Global civil society letter to governments on the development and implementation of national action

Global Civil Society Letter to Governments on the Development and Implementation of National Action Plans (NAPs) on Business and Human Rights 1 May 2014 Your Excellencies, Ministers, and Ambassadors: The International Corporate Accountability Roundtable (ICAR) is a coalition of human rights, environmental, labor, and development organizations that creates, promotes, and defends legal frameworks to ensure corporations respect human rights in their global operations.

The European Coalition for Corporate Justice (ECCJ) brings together European groups working on corporate accountability, including NGOs, trade unions, consumer advocacy groups, and academic institutions. ECCJ has members in Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Poland, Spain, Sweden, Switzerland, and the United Kingdom.

The Corporate Responsibility Coalition (CORE) is an authoritative and influential network of NGOs, academics, trade unions, and legal experts which brings together the widest range of experience and expertise on U.K. corporate accountability in relation to international development, the environment, and human rights.

The Canadian Network on Corporate Accountability (CNCA) brings together environmental and human rights NGOs, development organizations, religious organizations, labor unions, and solidarity groups from across Canada that are advocating for mandatory corporate accountability standards for Canadian extractive companies operating abroad, especially in developing countries.

We, representing civil society organizations from across the world, strongly urge governments to develop, implement, and continuously review National Action Plans (NAPs) on Business and Human Rights (BHR) that clearly articulate the concrete steps that the government commits to take in furtherance of its duty to protect against business-related human rights abuses.

A NAP is a State-level policy document that outlines a government’s priorities, commitments, and proposed initiatives to address a specific issue. A BHR NAP is a means for a State to practically engage its duty to protect human rights as defined in the U.N. Guiding Principles on Business and Human Rights

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(UNGPs).1 By clearly and comprehensively articulating the “full range of permissible preventative and remedial measures, including policies, legislation, regulations[,] and adjudication,”2 a BHR NAP builds public accountability for the ways in which the State will effectuate its duty to protect against businessrelated human rights abuses.

In order to fulfill their duty to protect human rights and to ensure access to effective remedy, governments must develop comprehensive, transparent, and action-oriented NAPs with the following minimum criteria. For those governments that have already developed BHR NAPs, they must further develop, implement, and continuously review their existing BHR NAPs in line with the following minimum criteria.

All BHR NAPs should: 1. Be evidence-based and developed from a mapping and gap analysis. In order for a BHR NAP to accurately and strategically address the business and human rights situation within an individual country, it must be evidence-based. A State should therefore first launch an inclusive and transparent process to map its current legal and regulatory framework, as well as the social and political realities within the country, using such tools as National Baseline Assessments (NBAs), surveys, consultation workshops, interviews, or other tools appropriate to the national context.

The analysis should then clearly identify the gaps in the legal and regulatory framework that the subsequent NAP should respond to and directly address.

2. Be developed through meaningful consultation with all stakeholders. States must consult with all relevant stakeholder groups – including civil society organizations, rights-holders, victims, and impacted communities3 – to ensure transparency, inclusiveness, and accountability throughout the State’s process of developing a BHR NAP. Through open and informed consultation efforts, the process of developing, implementing, and continuously reviewing a BHR NAP can provide a constructive opportunity for robust collaboration, engagement, and trust-building amongst all stakeholders. Moreover, recognizing that each State has different capacity challenges, it is important to note that there are strategic ways for States to generate resource and technical support in the development of BHR NAPs, such as through regional partnerships and the sharing of best practices between governments.

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On June 16, 2011, Member States of the U.N. Human Rights Council unanimously endorsed the UNGPs in Resolution 8/7, and the UNGPs have since been endorsed or employed by individual governments. See John Ruggie, Special Representative of the Sec'y-Gen. on the Issue of Human Rights & Transnational Corps. & Other Bus. Enters., Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, ¶¶ 5-6, U.N. Doc. A/HRC/17/31 (2011) [hereinafter UNGPs], available at http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf.

2 UNGPs, supra note 1, at 6.

3 In consulting with impacted communities in particular, governments should support and build off of existing tools and guidance, including those related to community-driven human rights impact assessments. Such assessments are particularly effective tools for States in determining how those who are most affected can intervene to enhance positive effects, in avoiding or mitigating negative impacts, and in contributing to the fulfillment of human rights. An example of a community-driven human rights impact assessment tool is Getting It Right, which was designed by the Canadian organization Rights and Democracy and which has been piloted by Oxfam America and other NGOs, community organizations, and communities. The Getting It Right tool is available online at http://hria.equalit.ie/en/index.html.

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3. Ensure policy coherence. A BHR NAP must help coordinate government-wide and crossdepartmental efforts to implement the UNGPs by outlining and assigning tasks to the diverse array of government bodies addressing business and human rights-related issues. This means that States should involve all relevant government bodies in the development, implementation, and review of a BHR NAP. 4. Include commitments by the State to establish and enforce regulations to protect against human rights abuses. States must enact regulations to protect against human rights abuses, including civil and criminal liabilities, public disclosure regimes, procurement schemes, and other measures to ensure that the corporate responsibility to respect human rights is enshrined in law. These regulations should address actual and potential human rights impacts within the State's borders and the extraterritorial impacts of companies domiciled within the State. These binding requirements must clearly extend to all of the activities and relationships of a company, including those of its subsidiaries, contractors, business partners, and supply chains. At the same time, governments should identify and seek to modify any legislation or regulation preventing businesses from respecting human rights. In particular, laws or regulations that prevent corporate transparency, circumvent procedural protections under law, or provide immunity that extends to contributions to human rights abuse should be amended in accordance with the UNGPs. States must also address the dynamic and multi-faceted role that governments play in business transactions by ensuring that human rights due diligence requirements are built into government procurement contracts, the activities of State-owned enterprises, and government provision of financial or other support to business entities.

5. Guarantee access to effective judicial remedy. In line with the State duty to protect human rights, States must eliminate barriers to effective judicial remedy when business-related human rights abuses have already occurred. These remedies must be available to nationals of the State and to foreign victims of human rights abuses caused by the extraterritorial operations of companies domiciled in the State and their subsidiaries. Victims continue to face significant legal, administrative, and practical barriers in accessing remedy for business-related human rights harms, including jurisdictional application limits, forum non conveniens doctrine, choice of law analysis, and statutes of limitation. A BHR NAP must articulate how the State will take appropriate steps to ensure that barriers to judicial remedy are eliminated and access to effective remedy, both judicial and non-judicial, as appropriate, is provided.4 6. Identify and engage in monitoring and reporting mechanisms for periodic assessment. States must be held accountable on a periodic, ongoing basis for the commitments made within their respective BHR NAPs. As such, BHR NAPs must include concrete targets and timelines to track State progress in engaging with the duty to protect human rights. Simultaneously, a BHR NAP must also identify existing monitoring and reporting mechanisms that can be used to track the implementation of the BHR NAP – such as Universal Periodic Review, treaty-body reporting, expert review, and peer review processes – or, alternatively, a BHR NAP must set-up an internal monitoring body to track progress.

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For more on the most significant barriers to effective judicial remedy in the United States, Canada, and Europe, and for detailed recommendations on the actions States should take to address these barriers, see generally SKINNER ET AL., THE THIRD PILLAR: ACCESS TO JUDICIAL REMEDIES FOR HUMAN RIGHTS VIOLATIONS BY TRANSNATIONAL BUSINESS (2013), available at http://accountabilityroundtable.org/analysis/the-third-pillar-access-to-judicial-remedies-forhuman-rights-violations-by-transnational-business/.

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Since the unanimous endorsement of the UNGPs by Member States of the U.N. Human Rights Council in 2011, very few States have taken concrete actions to communicate and implement commitments undertaken through this endorsement. It is critical for States to ensure that the duty to protect human rights is translated into preventative and remedial measures. We urge all governments to move towards this end by promptly and actively developing, implementing, and continuously reviewing BHR NAPs in line with the minimum criteria above.

As representatives of global civil society, we will continue to advocate for public accountability over the actions of governments in ensuring that the duty to protect human rights is a reality. Several of our organizations are currently developing comprehensive guidance and recommendations for States to use in either their initial or continuing BHR NAPs processes.5 We hope that these tools will inspire concrete action on the part of governments and stand ready to help States use these tools as they work towards effectuating their duty to protect human rights.

Sincerely,

Amol Mehra, Esq. Director, International Corporate Accountability Roundtable (ICAR)

Jérôme Chaplier Coordinator, European Coalition for Corporate Justice (ECCJ)

Marilyn Croser Director, Corporate Responsibility Coalition (CORE)

Ian Thomson Coordinator, Canadian Network on Corporate Accountability (CNCA) 5

For example, the International Corporate Accountability Roundtable (ICAR), in partnership with the Danish Institute for Human Right (DIHR), launched the National Action Plans (NAPs) Project in August 2013 with the goal of producing a robust toolkit in order to support the development and evaluation of NAPs on business and human rights in holding governments to account for progress in fulfilling the State duty to protect. For an overview of the NAPs Project, the Project’s concept note, summaries of each of the Project’s regional dialogues to date, and copies of final and draft versions of existing NAPs, see the NAPs Project webpage, hosted by the Business & Human Rights Resource Centre (BHRRC), at http://www.business-humanrights.org/Documents/icar-dihr-naps-project.

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Copy furnished: Member States of the U.N. Human Rights Council Relevant Government Ministries, Departments, and Agencies U.N. Working Group on the issue of human rights and transactional corporations and other business enterprises Office of the UN High Commissioner for Human Rights (OHCHR) International Corporate Accountability Roundtable (ICAR) European Coalition for Corporate Justice (ECCJ) Corporate Responsibility Coalition (CORE) Canadian Network on Corporate Accountability (CNCA)

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