Tuesday, March 16, 2021

Call for Comments on Pakistan's Newly Released "National Action Plan on Business and Human Rights" Due 9 April 2021



The government of Pakistan has just released its anticipated draft National Action Plan on Business and Human Rights.   Better put, the Research Society of International Law (RSIL) has put forward on belf of the government of Pakistan a draft business and human rights NAP (Developing a National Action Plan for Business & Human Rights in Pakistan).  RSIL describes its work in the following terms:

RSIL has been engaged by the Federal Ministry of Human Rights and the United Nations Development Fund to undertake a national assessment of existing human rights standards within the business context. The project was based on the inordinate impact of business activity on the enjoyment of human rights which has become an area of global focus over the past few decades. (Developing a National Action Plan for Business & Human Rights in Pakistan).

 RSIL and its partners first developed a National Baseline Assessment framed by the UNGP's 3 Pillar structure. " This entailed an exhaustive review of human rights standards established through international instruments, fundamental protections accorded within the Constitution of Pakistan, and human rights and labour standards established within Pakistan’s domestic legal framework. (Ibid). That National baseline Assessment, in turn, was based on the work of another public-private partnership--the

National Action Plans for Business and Human Rights: A Toolkit for the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks (June 2014) developed by the Danish Institute for Human Rightsa (Denmark's national human rights institute) and the International Corporate Accountability Roundtable (a coalition of non-governmental organizations focused on issues of business and human rights). RSIL also relied on the UN Working Group for Business and Human Rights, Guidance on National Action Plans on Business and Human Rights (2016).

Applying this toolkit to the national conditions of Pakistan on behalf of the Pakistani state organs charged with the task of producing this document, RSIL first mapped the relevant parts of Pakistan's domestic legal order, which included:

a review of over 163 laws, and 127 judicial decisions. Additionally, RSIL undertook a qualitative and quantitative review of policies introduced within companies domiciled in Pakistan.In order to make the NAP development process as transparent and consultative as possible, a survey of almost 150 companies was conducted to thoroughly analyse the extent to which human rights standards are implemented within business activity in Pakistan. Additionally, the team conducted interviews and consultation sessions, engaging over 200 relevant stakeholders across the country. Developing a National Action Plan for Business & Human Rights in Pakistan).

The resulting draft is now available for comments before it is finalized.  Comments will be accepted until 9 April 2021.  Comments may be delivered through this link.

The Ministerial Foreword, my own very brief comments and the table of contents follow.


1. I have not been a friend of the NAP process in general, and its application to the development of the state duty to protect human rights under the 1st Pillar of the UNGP in particular. Those interested in my qualms about the process and its unintended perverse effects may consider them at See Larry Catá Backer, "Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might Bind Them All," Fordham Int'l L.J. 38:457 (2015).  But I am suspicious of the NAP process for precisely the reasons that those who drive this project might favor it--NAPS provide an excellent vehicle for the post UNGP project of legalizing the societally based and markets driven 2nd Pillar corporate responsibility to respect human rights.  To some large extent, the Pakistan NAP reflects this emphasis--the state duty to respect human rights is viwed as an appendage, a foundation, for the real work of the NAP, the legalization of the corporate responsibility to respect human rights. 

2. The UN Working Group, and many of its European sponsors, have plced substantial emphasis on the legalization of the crown jewel of the 2nd Pillar's responsibility to respect human rights--the development of a detailed system fr the conduct of human rights due diligence (Pakistan Draft NAP ¶ 3.2.3, pp. 30 e seq.).  A European model is attempted here, suitably transformed to better align with local conditions.  That involves the creation of voluntary standards, initialing partnerships with private sector enterprises on HRDD and initially imposing mandatory measures only on the largest enterprises.  The system is quite clever.  It permits a certain measure of naturalization  at the local levels (assuming the competence, commitment, and capacity of local officials) while testing  the suitability f legal measures among the largest enterprises.  Once these largest enterprises are made to conform, their HRDD cultures can be crammed down to the smallest enterprise--or at least the smallest enterprises worth worrying about as determined by state officials (and their international guides).  

3. These is distressingly little focus on the state duty to protect human rights.  And what attention is paid focuses, as I have been noting for more than half a decade, not on the state as the bearer of primary and direct duty, but on the enterprises as  the vessel through which has been delegated a national obligation to comply to domesticated international obligation. Yet it is that domestication--that role of the state that stands as a buffer between the realization of international human rights law (and norms), and its transposition within the domestic order where there is space for substantial mischief. Yet the international community gets what it wants--a formal acknowledgement of the role of its norms and a gesture toward its realization within the domestic legal order.  That, at least for optimists, provides another step in the longer terms goal of using NAPS potentially as the basis for changing baseline sensibilities among states and ultimately of "crafting" customary international law that then can grow  (at least little) teeth.  

4. There are wide gaps in anything that points to policy coherence in the development of measures of legalize and rationalize the formal expectations of business operating in Pakistan.  This is particularly troublesome where, as here, Pakistan serves as a great nexus point for three quite distinct sensibilities of political-economic models of the nature of trade and the operation of  economic activity, and of the nature and application of human rights. These are liberal democratic and conventional internationalist approaches to trade and human rights, against those of socialist trade and human rights approaches of China's Belt and Road Initiative System, and those if Islamic trade and human rights approaches. Ignoring these differences (or assuming them away) one of the great bad habits of the (Western and developed state "influencer" communities and the elites influenced by them) will not make these differences disappear. 

5. The likely result will be conflict, corruption, or the likely non- or mis-use of whatever system eventually is operationalized at the local levels. Chief among the differences--Socialist focus on responsibilities to the collective and an emphasis on principles of stability and prosperity, as against Western notions of individual dignity and its expression through unhampered expressions of civil and political rights.  Both of these in turn must mediate their principles against the expectations, customs, traditions, and practices of Pakistani Islamic communities (and legal structures). None of this will be easy.  All of this is crucial.  Noen of this comes vene within the horizons of the NAP.

6. There is little in the NAP  about the need to raitonalize  even the modest ambitions of the Pakistani NAP to the realities of Pakistan's place within global production chains.  In many respects, policy--and HRDD, will not originate in Pakistan.  It is more likely to come from Brussels, Washington, or Beijing than it is to be manged by (though perhaps through) Karachi. National pride is understandable, but prudence cautions against te development of systems that look good on paper but the effectiveness of which will be splintered on the shoals of the realities of international production. That is a pity.  There is much in the Pakistan NAP that si worthy of development. 

7. And thus my great fear in projects like this--that it will serve best as  an addition to the website and metrics of the UN Working Group for Business and Human Rights, that it will produce  metrics to suggest the authority and power of specific approaches to crafting the formal structures of a very specific set of choices about the operationalization of the UNGPs, rather than serve the needs of the Pakistani people who are meant--in the last (and it is always the last) analysis--to be the object of all of this work.  And that, of course, is the problem with metrics.  Like bullets badly aimed they may not strike their target, or worse, may kill the  object that was meant to be protected. 

8. Lastly, it is a great pity that the issue of capacity building--probably the most important task of the Pakistani state apparatus in connection with operationalizing the UNGP appears most frequently invoked only in the Ministerial Foreword (bravo to Minister Mazari). It might have made for a more effective NAP given Pakistan's circumstances in the global economic order, for virtually the entire NAP to be focused on capacity building: building capacity for good governance, for access to information and remedial mechanisms, for funds to enterprises to be able to realistically approach issues of human rights due diligence, and for the building of a capacity among officials (the "tone at the top" issue starting with the state duty to protect human rights) to realistically naturalize, protect and account for the state duty to protect and the corporate responsibility to respect human rights in Pakistan in its current state of historical development. 

9. For all that, my congratulations to RSIL and its partners for a magnificent effort which under the circumstances, has resulted in a thorough, honest, and to some great extent somewhat feasible plan. To get to even this stage required a tremendous amount of skill and knowledge. This comes through clearly.   If nothing else it provides a realistic blue print for state officials and others with enough details  that it may prove useful if approached flexibly.



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