Structures and mechanisms to strengthen engagement with non-state actors in the protection and promotion of human rights

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Kenner, Jeffrey
Schmitt, Pierre
Sissins, Katrina
Wallace, Stuart
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The previous reports in this work package have demonstrated that the European Union (EU) as a whole makes substantial efforts to engage with a range of Non-State-Actors (NSAs) encompassing i) businesses, including transnational corporations (TNCs) and indigenous SMEs; ii) civil society organisations (CSOs), economic and social partners; iii) international financial institutions (IFIs); and iv) individual human rights defenders (HRDs). That does not mean that engagement with these NSAs on the subject of human rights is perfect or that it cannot be improved, but the EU is clearly starting from a strong position and adaptations aimed at improving engagement should be possible within the existing frameworks. This report seeks to identify further steps that the EU can take to streamline and strengthen its engagement with NSAs in the protection and the promotion of human rights. Three cross-cutting issues related to EU engagement with NSAs on human rights are examined in this report from a transversal perspective: public consultations, transparency and coherence. Public consultations, and more particularly stakeholder consultations, serve as a key point of engagement with NSAs across the EU in the policy-making process. The EU regime governing public consultations has been revised recently with the adoption of the Better Regulation Package, which presented new Guidelines for the European Commission on 19 May 2015. The practical value of these Guidelines remains to be seen, as the effective implementation of these Guidelines requires a whole shift in the way the Commission has been functioning so far. Our research considers that public consultation needs to be less formulaic, less statistical and less of a ‘tick-box’ exercise. This report proposes a number of recommendations on how the Commission should implement these Guidelines, notably by systematically consulting human rights organisations at an early stage of the policy-making process, by pro-actively reaching out to affected communities and human rights defenders in its consultations and by systematically assessing the human rights impacts of EU draft legislation. Moreover, the Regulatory Scrutiny Board should include at least one person with expertise in the field of human rights. The second cross-cutting issue, transparency, is the lifeblood of engagement. If NSAs are not aware of EU activities, policy developments and the policy-making process more generally, they cannot contribute to them. This report demonstrates how continuous pressure from a variety of quarters, the European ombudsman, Members of the European Parliament (MEPs), civil society and the general public, has led to increased openness and transparency of the EU’s activities. However, there is still room for significant improvements, notably in relation to the systematic dissemination of documents to NSAs and a better communication of EU actions and policies to HRDs and CSOs working on the ground. The lack of coherence in EU policy-making and implementation is the third cross-cutting issue examined in this report. The principle of coherence, often associated with consistency, is one of the main challenges for EU policy-making and the EU has had long-running difficulties in producing unified policies from a disparate set of competences. The EU can sometimes serve as a catalyst for engagement between different NSAs and it should ensure that human rights issues become a central theme in this engagement. The EU should think of its engagement with NSAs on the subject of human rights holistically as much as possible. Development financing has been examined in this report as an example of this type of cross-cutting engagement with NSAs in which the EU should try to leverage the inter-relationship between CSOs, IFIs, business and HRDs arising from its work to promote better human rights outcomes. Following these cross-cutting issues, the report focuses on the EU’s engagement with each group of NSAs individually. It begins with an examination of how the EU could engage with IFIs to improve the protection of human rights and increase development policy coherence. The report discusses how the EU can utilise existing frameworks, such as the network of independent accountability mechanisms for IFIs and the EU Platform for Blending in External Cooperation to strengthen the engagement of the EU with IFIs on the protection and promotion of human rights. The report also contains a case study on the Greek financial assistance program implemented following the financial crisis with the assistance of the International Monetary Fund (IMF) to assess the EU’s engagement with the IMF in relation to the promotion and the protection of human rights. The authors of the report recommend that both the EU and the euro area speak with one voice within the Troika in order to strengthen their position and ensure a more coherent representation. The division of tasks within the Troika (European Commission, the European Central Bank and the IMF) should be clarified for future negotiations to increase the transparency of the decision- making process and to allow for the determination of eventual responsibilities. The EU should also conduct credible human rights impact assessments as a prerequisite to providing loans. Finally, the recent proposal for a European Pillar of Social Rights is discussed in the report. This pillar could add a social dimension to economic integration and lead to a deeper and fairer Economic and Monetary Union overall. The authors consider that this framework could play a central role in the impact assessments of the measures negotiated between the Troika on the one hand and the Member States on the other hand. On the subject of EU engagement with business, the authors call for a number of changes in EU policy. The EU needs to strengthen its engagement with SMEs, trade unions and consumer groups on the subject of business and human rights as these groups have deep-seated scepticism of this policy area. The EU should abandon the divisive language of Corporate Social Responsibility (CSR) with its connotations of voluntarism and perceptions that it only applies to larger corporations and embrace the broader and more neutral language of business and human rights. The report identifies a need for stronger political leadership and commitment to business and human rights within the Commission and greater coherence between the Commission and the Parliament on the subject of business and human rights. The subject of business and human rights as whole needs to be better integrated and co-ordinated across different policy areas like trade, development, procurement, financial regulation etc. Finally, the EU needs to play a more active role in providing advice and information to SMEs on business and human rights issues. The EU’s engagement with civil society can be described as a patchwork of dialogues. The challenge for the EU is to provide efficient and effective dialogue structures that are not replicated, and are consistent and coherent across the EU institutions. In order to diversify the CSOs that the EU engages with, the authors of this report recommend that the EU increases the formality of selection procedures to deal with preferential treatment of certain CSOs. Our research also identified a number of opportunities by which the EU can strengthen engagement through diversification to include more grassroots CSOs and boost the ownership of local actors. The EU should expand the use of information and communication technology to engage with smaller CSOs through online dialogue and advertise consultations more widely through the internet to target smaller CSOs. A number of suggestions have been discussed in this report to improve the streamlining of engagement structures, ranging from an enhanced coordination between expert groups to the expansion of mechanisms that work well, such as the EIDHR Forum and the EU-NGO Forum, from the international level to regional or national levels. Coherence in dialogues with civil society is necessary for effective EU-CSO interactions on human rights and the Action Plan on Human Rights and Democracy 2015-2019 should be at the heart of strengthening engagement with CSOs. The research also highlighted the importance of funding for CSOs to increase their capacity to engage effectively with the EU in human rights protection in third countries. The research identified the many problems that CSOs face in obtaining funding, including the complexity of the process, the inexperience of funding evaluators and the competition between CSOs. We recommend that the EU do more to facilitate the ability of smaller CSOs to access funding, for example by engaging in capacity-building or providing for sub-granting. Overall, there are numerous challenges but many opportunities for change. In the last section, a case study looked at the special case of the social partners as an example of deep civil society engagement. The case study demonstrates that autonomous social dialogue is an effective and dynamic tool for cross- industry and grassroots involvement, yet there are concerns over the representativeness of social partners. The report recommends mutual learning between the social partners and other CSOs. The methods used in social dialogue have some potential to be adapted to other areas of civil society engagement. In order to strengthen its engagement with HRDs, the communication channels used by the EU to contact HRDs should be improved and the EU should adopt a pro-active approach in contacting HRDs. The European Commission should ensure that all relevant contact details are published on the delegations’ websites. The practice of using filter groups in EU missions in third countries should be further developed in order to provide HRDs with an established point of contact. A thorough analysis of the circumstances in which a HRD is operating should be undertaken in order to ensure safe and effective communication with HRDs. There is no ‘one-size-fits-all’ approach and the EU should analyse the circumstances and provide security and emergency plans to support the HRDs in the field. The recently established EU Human Rights Defender Mechanism, managed by a consortium of 12 independent international NGOs and funded by the EIDHR, constitutes a positive development strengthening the EU’s engagement with HRDs and a relevant example of a collaborative effort, joining the forces of CSOs active in human rights to the ones of the EU in seeking to protect HRDs. In addition to the emergency support put in place by this mechanism and by its commitment to reaching HRDs in remote and dangerous areas, this EU Mechanism could also support HRDs in obtaining EU funding. The complexity and diversity of procedures and eligibility criteria surrounding EU funding generates the need for very clear communication by the EU to HRDs and by CSOs active in the field to increase the visibility of these tools and to support HRDs in the application process.