Wednesday, August 09, 2017

A Test for National Action Plans Beyond MNE Home States: Thoughts on the Refusal of the Civil Society Focal Group on Business and Human Rights in Mexico to Endorse the draft Mexican NAP

(Pix source HERE)

The National Action Plan project is one of the crown jewels of the multi-year efforts of the UN Working Group for Business and Human Rights to begin to socialize states in their duty to protect human rights by cultivating state support for corporate respect for human rights. 
The UN Working Group strongly encourages all States to develop, enact and update a national action plan on business and human rights as part of the State responsibility to disseminate and implement the Guiding Principles on Business and Human Rights. (Here; Substantive Elements to be included in NAPs (here); Guidance on National Action Plans (here))
That process has produced some great success--at least as measured by the willingness of states, especially states that are home to many of the great apex multinational enterprises (those that sit at the top of global production chains), to adopt NAPs. That success has not been without its critics, some of whom worry about the use of NAPs to push the state duty downward to states lower on global production chains, and outward to enterprises by legalizing  the (outbound) responsibilities of corporations under the UNGP 2nd pillar (see, e.g., here).   In addition, one might worry about adequate protection for human rights advocates and most importantly the availability of access of remedies precisely where they are (physically) needed most.

Recently states further down global supply chains have started to put together their own NAPs, including several from Latin America: Colombia, Chile, Argentina, and Guatemala. Mexico has advanced toward its own NAP. A draft version of its NAP is available (Spanish only here).  And it is in Mexico where the worry about the utility of the NAP as something more than a gesture toward embrace of the concept of the UNGP has appeared in more robust form.  It was reported on 27 July 2017 that the Civil Society Focal Group on Business and Human Rights in Mexico declined to endorse the draft Mexican NAP.

The non-endorsement letter follows (in English).

The non-endorsement letter ought to be carefully considered for a few reasons, which I briefly reference here:

1. The basic content and character of NAPs for states that do not occupy the highest rungs of global production must necessarily differ from those of the home states of apex multinationals.  These are the states in which the those who are affected by failures of human rights in economic activity tend to reside. These are the states within which the effects of such wrongs are most immediately felt.  And these are the states that ae vulnerable both to the influence of MNEs as well as the states these MNEs call home. Yet these are states in which the legal architecture for compliance with the state duty to protect may be least well developed or operaitonalized, and in which the effort to legalize the 2nd Pillar might provide a means for avoiding state duty by privatizing it through MNE responsibility. 

2. The UNGP will not serve their core purpose if access to remedy remains little more than a declaration of good intentions.  And it is within downstream production chain states that such access must be made available.  But that availability must be both robust and meaningful.  The tendency to elaborate variations of developed state models may sometimes get in the way of the actual delivery of remedy to those who suffer harm. Yet at the same time, the NAP provides an excellent opportunity for states to face up to the deficiencies of their own domestic legal orders (within national terms) and to seek to develop the productive forces of government even as they seek to use government to develop the productive economic forces of the state and its people.  This can be a hard task, requiring balancing between global norms, the elegance of theory and the hard realities of local cultures and ability to deliver remedies in an effective way.

3.  The protection of whistle blowers is a global problem.  The models provided by Western and advanced states is hardly one to be emulated, as these tend to vaunt gesture over robust protection and they invariably serve up multiple traps for the unwary (e.g., here). Robust measures protecting whistle blowers is an area that requires global action, and one for which developing and production chain downstream states are well positioned to take the lead.  Certainly developed and Western states have appeared to cede that role long ago (except for the elegance of their gestures in that direction).

4.  Similar concerns ought to play an important role in NAP development for human rights workers.  Neither states nor enterprises have an excellent track record in global production downstream sites for the protection of human rights defenders. And certainly at the heart of the NAP process should be an incentive for states to get their own houses in order--especially the operationalization of their domestic legal orders. Protection of human rights defenders (not necessarily any obligation to accept their positions) might be a useful test of state resolve as measured by its NAP commitment. 

5. There is always room for improvement of judicial protection.  There is greater room for expanding the role of non judicial remedies in ways that are consonant with core national constitutional (and regional-international human rights standards).  It is important for NAPs to be used to consider and clarify the connection between the normative foundation for the state (and its political culture) and its duty to protect human rights in the economic sphere. 

6. Lastly, and perhaps among the most important, global production downstream states have a greater obligation to extend the full measure of human rights related protections against the state, especially when it inserts itself in private markets and projects its power as an economic actor. State owned enterprises (SOEs), development banks, and other mechanisms for the insertion of states into economic activity ought to trigger both a state duty (with respect to ownership interest and funding) and a corporate responsibility (with respect to the operations of the enterprise itself) (e.g., here). But this obligation ought to extend to the foreign SOEs that are permitted to exploit national economic markets and resources. Latin American states ought to be particularly sensitive to this as foreign SOEs and other foreign economic instrumentalities have a long history of involvement in economic activity.

Whether one agrees with the specifics of the reasons for Civil Society Focal Group on Business and Human Rights decision to decline to endorse Mexico's draft NAP, it is clear that their concerns reflect very real and unanswered issues that states like Mexico would do well to consider.


Mexico City, Mexico.
July 27, 2017.

United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises.

Dear Working Group members,

The Civil Society Focal Group on Business and Human Rights in Mexico hereby expresses its gratitude for the spaces for dialogue provided during the last two years for the development of the National Program on Business and Human Rights (NAP). After a thorough analysis of the process and the content of the last draft of the Plan, and considering the Focal Group has done numerous efforts for the NAP to comply with the needs and commitments of our country, we have decided that it is not possible for us to endorse the proposed instrument.

During this time we have made significant contributions to reach the best results possible. For example, we have mobilized our own monetary resources to develop an independent National Baseline Assessment on the topic, with the support of international allies; we have documented numerous cases to present as an input to strengthen the visit of your Working Group to Mexico last year; we have participated in all the National Working Group meetings, different seminars and regional meetings, providing exhaustive written and oral comments for the improvement both of the text of the NAP and of the process itself.

For the last couple of years we have actively and responsibly provided the Ministry of the Interior (responsible for the development of the Program) with quality information that considers international experiences to effectively implement the three pillars of the United Nations Guiding Principles on Business and Human Rights (UNGPs) through the Mexican NAP. We acknowledge that our work made some improvements to the initial draft shared last March; nevertheless, the last version of the NAP does not comply with the international standards on the topic by not addressing appropriately some key issues mentioned below.

We also acknowledge that the socialization process took into account some of our comments, for example the inclusion of different social actors, the expansion of the deadline to receive comments, as well as the launch of an online process. At the same time, we consider that various aspects pointed out in several occasions were not solved or addressed, for example the request of having a clear roadmap and that the discussions around the content of the NAP were active within the National Working Group to have a transparent multi-actor process.

Regarding the content, since the beginning of the process we defined priorities that haven’t been met in the document and are stated below:
 Improvement of access to justice and remediation for the affected communities by business activities. Pilar 3 of the UNGPs clearly establishes as a fundamental element the need to include these mechanisms in any NAP. Specifically on the matter of access to justice, the Mexican NAP does not integrate the recommendation, and conclusion of the Seminar, to implement the reform to the Ley de Amparo of 2013 which states that businesses can be named as responsible authorities when they commit human rights violations.
 Highlight and recognize in the NAP the obligatory for enterprises to conduct human rights due diligence processes in their operations and value chains (including beneficial ownership) to identify, avoid, mitigate and, if required, remediate damage. The current text does not incorporate the obligation to publish social and environmental impact assessments (that are not public by law). There are no actions established to ensure transparency of the private sector, and no explicit statement about the obligation for businesses to respect human rights.
 Inclusion of solid mechanisms for the protection of human rights defenders, journalists and whistleblowers. Companies are not urged to publicly condemn the attacks and intimidation to against these actors, as recommended by your Working Group in the report of the country visit. It is fundamental that the right to security is ensured, particularly in the context of the work of the aforementioned actors and of the human rights crisis in Mexico.
 Acknowledgment of the free, prior and informed consent processes as a right, and the recognition of the results of consultations as binding. The draft text limits its application to indigenous communities, excluding the rural and comparable ones that are facing similar issues. Besides, this right is not linked to the responsibility of human rights due diligence processes by companies, as recommended in the UNGPs.
 Explicit recognition of the responsibility to guarantee human rights by the State when it acts as an economic actor. The draft text does not include strong guidelines for businesses with State participation or under its control, or in the public procurement processes, so as to set the example for the private sector, as stated by the UNGPs. 

Due to the above, the Focal Group is abstaining to endorse the Mexican National Program on Business and Human Rights as it has been developed, according to the draft that was shared with us in recent days. Given that the development and publication of the Program will be completed, we will continue with our commitment to monitor the implementation and evaluation of the business and human rights agenda, including the NAP, with the objective of improving public policies on the matter, and business accountability in the country.

Yours truly,
Business and Human Rights Resource Center (BHRRC);
Centro Mexicano de Derecho Ambiental (CEMDA);
Comité de Defensa Integral de Derechos Humanos Gobixha (Código DH);
Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC);
Project on Organizing Development, Education, and Research (PODER);
Oxfam México;
Servicios y Asesoría para la Paz (Serapaz);
Accompanied by Preace Brigades International (PBI) and the Asociación Interamericana para Defensa del
Ambiente (AIDA)

Special Rapporteur on the Rights to Safe Drinking Water and Sanitation
Special Rapporteur on the situation of Human Rights Defenders
Special Rapporteur on the Rights of Indigenous Peoples
Special Rapporteur on the implications for human rights of the environmentally sound management
and disposal of hazardous substances and wastes.
Danish Institute on Human RightsInternational Corporate Accountability Roundtable

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