By Dante Pesce, Member of the United Nations Working Group on Business and Human Rights

1. International Learning Labon Public Procurement and Human RightsThe State-Business nexus: “Leading by Example” on Business & Human Rights By Dante Pesce, Member of the United Nations Working Group on Business and Human Rights Pretoria SA, November 13, 2017

2. UN Framework on Business and Human RightsHow can governance gaps and corporate human rights abuses be addressed? 2005 Special Representative appointed to ‘identify and clarify’ existing standards and practices with regard to business and human rights 2008 UN Protect, Respect and Remedy Framework 2011 UN Guiding Principles on Business and Human Rights articulating the corporate responsibility to respect human rights and human rights due diligence 2011 – 2017 UN Working Group on Business and Human Rights

4. UN Guiding Principles on Business and Human Rights 1: STATE 2: BUSINESS 3: VICTIM PILAR PROTECT RESPECT REMEDY NEED ACTORS Respect human rightsthroughoutthevaluechain Protectagainst human rights abuses byactors, includingbusiness Ensureaccessto remedies in the case of human rights abuses ACTION • Policies • Legislation • Regulation • Adjudication • Judicial remedies • Non-judicial remedies • Actingwithduediligence • Addressing adverse impacts UNGP: 1 - 10 UNGP: 25 - 31 UNGP: 11 - 24 Based on report to the Human Rights Council by John Ruggie, 2011

5. UN Working Group on Business and Human Rights Established by the Human Rights Council (2011) 5 members with regional representation Mandate to promote the Guiding Principles Dissemination Implementation Embedding Guiding Principles into global governance Working Methods Undertake country visits Prepare annual reports Guide Annual Forum and Regional Forum Support development of National Action Plans (NAPs) Support other interested parties in embedding business and human rights

6. Key expectation from business “Harmonization and coherence”

7. International frameworks on business and human rights

8. UNGP convergence with international standards • ILO MNE declaration • UN GuidingPrinciples • UN Global Compact • OCDEguidelinesfor MNE • ISO26000 for Social Responsiibility G4

9. “There can be many entry points for Business & Human Rights”

10. NATIONAL ACTION PLANS (NAPs) Definition of NAP An evolving policy strategy to protect against adverse human rights impacts by business enterprises The Process of NAPs Coordinated and coherent government leadership Multi-stakeholder and transparent consultation A process of continuous monitoring of implementation The Content of NAPs Compatible with the UNGPs Context specific based on baseline assessment Smart mix of mandatory and voluntary measures Working Group portal: http://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx

11. Guidance on the development of NAPs Encouraging all States to develop, enact and update a national action plan on B&HR as part of the State responsibility to disseminate and implement the Guiding Principles The final version of the Guidance was issued at the fifth annual forum, in November 2016. http://www.ohchr.org/Documents/Issues/Business/UNWG_NAPGuidance.pdf

12. MAIN CHALLENGES ON PUBLIC POLICY DEVELOPMENTON BUSINESS AND HUMAN RIGHTS Governance and political will Policy coherence and capacity to implement Stakeholder engagement, including critical voices Long term shared vision and actions State as economic actor………

13. ‘Leading by example’: The State, State-owned Enterprises, and Human Rights Report of the UN Working Group on Business and Human Rights to the UN Human Rights Council (32nd session, June 2016)

14. Taking additional steps: The starting point for action is Guiding Principle 4: «States should take additional steps to protect human rights abuses by business enterprises that are owned or controlled by the State, ... Including where appropiate, by requiring human rights due diligence.»

15. Taking additional steps: Guiding Principle 5: «States should exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights. »

16. Taking additional steps: Guiding Principle 6: «States should promote respect for human rights by business enterprises with which they conduct commercial transactions. Commentary States conduct a variety of commercial transactions with business enterprises, not least through their procurement activities. This provides States – individually and collectively – with unique opportunities to promote awareness of and respect for human rights by those enterprises, including through the terms of contracts, with due regard to States’ relevant obligations under national and international law.»

17. Taking additional steps: compeling reasons The reasons include: • Policiy coherence: • Governmental departments exercising State ownership need to be able to act in a manner compatible with the overall human rights obligations of the State. • States should implement international standards and guidelines in a coherente manner. • A legal obligation:The State has a legal obligation to protect against human rights abuses. • Legitimacy and credibility: The State should not ask less of companies that are closely associated with it than it asks of private business.

18. Taking additional steps: menu of options What should States require of SOEs? • Setting expectations: that SOEs respect human rights throughout their operations –even more, that they should be role models on human rights • Requirement of human rights due diligence (at home and abroad) • Requirements for systematic disclosure and reporting on ESG, including human rights • Requirements on remedy: that SOEs cooperate fully with judicial and non-judicial grievance mechanisms, and that they provide remediation for abuses • Engaging with boards, which are a key vehicle for States to manage their relationships with SOEs and the human rights requirements they set.

19. Opportunitiesregarding Public Procurement and Business and Human Rights agenda • UNWG on B&HR is deepening work on the State-Business nexus. Started by SOE Report to Human Rights Council (June 2016), followed by Report that will include chapter on Public Procurement (June 2018). • Regional “races to the top” are including the State as economic actor as part of regular work. Ex Interamerican Public Procurement Network. • Collaboration with OECD is being strengthen beyond RBC working party, including SOEs, economic diplomacy and public procurement.

20. Final remarks • All business enterprises, have the responsibility to respect human rights • States should lead by example and do their utmost to ensure full respect human rights and act as role models • It is a matter of policy coherence, legal obligations, reputation and credibility. • No guidelines will replace political will and local leadership.

21. Thank you!www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspxwg-business@ohchr.org