By Daniel Morris
Northern Ireland Human Rights Commission
The UN Committee on Economic, Social and Cultural Rights (CESCR) has produced a draft general comment on State Obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) in the Context of Business Activities.
The ICESCR is one of the two main human rights treaties worldwide. The Committee is made up of 18 independent experts who monitor implementation of the ICESCR by States parties. In its general comments, the Committee provides guidance on how states’ obligations under the ICESCR should be interpreted.
The Committee’s draft general comment on business and human rights expands on a range of business and human rights issues, drawing on the UN Guiding Principles on Business and Human Rights as well as the ICESCR.
Notably, however, public procurement is not addressed by the current draft, even though it is clearly identified as an aspect of the state duty to protect under the UN’s “Three Pillar” Framework on Business and Human Rights.
The Northern Ireland Human Rights Commission (NIHRC) produced a report in 2013 on public procurement and human rights, which analyses the human rights obligations of public authorities in Northern Ireland in relation to public authorities and makes recommendations on how these can be fulfilled.
Since then, NIHRC has engaged with the Northern Ireland Department of Finance to pilot a project to embed human rights protections in public procurement.
Based on these developments, the NIHRC has made a submission to the UN Committee on its draft general comment.
In this submission, the NIHRC highlights that:
- In OECD countries, public procurement contracts account on average for 12% of GDP and is a substantial component of the overall economy.
- Public procurement can be the single most important source of revenue in some sectors, including health and research-related industries, construction and transportation.
The submission further highlights that:
- Certain areas of the general law have a high relevance for the conduct of public procurement, as well as for the design and terms of public procurement contracts. Amongst these are: anti-corruption law; environmental law; health and safety law, and; anti-discrimination law.
- To this list now needs to be added human rights. It is clear that government and private sector actors have overlapping responsibilities to ensure that human rights are respected in the conduct of public procurement processes, in the terms of public procurement contracts, and throughout the performance of such contracts, i.e. in the production and delivery of the purchased goods and services in question. Some jurisdictions in the United Kingdom have introduced legislation to allow for the consideration of social, environmental, and human rights factors in a procurement process.
The submission further notes that:
International human rights law imposes on states a general obligation to secure enjoyment of the human rights, which extends to “positive obligations”. This means that the state’s duty to guarantee effective enjoyment of human rights goes beyond ensuring that the government itself respects rights. Rather, the state must also take reasonable measures to prevent human rights abuses by third parties, including private sector actors, for example, by enacting laws and securing their effective enforcement, through education, information, monitoring and, where necessary, the deployment of sanctions.
With regard to socio-economic rights, the nature of the state’s duties under international human rights law are slightly different. It is recognised that the state may need to balance competing considerations in the course of development, leading, amongst others, to the principle of progressive realisation of economic, social and cultural rights to the maximum of available resources.
Nonetheless, a minimum core obligation must be guaranteed, satisfying “at the very least, minimum essential levels” of these rights. For example, the minimum core obligations emanating from the right to health include, inter alia, a duty to ensure access: to health facilities, goods and services on a non-discriminatory basis; to minimum essential food, and to basic shelter, housing and sanitation. Government must further ensure equitable distribution of all health facilities, goods and services, provide essential drugs, and adopt and implement a national public health strategy and plan of action.
On this basis, it is clear that public authorities in Northern Ireland, for example, have discretion over the approach they take to progressively realising economic and social rights through social benefit clauses. By contrast, public authorities do not have discretion over whether or not they take reasonable steps to prevent human rights abuses associated with public procurement.
The submission further notes that:
The UNGPs afford special attention to the state’s role when it acts as a commercial actor. Under the heading, “the state-business nexus”, Guiding Principle 6 states:
‘States should promote respect for human rights by business enterprises with which they conduct commercial transactions.’
The Commentary to Principle 6 elaborates:
‘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.’
Contracting out of public services is also specifically addressed by the UNGPs. Guiding Principle 5 provides:
‘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.’
The Commentary on Principle 5 provides that:
States do not relinquish their international human rights obligations when they privatise the delivery of services that may impact upon the enjoyment of human rights. Failure by a State to ensure that business enterprises performing such services operate in a manner consistent with the State’s human rights obligations may entail… legal consequences for the state itself. As a necessary step, the relevant service contracts or enabling legislation should clarify the State’s expectations that these enterprises respect human rights. States should ensure that they can effectively oversee the enterprises’ activities, including through the provision of adequate independent monitoring and accountability mechanisms.
A number of other submissions to the Committee, including one by the Netherlands Institute for Human Rights, and another by ICAR, both available here, similarly highlight the omission of guidance on public procurement.
The UN Committee on Economic, Social and Cultural Rights will host a general day of discussion on Tuesday 21 February 2017 in Geneva, to provide an opportunity for stakeholders to provide further input to the Committee on the draft general comment.
All written submissions on the draft general comment are available here.