Colombia: Why implementing the UN Guiding Principles is an uphill battle

Part 1 of 2

While I was in Colombia last week, I met with people in government, business and civil society to discuss the state of play of human rights and business in their country. Many of the stories I heard described a scale and scope of human rights abuses more severe and complex than in most places I’ve visited. Unlike elsewhere though, I also found out that Colombia is well on its way to becoming the first country in the hemisphere to take broad policy measures to prevent and remediate corporate human rights abuses.

Let’s backtrack: In March 2015, the Colombian Government announced that it would develop a Nation Action Plan (NAP) on Business and Human Rights to translate the UN Guiding Principles on Business and Human Rights into local practice. The ambitious deadline for finalizing this public policy document is December 10, 2015 – International Human Rights Day – a date, which if met, would make Colombia the first country in the Americas to publish one, beating Chile, Brazil, Mexico and the United States.

While this is a good sign for things to come in Colombia, there is also trouble on the horizon. A lack of political will and capacity, as well as an environment of austerity and suspicion toward human rights, risk making the implementation of the NAP a steep uphill battle. 

What’s the Plan?

Before jumping into discussing these challenges, here goes a brief overview of the NAPs’ content so far. 

According to the Office of the Presidential Advisor on Human Rights, Colombia’s NAP is going to be at least partly informed by an earlier government initiative known as the Guidelines for a Public Policy on Business and Human Rights (a.k.a Lineamientos Para Una Política Pública de Derechos Humanos y Empresas). 

They Guidelines are meant to help the government develop a national policy consistent with the UN Guiding Principles. They were developed through multi-stakeholder consultations around the country, and cover all three pillars of the Guiding Principles – Protect, Respect and Remedy. 

The Presidential Advisor’s Office says that the NAP will need to: expand on the concept of corporate social responsibility; ensure respect for human rights in all spheres; provide input for Post-conflict (Post-Havana agreement); implement the plan whether or not a peace agreement is reached in Havana; and create a mechanism for measuring, monitoring and evaluating the NAP.

While the precise content of the NAP is still being developed, priority areas have been identified, including normative coherence; strengthening relevant entities, due diligence, human rights as a contributing factor to competitiveness; effective participation; and creating a culture of human rights and business.

A first draft should be ready for public consultation in October. Here goes a bad photo of the timeline for finalizing the NAP:

IMG_6100

Uphill Battle

While we don’t know what the final policy document will look like or what actions it will envisage, the true test of the NAP will come at the time of implementation. Here are some of the main challenges I came across for this during my time in Colombia:

Political Will

In Colombia one could be fooled into thinking that because the Presidential Advisor on Human Rights’ Office is the institution developing the NAP, there is strong political will to tackle the human rights impacts of business. This assumption, however, is wrong.  

In practice, implementing the NAP depends on whether all relevant government institutions can manage to work together on upholding the governments human rights obligations. Whether or not they do this is dependent on the political will of other institutions to implement the cross-cutting measures laid out by the NAP.

Take for example an initiative on mining. This would likely require action on behalf of the Ministry of Mines, which is under ‘extreme pressure’ by other parts of government to ensure the rapid expansion of foreign investment in Colombia in the name of ‘development.’ Competing demands like these placed on institutions responsible for implementing an eventual NAP are going to be a major barrier for its implementation, since human rights standards are often seen as an extra barrier to ‘growth and prosperity.’

Capacity

A second challenge will be how to build the human rights and business capacity of all the institutions responsible for implementing the NAP.

Take the abovementioned measure on mining. The Ministry of Mines has as much understanding about human rights as I do about civil engineering. Asking them to work with human rights is like asking me to build a bridge. Not only do I have no idea how to, I also have no interest in learning how. If I did, I would have studied civil engineering.

A related challenge is geographic. Colombia is huge and the reach of the central government goes only so far. This impacts the ability of the NAP to trickle down and across all 32 Departments. This is especially true in areas where armed groups are in control. Where there is local government, insufficient human and financial resources, as well as the absence of oversight and accountability mechanisms, contribute to endemic levels of corruption. Some go as far as saying that at this level of government “there is no corruption, there is only organized crime in government.” While this may be an exaggeration, it does say a lot about how corruption is perceived at this level. There, the highest bidder decides what activities take place in the area, and a NAP has little chance of competing with business interests.

Resources

Austerity. The word sends chills down the backs of NAP drafters in Colombia and across the region. For good reason. The government’s austerity measures are not facilitating factors for implementing a broad policy of this kind. Each action of the NAP will take time and money to implement. Not only are current austerity measures likely to undermine these efforts, they could also inhibit other effort to address the challenges herein described.

Perception of Human Rights

As if these challenges weren’t enough to deal with, Colombia’s relationship to human rights is ‘complicated.’

Although Colombia has an usually large number of ‘human rights and business’ experts who can recite the UN Guiding Principles by memory, this is a relatively small and elite group that does not reflect the way most Colombians relate to human rights. In fact, a large swath of the population thinks human rights matter only in relation to the armed conflict, not necessarily to them and much less to business. Some even link human rights to the demands of left-wing guerrilla sympathizers (i.e. not a good thing), which could contribute to an unhelpful level of suspicion toward the NAP.

At the company level, while some companies are familiar with their human rights responsibilities, the majority are not. Others think that their philanthropic activities show that they ‘do human rights.’ But bring up minimum standards and human rights due diligence and you’ll quickly notice the mood in the room change and the eyes of company reps glaze over. Not exactly fertile territory for the effective uptake of the NAP by business. 

How to turn words into action

While these are significant barriers for the successful implementation of the NAP, there are many things the government can do to preempt them. But for the sake of my time and your patience, I’ll save my recommendations for Part 2 of this post. For now I’ll just say that one this is clear: it’s time for policy makers to start identifying practical solutions for the barriers described, and these should in turn be reflected in the NAP itself as the means for implementation. 


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