It is increasingly accepted that businesses play a critical role when it comes to the protection of human rights. In an earlier blog post, we looked at the role that National Action Plans on Business and Human Rights (NAPs) can play in enhancing respect for human rights in the private sector, and the key commitments and safeguards that successful NAPs should include. The content of a NAP is, of course, fundamental. But that content will also be influenced, in part, by the way the NAP is developed – its process.
Multistakeholder approaches are known to be able to help address challenging policy issues and lead to better solutions. This is equally true in the context of NAPs, where consultation with a wide range of stakeholders can, for example, enable a stronger focus on vulnerable or excluded groups.
So what, specifically, are the criteria for a good NAP development process – one which helps ensure respect for human rights? At GPD, we have long promoted the open, inclusive, and transparent (OIT) approach, which has been widely used in a variety of policymaking processes, such as national cybersecurity policies in Mexico and Chile. Such an approach requires participation in the process to be accessible to relevant stakeholders (open); for different stakeholders’ views and opinions to be heard, considered, and accounted for (inclusive); and for procedures and mechanisms to be clearly defined (transparent). However, while most NAPs at least pay lip service to the importance of an OIT approach, they are not always fully compliant in practice.
A typical NAP development process has at least four stages (though the process is iterative rather than linear, and involves constant review and returning to earlier stages to account for new developments). The OIT approach should apply at each of the stages:
- Scoping. Here stakeholders conduct research to understand the country’s business and human rights (BHR) landscape. At this stage, it’s good practice to create a baseline of the main BHR issues (such as that undertaken by the Diego Portales University in Chile) and to consult relevant stakeholders through an open call for input (as was done by the Department of Foreign Affairs and Trade in Ireland);
- Formation. This is where the vision, scope and objectives of the NAP are set. At this stage, governments should involve as many relevant government entities as possible, consult and take into account the views and needs of non-governmental stakeholders, and outline a clear timeline for the NAP process. In the case of the Netherlands NAP, for example, an inter-ministerial working group was created, which led extensive pre-drafting interviews with stakeholders.
- Drafting. This is where input and comments from stakeholders are incorporated. Here, it’s crucial that the leading government entity ensures the active participation of all relevant stakeholders, and mediates between different interests. The Finnish NAP process stands out here, mainly because its drafting process was discussed in the Committee for Corporate Social Responsibility – a permanent multistakeholder body, which brings together individuals from government ministries, business, trade unions and NGOs.
- Accountability and follow-up. Once the NAP is finalised, the process should allow for input to its implementation from a range of stakeholders. A joint report by the International Corporate Accountability Roundtable, European Coalition for Corporate Justice and DeJusticia highlights some of the ways NAP processes have been meeting this criterion – for example, by creating a Commission of Experts that is regularly consulted by the government to ensure the implementation of the NAP (Colombia), and identifying (at least to some extent) which government agency is responsible for the implementation of individual action points and the process of consultation (UK revised NAP, 2016).
Even NAP processes which seem to meet these criteria on paper can, with closer scrutiny, reveal loopholes and important qualifications. The development process behind Colombia’s NAP (published in 2015) is a revealing example. Despite a 21-strong working group of government departments, a multistakeholder steering group, and many other gestures towards openness, inclusiveness, and transparency, in practice the development of the NAP remained closed, exclusive, and opaque. The government provided no terms of reference, baseline, or timeline for the development of the NAP, and only one civil society organisation was involved in its drafting. Communities likely to be affected by the NAP were only consulted after the draft was created, and then in only three regions of the country (Cartagena, Apartadó and Villavicencio), a decision which has attracted strong criticism from local civil society organisations.
The provisions for review, evaluation and follow-up in Colombia’s NAP process similarly look better on paper than they have worked out on the ground. While the leading government entity stated at the outset that the NAP is a “living plan, in constant revision”, and committed to consulting with the Commission of Experts, including indigenous organisations, the Afro-descendent community, universities, civil society organisations, business representatives, and other stakeholders (such as international stakeholders and trade unions), the nature of their input is unclear. In particular, the NAP has not specified who manages the commission, what the timeline is, and what tools it will use for its implementation and monitoring.
What can we take away from the examples we’ve looked at above? NAP processes are, in general, becoming more open, inclusive, and transparent. There’s a growing amount of good practice, and evidence of increasing acceptance of an OIT approach among governments. Adherence to the framework, however, remains uneven and partial in most cases; and that’s where the challenge lies. In a previous post we argued that, as civil society organisations, we have an important role to play in shaping the content of NAPs. But it’s also clear we need to be intervening actively in the process by which they are developed. The evidence and logic is on our side: NAPs which are developed according in an open, inclusive, and transparent manner have stronger buy-in and better outcomes. It’s vital that we continue to make this case.