In 2011, the UN Human Rights Council established the UN annual Forum on Business and Human Rights “to discuss trends and challenges in the implementation of the UN Guiding Principles on Business and Human Rights (UNDPs). The Forum is guided by the UN Working Group (UNWG) on Business and Human Rights, which recommends states to develop, implement and regularly update National Action Plans (NAPs) on Business and Human Rights. For this purpose, it developed a Guidance (2016) that defined a NAP as an “evolving policy strategy developed by a State to protect against adverse human rights impacts by business enterprises in conformity with the UN Guiding Principles on Business and Human Rights (UNGPs).” The Guidance identified four essential criteria to implement effective NAPs:
- The UNGPs are the main framework of NAPs, which should reflect the state’s duties to protect against adverse business-related human rights impacts and provide access to effective remedy. It also needs to support businesses to respect human rights by conducting human rights due diligence (HRDD) processes and by implementing operational-level grievance mechanisms.
- NAPs need to be context-specific, this is, states should identify actual or potential business-related human rights abuses or adverse impacts occurring within its jurisdiction or caused by businesses headquartered in its jurisdiction in other countries.
- NAPs should be an inclusive and transparent process, and therefore, all stakeholders should be allowed to actively participate in the process.
- NAPs are dynamic processes, so the states should review and update them to tackle realities and to incorporate progress.
States use NAPs not only in the framework of the UNGPs, as they have developed NAPs to promote and protect human rights in general, to fight climate change or to develop and implement the 2030 agenda (SDGs). The European Union (EU), the Council of Europe (CoE) and the OECD actively support states to develop, implement and update NAPs on business and human rights.The Danish Institute for Human Rights (DIHR), and the International Corporate Accountability Roundtable (ICAR) developed a more detailed toolkit on NAPs (2017) that explained the process as follows:
One of the steps of the NAP lifecycle is a National Baseline Assessment (NBA).
What are the aims and scope of a NBA?
States are expected to conduct a NBA in order to reach the following objectives:
- To assess which is the level of implementation of the UNGPs at the legislative and policy level
- To identify the main gaps in the implementation
- To map the most important adverse human rights impacts caused by businesses headquartered in its territory in order to identify the most salient human rights at stake.
- To inform the most important actions that the NAP needs to adopt.
- To assess whether the actions of previous NAPs have been implemented and whether they have been beneficial for rightholders.
- To support stakeholders in order to make the NAP a transparent and accountable process.
A NBA covers the three pillars of the UNGPs, this is,
- the state responsibility to respect, protect and fulfil human rights
- the business responsibility to comply with all applicable laws and to respect human rights
- the state and business responsibility to provide appropriate and effective remedies when they cause adverse impacts on human rights.
The toolkit on NAPs (2017) and the conceptual and methodological framework of indicators developed by the Office of the High Commissioner on Human Rights (OHCHR) are the main frameworks to identify and monitor how states implement the UNGPs. Therefore, a NBA seeks to assess the following parameters:
- Structural indicators: What have states done to address their international human rights obligations?
- Process indicators: What have states done to comply with the human rights legal framework?
- Outcome indicators: Which are the results of those legislative and policy measures?
How is NBA developed?
The process of a NBA usually covers the following steps:
- Step 1: Constitution of the team
- Step 2: Stakeholder information
- Step 3: NBA scoping and definition of the methodology
- Step 4: Data collection
- Step 5. Data processing and assessment
- Step 6. Formulation of the report in layman’s terms and of recommendations
- Step 8. Stakeholder and expert consultation sessions on the report and recommendations
- Step 9. Incorporation of the feedback and dissemination of the NBA
Who should be involved?
The NBA needs to guarantee transparency in the process and in the data used and processed during the assessment. Therefore, a range of stakeholders (businesses, government, CSOs, business and victims associations and academia), should be invited to participate in the process to raise awareness about the process, and to get feedback about critical issues to consider during the process. If the state has already mapped the stakeholders for a previous NAP, they should be contacted to actively participate in the NBA and to provide the information they might have.
As the context is important, all businesses and rightholders should be informed about the process and invited to participate. Moreover, marginalised groups, even located outside the state borders need to be identified and contacted to allow them to provide useful information and feedback on the NBA.