Focusing on the State Duty to Respect Human Rights--The UN Working Group and National Action Plans

I have suggested the way the the Guiding Principles for Business and Human Rights, since its endorsement in 2011, has increasingly emphasized the first pillar obligations--the state duty to respect human rights.  More troubling, perhaps, is the way in which that state duty to protect human rights appears to have become the foundation through which both the second pillar corporate responsibility to respect human rights and the remedial pillar are both constrained and understood.  (e.g., The 2nd U.N. Forum on Busness and Human Rights Live Streaming and Thoughts on Trends in Managing Business Behaviors, Dec. 3, 2013).  As part of this institutional focus on the state in the Guiding Principles, the Working Group has devoted substantial resources to the toolkit development potential of so-called National Action Plans. These are meant to provide the framework for state intervention in the business of human rights for economic activity.  And to that extent they may well be useful devices.  Yet the focus on National Action Plans also suggests possible divergence from the overall objectives and structure of the Guiding Principles.  The first touches on the way that Naitonla Action Plans may evidence a turn toward the creation of a hierarchy among the three pillars of the Guiding Principles.  The Second touches on the short sighted efforts to legitimate and expand the extraterritorial power of state.

From the first, the Working Group has emphasized the importance of the state duty to protect the the fountainhead of regulatory coherence (within itself a system that has traditionally produced as much incoherence through national deviation as coherence through the adoption of chapeau standards non-uniformly enforced or even understood) and has sought to understand the scope and nature fo the corporate responsibility to respect human rights and the remedial obligation through the lens of the state duty.  At the same time, the Working Group has increasingly committed itself to the project of deepening state involvement in the regulation of the human rights detrimental effects of business activity both within their borders and extraterritorially, to the extent of their power.  

Indeed, the focus of this consultation, aimed at subsuming the corporate responsibility to respect human rights within the aegis of the state duty to protect might.  Taken to its limit, this trend will substantially transform the Guiding Principles from  a framework of collaboration among distinct autonomous governance organizations--states, enterprises and international organizations--into a 20th century framework of state grounded legal silos.  That will, in turn, return us to the framework of regulatory incoherence and governance gaps that prompted John Ruggie's work in the first place, the fruit of which was the Guiding Principles.  The corporate responsibility to respect is both transnational in character, that is it derives its principles from sources beyond the state, nor can it be limited by the peculiarities of the expression of state power.It is a critical feature in a global dialogue that was meant to foster change both from the top down and the bottom up, sensitive to the preferences and customs of all critical stakeholders.  The partitioning of the corporate respect for human rights into little corporate culture nationalities effectively writes the second pillar out of the Guiding Principles and turns it merely to an expression of technique--human rights due diligence in the service of the state and not in the service of the individuals who suffer human rights deprivations.

Secondly, to the extent National Action Plans are seen to promote extraterritoriality (now quite fashionable among certain influential sectors of internationalist elites), even under the guise of furthering the international soft law agenda of devices like the Guiding Principles, they will exacerbate the move toward institutionalizing the hierarchy of states, reintroduce the old notion of the "Family of civilized States" and thus a trend toward the revival of neo-colonialism and hegemony now softened by its purported basis in internationalization.  (e.g., Backer, Larry Catá, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order. University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006) But more troubling might be the way that the National Action Plans might well serve (no doubt inadvertently) to displace the corporate responsibility to respect human rights, and to subordinate it to, and restrict its expression through, the state duty to protect human rights.

The movement toward this new framework is nicely reflected in a recent consultation of the Working Group. From  UN Working Group events & Sessions of the Working Group > Seventh session - 17-21 Feb 2014:

As part of its seventh session, the Working Group held an open consultation on "The strategic elements of National Action Plans in the implementation of the Guiding Principles on Business and Human Rights".

The consultation is open to all stakeholders. Registration is open until 18 Feb.
Concept note
Panellists
Registration form (if you have any registration queries please email: registrationwgbusiness@ohchr.org)
Maps Pregny Building and Palais des Nations
Practical information
Submissions & presentations


More than 175 representatives from States, civil society and business attended the consultation - vice-chair of UN Working Group Michael Addo's opening remarks are available here.

Stakeholders who are unable to attend may also submit their input to the Open Consultation in writing to: wg-business@ohchr.org. A listen-in number will be enabled to listen to the exchange. On 20 February 2014 at 15:00 (Central European Time), please dial +41 22 917 0901 and follow the voice prompt. When prompted for the conference room number, type "18" and then select the desired audio channel. Please check the Working Group website in case there has been a change in the conference room number.

The new approach is nicely articulated by Professor Michael Addo, the vice Chair of the Working Group.  The Statement Read by Michael K Addo Vice-Chair of the Working Group on Business and Human Rights, follows:

Statement Read by Michael K Addo Vice-Chair of the Working Group on Business and Human Rights

Open Consultation on the strategic elements of National Action Plans in the implementation of the
UN Guiding Principles on Business and Human Rights
20 February 2014

1. Introduction.

Excellencies, distinguished delegates, colleagues, ladies and gentlemen. I too wish to join the Chair of our Working Group in welcoming you to this Open Consultation on National Action Plans and to affirm the importance of your contribution to the development of our strategy to promote the implementation of the UN Guiding Principles on Business and Human Rights.

You will recall that at its sixth session in November 2013, the Working Group resolved to devote its 2014 report to the General Assembly to the subject of National Action Plans. The purpose of this
Open Consultation is to solicit and explore the views of all stakeholders on the strategic elements of National Action Plans, with particular attention to:

 The role of different stakeholders in the development of National Action Plans;
 Key substantive content for National Action Plans, such as policy guidance on reporting, procurement, capacity building and potential regulatory reform aimed at addressing the legal and practical barriers of access to remedy;
 The implementation and periodicity of review of National Action Plans;
 The importance of National Action Plans in the Global South and the challenges facing their development across this wide region.

The outcomes from this Open Consultation will feed into the Working Group's general work and, specifically, its 2014 report to the UN General Assembly.

Beyond the General Assembly Report the Working Group expects to continue its learning and sharing of knowledge on National Action Plans through a dedicated portal on its website and through further discussions with stakeholders. In this regard, the Working Group, in collaboration with its partners, proposes to develop an Implementation Guide for National Action Plans-the preliminary version of which is expected to be published later this year.  The aim of this will be to provide support through the sharing of common understandings between stakeholders. The Implementation Guide will providean opportunity for the Working Group to express its thoughts on emerging evidence of good practice in the implementation of the Guiding Principles.

In seeking to inform our deliberations today,  I will speak about the strategic value of National Action Plans, as well as the processes by which they may be formulated and the actual content that they touch upon. 

The Value of National Action Plans

National Action Plans have always been part of the Working Group strategy adopted in 2012 for the implementation of the Guiding Principles. Two years down the line, further reflection and available evidence suggest a stronger and dedicated focus on National Action Plans because of the qualitative
characteristics they bring to the implementation of the Guiding Principles. It is important to note in this regard that:

a.National Action Plans can accommodate all three pillars as required by the holistic and integrated implementation of the Guiding Principles;
b. They are a sufficiently flexible instrument to respond to the diversity of business and human rights problems that a country might face as well as the diversity of regulatory environments;
c. In a related sense, therefore, National Action Plans support the organic implementation of the Guiding Principles based on the identified needs of the individual community rather than on the experience of another community;
d. Nevertheless, National Action Plans allow for shared learning between communities of stakeholders.

With the attraction of National Action Plans as an instrument for the implementation of the Guiding Principles one can easily overlook some basic and yet searching questions such as:

a. How to initiate a National Action Plan;
b. What processes make a National Action Plan effective?
c. Whether there is a minimum content for a National Action Plan?
d. What international process can encourage State commitment?
e. How often should the content of a National Action Plan be revisited and reviewed?

It is to these and similarly important questions that we are hoping you would turn your attention during this Open Consultation and for which I propose the following general reflections:

In general, the Working Group expects that, within government, steps should be taken to ensure policy coherence based on clear leadership. In addition, we all agree that consultation, especially multistakeholder consultation, is an important part of the National Action Plans process. It willbe useful to hear your thoughts on what form these processes should take and what challengesthese process elements throw up?Is there evidence of good practice for responding to these challenges?

In some jurisdictions, the objective may be to develop a standalone National Action Plan on implementation of the Guiding Principles, whilst others may elect to develop their plan as a component of a broader human rights or CSR strategy. Is there any value in one or the other approach? Other issues upon which you may wish to reflect include:

 Whether there is an optimal model for a National Action Plan? How can implementation goals best be achieved without duplicating existing efforts, creating potential redundancies and using resources inefficiently?
 How might the State maximise internal resources and draw upon external expertise?

Evidence gathering and consultation.

The development of a National Action Plan is likely to involve a form of baseline assessment and analignment of existing law and policy against the Guiding Principles. This is always a good starting point for the development of National Action Plans for the implementation of the Guiding Principles because the outcomes and lessons from this exercise will inform the development of strategy and planning. Nevertheless, it is also true that the essential components of the State's planning and implementation are likely to develop and evolve over time before the emergence of distinct areas of prioritisation. Staging and staggering of the policy strategy of the National Action Plan may in certain circumstances, be an effective way forward. In all cases, transparent consultations with stakeholders will ensure that the vision of the government on its strategy is communicated to all those who have to work with the National Action Plan or to assess the extent to which their input was taken into account in the draft or final National Action Plan. 

Excellencies, distinguished delegates, ladies and gentlemen, you may wish, in your contributions to this Open Consultation to reflect on:

 The sequence and interaction between evidence-gathering and the development/publication of a National Action Plan?
 Whether it it generally expedient and preferable that a National Action Plan be developed ahead of a full evidence-gathering exercise, and, if so, how should priorities be established?
 What are the benefits and disadvantages of reliance on internal resource or external expertise, particularly when assessing policy effectiveness and the practicalities of implementation within a State's legal, regulatory and adjudicative frameworks?
 What role stakeholders including NHRIs, civil society and the business community may play in identifying national issues and priorities; in conducting baseline studies?

Substantive content

All three Pillars of the Guiding Principles should be addressed in a National Action Plan. Content must be State-specific but certain policy areas may be identified as commonly relevant to all States in the implementation of the Guiding Principles. Leading by example, the State’s own business activities through State-owned enterprises, its procurement policies, its public-private initiatives and its export credit guarantee schemes should be fully aligned with the Guiding Principles and affirmed in the National Action Plan. 

The focus of government involvement with business should be complemented by similar guidelines or indeed legislation for ensuring that business enterprises respect human rights in all their activities. The circumstances of the individual country may suggest that the leadership for business alignment be recognized within the business community itself, and where necessary within specific industries. The management of supply chains is an excellent example for which sector leadership may be more expedient.

The phrase ‘to know and show’ has relevance in a National Action Plan also. It suggests the expectation for companies to be able to communicate how they respect human rights or redress adverse human rights impacts in their activities. [Guiding Principle 21]. In the context of a National Action Plan for the implementation of the Guiding Principles, it is appropriate for States to reinforce the message about the importance of communication or indeed require it as part of the reporting expectations of their incorporation. This initiative need not be a totally new and unrehearsed requirement. In fact, it could be an additional line in current corporate reporting undertakings. For some corporations that already report and communicate on their activities using the fourth generation Global Reporting Initiative (GRI) standard, human rights and the Guiding Principles form a distinct line for assessment.

Ensuring that there are effective remedies in the event of adverse human rights impacts is another of the key subjects to which a National Action Plan should devote space and attention. This issue requires a holistic and complementary response in the National Action Plan in which the adequacy ofjudicial and non-judicial mechanisms alongside corporate grievance mechanisms are assessed. Indeed, a National Action Plan should reflect on the value of existing mechanisms in responding to the adverse corporate human rights impact. In this regard, States should take steps to address legal and structural barriers to effective judicial remedy alongside the enhancement of non-judicial mechanisms such as the National Contact Points under the OECD Guidelines for Multinational Corporations or the redress mechanisms offered by NHRIs should be further secured. A fully integrated and comprehensive regime for the effective redress of adverse corporate human rights impacts may emerge after a period of time but in the short term, sufficient policy adjustments shouldbe put in place right away to address impunity.

In view of the extra-territorial impact of corporate activities, calls for governments to have clear policies on the extra-territorial application of corporate policies is a legitimate one. The Guiding Principles acknowledge that whilst there is no requirement in international law for States to apply policy standards or assume jurisdiction for extra-territorial activities of their corporations, there is no prohibition either. National authorities are free to develop such standards and a National Action Plan is a good place to initiate mechanisms on this complex subject.


Reporting and review

In the end, National Action Plans should be regarded as an evolutionary process that require monitoring and review over time. To this end, National Action Plans should indicate objectives which may be measured by reference to particular actions and timeframes. It may be desirable to nominate a specific department, unit or entity to follow up and report on progress. The review process should be sufficiently transparent to enable stakeholders to evaluate the status of implementation on an ongoing basis.

Excellencies, distinguished delegates, ladies and gentlemen, we have an opportunity through our deliberations here today to contribute to positive change. This is the least that world out there expects of us. Let us take that responsibility seriously.