State Department: The Contribution of National Contact Points in furthering the Responsibility of Business to Respect Human Rights

Introduction

Good afternoon. It is a pleasure to attend this important meeting in London, a city where I studied international law and worked several years ago.

Before getting into the details about where we see contributions of National Contact Points toward furthering implementation among businesses of the responsibility to respect human rights, I would first like to tell you something about the Office of the United States National Contact Point.

After that, I will discuss some State Department perspectives on the responsibility “to respect.”

Lastly, I will offer some of our thoughts about opportunities available for National Contact Points to further the observance of this responsibility.

The Office of the U.S. National Contact Point and Extractive Industries

In line with the OECD’s updating of the Guidelines for Multinational Enterprises in 2011, the U.S. Government undertook a simultaneous review to enhance the effectiveness of the U.S. National Contact Point. Key results of this effort were:

• Creation of a new set of Procedures for the U.S. NCP’s handling of specific instances;
• Staffing of a two-person U.S. NCP Team, of which I am a member, that reports directly to the State Department’s Assistant Secretary for Economic and Business Affairs;

AND

• Establishment of a stakeholder advisory board comprised of representatives from business, labor, civil society and academia, to provide recommendations regarding the activities of the U.S. NCP. The Board held its first meeting a few days ago. You can find further information about all of this on the U.S. NCP’s website.

Keeping in mind that our new NCP Team has been operating for only eight months, we have been receiving positive, constructive feedback about our outreach and other activities.

I’d like to note that matters concerning multinational enterprises in the extractive industry sector are playing a role in our portfolio. So far, our new NCP Team has been involved with nine specific instance submissions, three of which concern multinational enterprises engaged in extractives industry-related activities. In one of these cases,[1] the U.S. NCP has already concluded its involvement and released a public statement.

The State Department’s View on the Responsibility of Business to Respect Human Rights

Now, let me provide an overview of State Department perspectives on the responsibility to respect in relation to the policies and operations of businesses and their stakeholders.

As we know, human rights law generally imposes obligations on States.

However, companies also have an important role to play in the context of the exercise and enjoyment of human rights.

Secretary Clinton’s Economic Statecraft agenda recognizes that around the world “economic forces are transforming foreign policy realities” in ways beyond what might have been imagined only a few decades ago.

She also recently noted: “This administration understands that in the 21^st century, governments are not the only major players. Corporations, NGOs, private citizens, and civil society groups shape events and developments across the globe. The United States Government wants to be your ally and your partner – so we are all working together to make human rights a reality in the places where you do business.”[2]

This need for governments and businesses to cooperate to address human rights and other issues is grounded in the facts of this increasingly integrated world, where more than one-third of the 100 largest economic actors today are private companies, not countries.

Extractive companies operate in some of the most complex environmentally, socially and politically sensitive locations, where governments may lack the capacity, disposition, or an adequate legal framework to enforce the law.

A key objective for National Contact Points is to offer opportunities to assist businesses to put into practice the responsibility to respect human rights, and to raise awareness about implementation of the Guidelines with business, non-governmental organizations and other stakeholders.

As we are well aware, this responsibility exists independently of States’ abilities or willingness to fulfill their own human rights obligations to their people.

John Ruggie’s development of the UN Guiding Principles on business and human rights constructed a roadmap for the way forward. Professor Ruggie’s work was critical in building consensus around the responsibility of business to respect human rights.

My Government welcomes that the human rights chapter of the 2011 OECD Guidelines draws upon and is in line with the UN Guiding Principles.

The articulation of the responsibility to respect in the OECD Guidelines further affirms international recognition of the Guiding Principles, along with the Guidelines, as a widely accepted framework for how companies, governments and other stakeholders can cooperate to develop strategies and achieve solutions for furthering respect for human rights.

It should also be noted that the American Bar Association formally endorsed both the Protect, Respect and Remedy Framework articulated in the UN Guiding Principles on Business and Human Rights, and the OECD Guidelines for Multinational Enterprises.

Now I’d like to underscore a basic point: Complying with local law may not, on its own, suffice to ensure that companies avoid the full spectrum of human rights-related risks.

As the OECD Guidelines recognize:

“Respect for human rights is the global standard of expected conduct for enterprises, independently of States’ abilities and/ or willingness to fulfill their human rights obligations and does not diminish those obligations.”[3]

Of course, realizing this objective can present formidable challenges for companies and their stakeholders, depending on the circumstances in which they are operating.

Due Diligence

As articulated in the UN Guiding Principles, and reiterated in the OECD Guidelines, a key means by which enterprises can conduct their operations in a manner directed at respect for human rights is to build human rights-based due diligence into their standard operations.

Assessing human rights impacts is not a one-off exercise. It is an ongoing process integrated throughout the business’s operational structure.

The UN Guiding Principles and the OECD Guidelines establish broad parameters, such as what a company should consider when undertaking human rights due diligence.

These texts can assist companies to see:

• The importance of having the appropriate due diligence processes in place for their own on the ground circumstances, AND
• What those processes should look like.

Many companies realize that the responsibility to respect human rights is important. However, they often don’t know how to effectively incorporate and implement it in their actual operations. This is an ongoing challenge.

I’d like to briefly share some relevant points in the context of company efforts to implement this responsibility to respect:

The Due Diligence process should begin by taking proactive steps to learn how existing and planned activities impact human rights and identifying whose rights could reasonably be impacted. A key means for doing this is stakeholder engagement.

While there is substantial talk about stakeholder engagement, the concept is often perceived in terms of a transaction step, a box to check to meet a permit or other requirement or just a nice community relations exercise.

There is a need for greater appreciation for such engagement as an intrinsic feature of a company’s way of doing business, including in relation to all of its operations.

A company should also publicly announce a broad policy statement on human rights that permeates all levels of its operations that creates a strong internal incentive to conduct effective due diligence.

A company does not have to start from scratch to do this. A company’s already existing labor rights, workplace safety, and grievance policies could be incorporated into a general human rights policy. The key is integrating human rights-based due diligence into the daily activities of the company’s core operations as well as its other relationships.

We believe that NCPs could play a much more active role in helping companies implement more effectively human rights due diligence, including how to undertake robust stakeholder engagement.

The US National Contact Point’s Contribution

1) Now, what tools do National Contact Points have to contribute to the implementation by business of the responsibility to respect human rights? The Guidelines, as well as the Guidelines’ supporting procedural guidance and commentary in implementation procedures provide NCPs with several means to undertake the NCP’s mandate to further the effectiveness of the Guidelines. These include: Promotion and Awareness Raising and responding to inquiries from business and stakeholders about the Guidelines

2) Contributing to Resolution of Disputes in relation to an enterprise’s observance of the Guidelines, through the Specific Instance process;

AND

3) The Proactive Agenda– which is designed to provide a forum to bring business, civil society and other stakeholders together to consider new developments and emerging practices and to collaborate on identifying and responding to potential emerging risks.

I’ll discuss each of these briefly.

It almost goes without saying that in executing their promotion and awareness-raising function NCPs have an ideal opportunity to provide businesses and stakeholders with information on the meaning of the responsibility to respect.

NCPs can use their promotion and awareness raising function to provide companies and stakeholders with information about available resources that can help companies figure out how to actually implement the responsibility to respect in light of their own industry sector, country and other operating circumstances.

Existing resources include various multi-stakeholder and other tools, such as:

• the Voluntary Principles on Security and Human Rights; OR
• Luxor Protocol[4] designed to guide companies in countering trafficking in persons in relation to their direct activities and supply chains. There are also a number of other materials out there for you to consider

Additionally, government resources can help companies in addressing these issues. One of the U.S. NCP’s functions is to be a key resource to help U.S.-based multinationals obtain information about human rights conditions, such as that contained in the State Department’s annual country Human Rights Reports or through the services of our embassies abroad.

I’ll just briefly say that the Specific Instance process also has the potential to play a constructive role in fostering greater awareness and understanding among businesses and stakeholders in relation to concrete issue-based situations, about effective observance of the Guidelines.

Finally, the Proactive Agenda is a relatively new tool, which NCPs and stakeholders could find to be a creative and constructive avenue for substantially enhancing business’ implementation of the responsibility to respect human rights.

The Proactive Agenda could:

• provide companies and stakeholders with a unique, creative opportunity to meet, discuss and cooperate on identifying, analyzing and offering for consideration ideas for addressing basic implementation challenges;

AND

• offer a safe space for all parties to meet and deliberate over options– such as lessons learned, and best practices — including from the concrete experiences of other companies and stakeholders– regarding what has worked and what has not been successful.

The Proactive Agenda, along with the NCP’s promotion and awareness-raising function, can also be a core repository of knowledge on new-thinking, and information sharing on cutting-edge research in relation to the experiences of existing mechanisms, such as the Compliance Advisor Ombudsman at the International Finance Corporation, that are also focused on fostering respect for human rights in their problem-solving and related work.

Companies here today- including my co-panelist from Rio Tinto – participate in the “Voluntary Principles on Security and Human Rights.” For example, Rio Tinto’s contributions to strengthening the Voluntary Principles and a related pilot project could be topics for stakeholder discussions in the context of the Proactive Agenda.

Conclusion

I hope that I’ve been able to provide you with some observations and thoughts for further consideration regarding ways in which National Contact Points can make valuable contributions to furthering the corporate responsibility to respect human rights. Thank you for your attention. I would be pleased to respond to any questions or comments you might have.