to young people under school leaving age;
• Present workplace conditions (i.e., occupational health and safety conditions including exposure to machinery, toxic substances, dust, noise, ventilation);
• Work hours and nature of the work; and
• Local and national laws governing child labor.

Following this assessment, the Parties should:

• Eliminate those cases of harmful child labor which may exist in the business, taking into account the welfare of the child; and
• Set a corporate minimum work age and develop a corporate policy statement against harmful child labor.

Example 4
21.1 Obligations
The Government shall fulfill its obligations under this agreement while acting in accordance with its international human rights obligations as they develop from time to time.

21.2 Human Rights Instruments
The Company acknowledges it responsibility to respect human rights as set out in:

(a) The Universal Declaration of Human Rights;
(b) The International Covenant on Civil and Political Rights;
(c) The International Covenant on Economic, Social and Cultural Rights;
(d) The International Convention on the Rights of the Child;
(e) Convention on the Elimination of all Forms of Discrimination against Women;
(f) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(g) The Indigenous and Tribal Peoples Convention (ILO No. 169);
(h) The International Convention on the Elimination of all Forms of Racial Discrimination; and
(i) All international human rights instrument to which the State is a party.

21.3 Company Undertaking
In order to meet the obligations set out in this Article, the Company shall

(a) Seek to prevent, mitigate and remediate all negative human rights impacts resulting from its activities or through its relationships with third parties relative to this agreement;
(b) Undertake an initial, independent human rights impact study prior to initiating the Development Plan set out in this Agreement, to determine where its activities or relationships (including any anticipated security measures) may have a negative impact on human rights, and update this study on an annual basis;
(c) In all dealings between the security personnel of the Company, or the Company’s Contractors or Subcontractors, and police, military or other security forces of the State, assure compliance with the norms of the Voluntary Principles on Security and Human Rights.
(d) Ensure that its operational policies reflect the responsibility to respect human rights and that the policies and procedures required to prevent, mitigate and remediate any potential or actual negative human rights impacts from its operations or relationships, taking into account the above-mentioned impact studies, are in place;
(e) Remediate any apparent negative human rights impacts from its operations or relationships as soon as is practicable, including through, as appropriate:

(i) Providing adequate compensation or other appropriate remedy to any victim of the negative impact;
(ii) Removing or altering the cause of the negative impact so as to avoid further negative impacts of the same type;
(iii) Revising its operational policies and manuals to seek to prevent a recurrence of the actions or failures to act leading to the violation; and
(iv) Such other actions as may be necessary to avoid similar negative impacts in the future.

21.4 Cooperation

(a) The Government and the Company shall strive to cooperate to the maximum extent possible to ensure the implementation of this Article. They shall seek the cooperation of local communities for this purpose.
(b) The independent human rights impact assessor shall be appointed by mutual agreement of the Company and the local community and have recognized expertise in this field. He or she shall meet with the local community and may meet with any other agency or individual in order to ensure a comprehensive and objective report.

21.5 Complicity in Human Rights Violations

(a) The Government and the Company shall not act or fail to act in a manner so as to be complicit in the breach of human rights by other persons while fulfilling their rights or obligations under this agreement.
(b) For the purposes of this Article “complicity” means acts or failures to act by the Government or Company that knowingly contribute to the violation of human rights by third persons, including other Government agencies or non-State actors.
(c) For the purposes of this Article, “knowingly” is deemed to include acts or failures to act where the party should have known of the relationship of such act or failure to act with a potential or actual violation of human rights. For greater certainty, the mere presence in a country or paying taxes or other payments in accordance with the Applicable Law and this Agreement, does not amount to complicity for the purposes of this Agreement.

21.6 Breach No Excuse
A breach of this provision by one party shall not excuse a breach of this provision by the other party.

21.7 Reports
The initial human rights impact study and the annual updated report shall be made available to the central government office, to a central location in each mine affected province, at the principle Company office in the Mine Area, and at any additional agreed upon location. The study shall be made available in the local language of the area where it is deposited.

21.8 Breach of International Human Rights Law
For the purposes of this Agreement and the Applicable Law, the parties agree that a negative human rights impact does not always constitute a breach of international human rights law has taken place for any other legal purposes.

REFER TO MMDA DISCLAIMERS AND MMDA USER’S GUIDE
PRIOR TO ANY USE OF THIS DOCUMENT.

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