STATE COMMITMENT IN IMPLEMENTING THE ...

STATE COMMITMENT IN IMPLEMENTING THE UNGPs AND THE EMERGING REGIME OF NATIONAL ACTION PLANS A Comparative Analysis Marta Bordignon*

Abstract The recent growth of the international business and human rights (BHR) agenda has led to the emergence of an unprecedented debate regarding the role of the State in protecting human rights from corporate-related violations, as provided by the first pillar of the UN Guiding Principles (UNGPs) on business and human rights. In this regard and following the adoption of the renewed European Strategy on Corporate Social Responsibility 2011–2014,1 many European and extra-European States have expressed in different ways their commitment to implementation of the UNGPs. Some of them have already addressed this issue, developing so-called national action plans (NAPs). The paper will thus adopt the UN Guidance, the International Corporate Accountability Roundtable, the Danish Institute for Human Rights (ICAR-DIHR) Toolkit and the criteria of the de Felice-Graf paper as methodological instruments to conduct a crosschecked analysis both of the NAPs already released and of the NAPs’ consultation/drafting phases at a global level, with a special focus on the experiences of Italy, the United Kingdom (UK) and the United States of America (US). For this purpose, the paper will provide a snapshot of the States’ action in adapting their internal legislation and policies to the international and European initiatives on business and human rights, taking into consideration both the consultation/drafting processes undertaken and the content of the NAPs. Keywords: Business and Human Rights; Guiding Principles; Implementation; National Action Plan * 1

PhD in International Law, University of Rome ‘Tor Vergata’, Italy. COM(2011) 681.

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Abbreviations: BHR Business and Human Rights CSO Civil Society Organization CSR Corporate Social Responsibility DIHR Danish Institute for Human Rights ECCJ European Coalition for Corporate Justice FCO Foreign and Commonwealth Office HR Human Rights ICAR International Corporate Accountability Roundtable NAP National Action Plan NBA National Baseline Assessment NGO Non-Governmental Organization NHRI National Human Rights Institution OECD Organization for Economic Cooperation and Development SOE State-Owned Enterprise UK United Kingdom UN United Nations UNGPs United Nations Guiding Principles US United States WG Working Group

1.

INTRODUCTION

The evolution of the protection of fundamental human rights (HR) since the endorsement of the Universal Declaration of Human Rights in 1948, especially in the relationship between human rights and all sectors of civil society, has led to the emergence of a possible interconnection between fundamental rights and business activity. Since the appointment of Prof. John Ruggie as the United Nations SecretaryGeneral’s Special Representative for Business and Human Rights, the international community has focused its attention on the issue of alleged HR violations committed by businesses, which culminated in the adoption of the UN’s ‘Protect, Respect and Remedy’ Framework 2 and the related UN Guiding Principles.3 The main purpose of the UNGPs– as stated by the UN Human Rights Council – is to provide for a better

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UN Human Rights Council, Protect, Respect and Remedy: a Framework for Business and Human Rights – Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie(A/HRC/8/5) (2008). UN Human Rights Council, Human Rights and Transnational Corporations and other Business Enterprises (A/HRC/RES/17/4) (2011).

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State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

and more comprehensive implementation of the three pillars4 established by the Ruggie Framework, as well as to improve the global recognition of the relevance of the issue of business and human rights. As far as the role of States is concerned, there are some reliable examples of how to approach this issue, especially in the Anglo-Saxon – namely UK and US – and northern European countries. In these cases, the problems regarding human rights protection in the business sector have already been addressed through the adoption of new legal instruments and the study of the possible impacts of business activities on fundamental rights. In order to offer a comprehensive overview of State practice in this field, after considering the existing toolkits recently released by international organizations, NGOs and experts for promoting and facilitating implementation of the UNGPs, the paper will therefore focus on States’ initiatives at the European and extra-European levels. Furthermore, a deeper analysis of case studies of Italy, the UK and the US will be carried out: the three countries have been selected as being the most representative examples of each of the three groups of States identified according to the current development of their process of compliance with the UNGPs (namely front-runners, second movers and laggards). The UK National Action Plan on BHR, indeed, was the first to be released in September 2013; Italy has already published a National Baseline Assessment and a first version of the NAP, and is currently in the drafting phase of a final version; whilst the US government has recently concluded the first round of public consultations with relevant stakeholders. In conclusion, the paper aims at conducting a comparative analysis of the three case studies selected – namely Italy, the UK and the US – on the basis of the criteria provided by the three frameworks available so far – the UN Guidance, the ICARDIHR Toolkit and the Damiano de Felice and Andreas Graf paper – in order to evaluate the content of the National Action Plans, National Baseline Assessments and the related drafting and consultation processes.

2.

NATIONAL ACTION PLANS: THE UN GUIDANCE ON NAPs

Since the endorsement of the UNGPs, some UN Member States have begun to focus their attention on the needed implementation of the Guiding Principles and the updating of their national Corporate Social Responsibility (hereinafter CSR) policies. In this regard, the results of these years of governmental commitment, the emerging constraints and the plans for future engagement have been presented during the initiatives organized by the UN Working Group on BHR, which have focused on the implementation of the UNGPs involving several States, CSOs and enterprise 4

The Th ree Pillars are: (i) the State duty to protect against HR violations by third parties; (ii) the corporate responsibility to respect HR; (iii) the need for greater access by victims to an adequate remedy.

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representatives. Furthermore, during the Open Consultation held in Geneva in February 2014 Mr Michael Addo, a member of the UN Working Group on BHR (WG), outlined the Group’s position in relation to States’ duty to protect HR from corporate-related abuses. He remarked that States were being requested (i) to draft at least a baseline assessment on the CSR and BHR situation in the country, before elaborating their NAPs; and (ii) to follow the best practices of other countries that had already published their NAPs, although a common model for the draft ing procedure did not exist. The WG preferred a process based on consultation with all the relevant stakeholders or a NAP model. As far as the essential elements of the NAP are concerned, the WG has reiterated the need to create a structure for monitoring the status of UNGP implementation by States and to establish a grievance mechanism, or update existing ones, in order to ensure that victims have access to a remedy. The most relevant follow-up of the Open Consultation was the roadmap presented by the WG for developing guidance for States engaged in implementing their NAPs. The main milestones of the roadmap included (i) the online repository launched after the Open Consultation for collecting all the NAPs released by States; (ii) the establishment of an annual review process; (iii) the online consultation on NAP baselines; and (iv) the publication of draft guidance on NAPs, as presented at the Third UN Forum on Business and Human Rights (Geneva, December 2014). Concerning the guidance, the roadmap sets out the five main phases through which a NAP should be realized, namely (i) initiation, including a formal government commitment and the publication of a work plan; (ii) assessment and consultation, involving the identification of State’s gaps in complying with Human Rights international standards and principles and the organization of consultations with stakeholders; (iii) draft ing an initial NAP; (iv) implementation of the planned actions and monitoring mechanisms; (v) updating the implemented NAP after the identification of priority areas and consultation with stakeholders. Finally, it identifies the essential features that each NAP should have, such as a strict connection with the UNGPs, reference to the country’s current situation in terms of HR policies, the transparency and inclusiveness of the draft ing process, and the provision of monitoring and updating mechanisms. Furthermore, according to the preliminary recommendations of the European Group of National Human Rights Institutions (NHRIs), both the process of implementation and the content of a NAP should definitely (i) reflect the whole range of HR impacted; (ii) be based, as stated by the WG, on a baseline assessment and on a broad-based consultation with external experts (e.g. academics or members of HNRIs); (iii) be independent of the domestic CSR policy, transparent and clear, involving also all the vulnerable groups, not only NHRIs as independent experts; and (iv) include monitoring evaluation, through the selection of achievable and timely targets and the provision of review mechanisms.

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Given the commitments demonstrated by the WG and the European Group of NHRIs to assisting States in this field, it would be helpful to understand the individual initiatives implemented both by the concerned NGOs and by some academics and researchers, so as to provide a complete and updated overview of this phenomenon.

3.

THE ICAR-DIHR TOOLKIT AND THE OTHER CRITERIA

As well as the relevant involvement of States in this field, action by NGOs and CSOs should be considered in order to understand more easily the entire NAP implementation process and the role played by these actors in cooperating with public authorities. Also worth mentioning is the recent article by Damiano de Felice and Andreas Graf,5 which contains a primary assessment of the current UNGPs implementation process at a global level and introduces eight criteria for the NAP development process and content. Regarding the contribution of NGOs, since 2012 the International Corporate Accountability Roundtable (ICAR) and the Danish Institute for Human Rights (DIHR)6 – as included in the ICAR Statement to the US State Department on UNGPs implementation7 – have been engaged in supporting this process. To this end, they have decided to create a common platform for improving States’ involvement in addressing the NAP draft ing process. In August 2013 they launched the project ‘NAPs: State Strategies for Implementation of the UNGPs’, with the aim of releasing a NAP toolkit containing the advised State measures for UNGPs implementation. The NAP Toolkit, released in June 2014, is composed of three main parts: 1) a National Baseline Assessment (NBA) Template; 2) a NAP Guide; and 3) mechanisms for monitoring and reviewing NAPs. The first section contains all the required State activities for each GP: bottom-up (community-based) and top-down (desk-based) methodologies, and a framework for assessing State progress. The second part includes a model NAP, all the criteria needed to design it, the minimum content required, the consultation process, the territorial and extraterritorial issues, and all the required State laws and regulations regarding procurement, investigation, monitoring, auditing and reporting. The final part contains proposals for monitoring and reporting the effectiveness of NAPs and conducting a periodic evaluation and follow-ups with all the involved stakeholders. The Toolkit also provides a set of criteria in six different 5

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D. de Felice, A. Graf, The Potential of National Action Plans to Implement Human Rights Norms: An Early Assessment with Respect to the UN Guiding Principles on Business and Human Rights, 7(1) Journal of Human Rights Practice 40–71 (2015). For further information about the Danish Institute’s activities, please refer to: www.humanrights.dk/ (last visited in July 2015). ‘ICAR Statement to State Department on UN Guiding Principles Implementation’ was issued during the Civil Society Workshop hosted by the US Government to discuss opportunities and limitations on implementing the UN Framework and the UNGPs, 31 July 2012.

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areas relating to NAP processes and content, reflecting stakeholder consultations, a literature review and ICAR-DIHR’s own observations concerning best practice. The six areas concerned are 1) governance and resources; 2) stakeholder participation; 3) National Baseline Assessment; 4) scope, content and priorities; 5) transparency; and 6) accountability and follow-up. The ICAR project, indeed, combines a consultation process with regional and global stakeholders (approximately 280 representatives of governments, civil society, business, investors, academia, national human rights institutions, and regional and international organizations) and the research undertaken by ICAR experts. Given this double dimension, the project has readily led to the formulation of the toolkit for supporting States’ progress toward effective compliance with their duty to protect under the UNGPs. Finally, the project aims at complementing the initiatives of all the relevant subjects, including the UN Working Group – in fulfilling its mission of promoting a comprehensive dissemination of the UNGPs at the global level – NGOs and, obviously, States. So far, the ICAR-Danish Institute project can be considered one of the most effective and reliable tools for helping States and public authorities to approach NAP draft ing and for assessing existing NAPs in terms of the checklist provided in Annex 5. It is worth noting, however, the role played by the eight criteria for NAP production listed in the de Felice-Graf paper, which could be included among the existing assessment tools both for NAP content and its development process. According to the first four criteria, the NAP process should (i) be based on a baseline assessment; (ii) involve all relevant State agencies; (iii) guarantee effective engagement and multistakeholder participation; and (iv) provide a continuous monitoring process. Moreover, in terms of content the NAP should (v) clearly state a firm commitment to UNGPs implementation; (vi) conform with the UNGPs content and structure; (vii) define an explicit deadline for future actions; and (viii) consider capacity-building initiatives.

4.

A GLOBAL PERSPECTIVE

On the basis of the current status of NAP implementation (July 2015), it is possible to distinguish three groups of States at the global level. The first group, which could be defined as the front-runners group, is composed of those countries that have already published their NAPs, such as Colombia, Denmark, Finland, Lithuania, the Netherlands Norway, Sweden, and the United Kingdom. To the second movers’ group belong Belgium, France, Germany, Indonesia, Italy, Malaysia, Spain and Switzerland, while to the last group,the laggards, belong Ireland, Myanmar, Tanzania and the United States of America. The States of the second group are those that have already published a baseline or are in the drafting/consultation phase; and in the third group are those currently approaching the issue of UNGPs implementation or that have

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recently committed to publishing a NAP. A snapshot of the three groups will be provided below, while the Italian, UK and US cases will be analysed in depth in the following section, applying the above-mentioned toolkits and criteria. The first example of the front-runners group to be analysed is the Netherlands. Since mid-2012 the Dutch Government has created an interdepartmental Working Group on Business and HR, with the aim of introducing the UNGPs into Dutch legislation. The consultation process has looked at both the CSR and BHR policies, including 27 interviews conducted by external experts, consultation meetings with enterprises, NGOs and implementing organizations, and a final roundtable with all the involved stakeholders, in order to analyse and promote State and business accountability. The Dutch NAP, presented to the Parliament in December 2013, is the result of this process. It has been commented on both by a Dutch NGO and the Dutch Institute for Human Rights. On one side, MVO Platform – a network of Dutch NGOs and trade unions – pointed out some weaknesses in the NAP, especially regarding i) access to a remedy for victims of business-related abuses; ii) the lack of coherence between the UNGPs and the policies proposed by the Dutch Government; and iii) the implementation of CSR compliance parameters already existing within the Dutch policies. On the other side, the Dutch Institute for Human Rights carried out an accurate analysis of the existing policies and those intended and contained in the NAP, aimed at implementing the UNGPs. After a consultation process with a number of NGOs, other experts and business representatives, in August 2014 the Institute formulated its response, which included some issues on which further action was requested (such as HR violations in the Netherlands, access to a remedy for victims, and NAP follow-up) and some recommendations (e.g. raising Dutch companies’ awareness and information, the role of provinces and municipalities in implementing BHR policies; and removing procedural inequalities between victims and companies). Another European Country deeply committed to developing a NAP is Denmark, which released its NAP in March 2014. Previously, the Danish Government had published its CSR NAP 2012–2015, entitled ‘Responsible Growth’, which also contained actions for UNGPs implementation.8 The NAP on Business and HR was developed by the Ministry for Business and Growth and the Ministry of Foreign Affairs. The Ministry of Employment, the Ministry of Justice, the Export Credit Agency and the Danish National Institute for Human Rights contributed to the content of the NAP. Actually, the NAP is the result of the recommendations presented mainly by the Danish Council on Corporate Social Responsibility and the suggestion of the Danish Government and of the most relevant business and financial organizations, NGOs, local municipalities and trade unions to the Danish leading authorities. In addition, the first draft of the NAP was sent to the Danish Working

8

Danish Government, Responsible Growth – Action Plan for Corporate Social Responsibility 2012– 2015.

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Group9- created by the Danish government in December 2012 – which developed some recommendations on non-judicial mediation and grievance mechanisms for monitoring business conduct. The ‘Danish National Action Plan – Implementation of the UN Guiding Principles on Business and Human Rights’ is structured in three sections, based on the Three Pillars of the UNGPs. In particular, the main focus of the Plan is on the business activities of Danish enterprises operating abroad, because the economic and reputational risk for Danish companies is perceived as higher when they operate outside the Danish territory. Unlike other European countries, Denmark has not organized an effective consultation process with all the involved stakeholders, undermining in this way the results achieved within the NAP. More recently, Finland and Lithuania have also released their NAPs on Business and Human Rights. The Finnish Ministry of Employment and Economy, jointly with a working group of representatives of other Ministries, presented a Finnish NAP on BHR to the government in September 2014. Based on the 2012 Finnish Directive on Corporate Social Responsibility, the Plan offers some key aims, such as legislative reporting, a definition of due diligence obligations and the application of social criteria in public procurement. In February 2015 the Government of Lithuania sent to the WG its NAP on Business and Human Rights, containing the three main objectives to be pursued by the Government and referring to implementation of the UNGPs, namely 1) giving effect to the State’s duty to protect, defend and respect HR; 2) promoting corporate responsibility and respect in the field of BHR; and 3) ensuring access to an effective remedy. All these objectives are to be achieved through measures planned or already implemented by the Lithuanian Government. Among the second movers at the European level, Belgium could be mentioned: it has recently monitored and mapped the related activity of the European States involved. In particular, on 10  April 201410 the Belgian Ministry of Foreign Affairs organized a closed roundtable for sharing the experiences on NAP’s draft ing with other European countries, such as the Netherlands and Spain. Participating in the event were representatives of both these Governments, of Belgian CSOs and of the UN High Commissioner for Human Rights, in order to provide a complete overview of the drafting and consultation processes implemented by States regarding the preparation of their NAPs. The Belgian Government has already taken some steps in the process, such as a first stakeholder consultation and a gap analysis. Concerning Switzerland, in response to the request formulated by a member of the Swiss National Council, the Federal Government is developing a NAP for implementing the UNGPs. The Federal Department of Foreign Affairs (FDFA) and the State 9

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The Danish Working Group is composed of key stakeholders from the CSR Danish Council, including the Confederation of Danish Industry, the Danish Confederation of Trade Unions, the Danish 92 Group, the Danish Shipowners’ Association and the chair of the Council. Business & Human Rights National Action Plans: Sharing Experiences and Best Practices, forum discussion organised by the Belgian Ministry Foreign Affairs, Brussels, 10 April 2014.

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State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

Secretariat for Economic Affairs (SECO) commissioned the Swiss NGO ‘Swisspeace’ to prepare a document containing the results of a consultation process involving businesses, NGOs and academics for mapping the current Swiss situation on BHR.11 The study, including 200 recommendations in 42 different areas, identified a number of options available for governmental action in this field and the wide-ranging expectations of the different stakeholders. Furthermore, in 2014 the Swiss Centre of Expertise in Human Rights (SCHR) published ‘Human Rights Implementation in Switzerland’, a baseline study analysing the implementation of recommendations and decisions by international HR bodies in Switzerland and including, among the six areas considered, business and HR. The Swiss case could be seen as a unique instance (unicum) in the European environment. Firstly, although Switzerland is not a member of the European Union, it is following the UNGPs implementation process through the development of a NAP. Secondly, due to the location of all the UN Offices on Human Rights in Geneva, human rights have always been a sensitive issue on the Swiss political agenda and the Swiss Government has often been involved in HR issues, especially during the Ruggie mandate. During 2013, the French National Human Rights Institution (Commission Nationale Consultative des Droits de l’Homme – CNCDH) presented a set of recommendations to the French Government aimed at promoting the development of a NAP starting in early 2014. In the same year, the Norwegian Government commissioned a mapping analysis, published in August 2013,to facilitate the draft ing of a NAP that has been released in October 2015 (only available in Norwegian). In May 2015, Germany released its National Baseline Assessment on BHR, which is so far available only in German (July 2015). According to the NBA’s table of contents, all the Pillars will be addressed, including the extra-territorial dimension of the State’s duty to protect HR and of business responsibility. Spain, instead, has already published three different draft versions of its NAP and the final one – launched in June 2014 – is still in the process of being approved by the Spanish Council of Ministers. Finally, in June 2015 Indonesia has announced that it is in the process of drafting its NAP and in March 2015Malaysia published a Strategic Framework for a NAP. Among the Latin American countries, Colombia is the only one that has already published a document related to UNGPs implementation. The so-called ‘CuadernoGuía of the UN Guiding Principles on Business and Human Rights: Gateway’ was drawn up by the NGO Social Innovation ‘Sustentia’ under the Project ‘Training and Dialogue on the Framework Business and Human Rights in Colombia’.12 This document aims at achieving the effective implementation and easier understanding of the UNGPs through the preparation of documents, media and materials to be moved to States, companies and also to rights-holders. In addition, in July 2014 the Colombian 11 12

Swisspeace, Swiss NAP on Business and Human Rights, KOFF Newsletter No. 125 (2014). The project was funded by AECID, with the technical development of ‘Sustentia’ Social Innovation and the DIS Foundation.

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Government launched its National Policy on Business and Human Rights (‘Lineamientos para una política de derechos humanos y empresas’) and in December 2015 the Colombian Action Plan was released (only available in Spanish to date). As for the so-called laggards, the Irish Government has launched a call for inputs on the development of a NAP on BHR. Among the most relevant contributions, several international NGOs have called for (i) a major role for human rights defenders and for CSOs in monitoring UNGPs implementation; (ii) strengthened support for the Government from the Irish Human Rights and Equality Commission; (iii) mandatory due diligence for all State-owned enterprises (SOEs) and agencies; and (iv) the transposition of the EU Directive on Non-Financial Reporting.13Myanmar, Poland and Tanzania have all given pledges to develop a NAP on BHR within the last year (respectively in February 2015, April 2015 and July 2014).

5.

A SPECIAL FOCUS ON ITALY, THE UNITED KINGDOM AND THE UNITED STATES

In order to provide a reliable assessment of the three selected case studies, this section undertakes an in-depth analysis of the current Italian, UK and US approaches to business and human rights. In particular, for Italy – being part of the second movers group – the NBA and the current draft NAP version are considered, while for the UK since September 2013 the final NAP version has been available. For these two countries the consultation and drafting processes, the NAP content and the related comments by involved stakeholders have also been taken into consideration. For the US, instead, being part of the laggards group, only the draft ing/mapping process will be analysed. The UK National Action Plan is the result of a consultation process with all the relevant actors, which was preferred by the UK Government to the gap analysis that other States have set out. The consultation took place in the cross-government Steering Group, which included all the players involved and also had the opportunity to discuss and share information in workshops attended by 50 companies and 25 NGOs representatives located in the UK. Following this series of workshops, in June 2013 the UK Government also organized a conference to give business and CSO representatives the opportunity to share views and opinions. In this regard, given the need to identify a method to communicate the NAP’s content to British businesses, a range of actions aimed at realizing this objective were included in the NAP, such as (i) the implementation of Government obligations to protect HR within the UK’s jurisdiction; (ii) support to UK companies to meet their accountability to respect HR at home and abroad; and (iii) a guarantee of access to a remedy for victims. The NAP is structured 13

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Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-fi nancial and diversity information by certain large undertakings and groups.

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in three main parts, following the UNGPs structure in Three Pillars; a fourth part, instead, looks towards possible further developments after the endorsement of the UNGPs. Each part contains an overview of the relevant UK legislation in force related to the specific sector examined, the actions already implemented and the planned future steps. The first part, regarding the State duty to protect HR, focuses on the existing UK legal and political frameworks related to business and HR, listing the legal instruments adopted or endorsed by the UK Government. The second part, related to the UK Government’s expectations of business compliance with HR, is based on the assumption that all UK-based companies are expected to be consistent with the BHR principles, be transparent in their activities, involve the potentially affected subjects and participate in or adopt grievance resolution mechanisms. Moreover, the UK Government is committed to updating and developing government guidance – including provisions for small and medium enterprises (SMEs) and encouraging trade unions and business associations to draft similar guidance for their respective sectors – to improve the level of awareness of diplomats and UK officials about BHR and to promote dialogue between public authorities and CSO representatives. Finally, the third part, relating to access to remedy, is especially focused on the activity of the existing grievance resolution mechanisms, such as the UK OECD National Contact Point, the Ombudsman, the Citizens’ Advice Bureau, the Government regulator in certain sectors and the Advisory, Conciliation and Arbitration Service (ACAS). In the conclusions, the UK Government recalls its commitment to promoting future actions for monitoring the international momentum behind business and HR, by reporting each year the actions adopted for NAP implementation, the objectives reached and interesting updates in this field. As for the UK Government’s commitment to releasing a new NAP version by the end of 2015, in March 2015 the Government launched an updating process with the aim of organizing workshops to take place in June-July 2015. Among the documents recently submitted to the UK Government related to the revision process, the Peace Brigades International briefing14 (dated July 2015) highlights some relevant issues related to the role of CSOs and NGOs to be addressed in the updated version of the NAP. In particular, the briefing makes four main recommendations to be considered by the UK Foreign and Commonwealth Office (FCO) concerning (i) better support to human rights defenders; (ii) more meaningful participation of CSOs in all BHR decision-making processes; (iii) the provision of clearer guidance for companies, especially in relation to HR impact assessment; and (iv) the promotion of an innovative model for business and development. Being the first NAP to be released at European level, it has since been the subject of many observations and commentaries. In particular, some aspects of the NAP’s content have been a focus of analysis and discussion by NGO representatives, 14

Peace Brigades International briefi ng, Revision of the UK National Action Plan on Business and Human Rights, 2015.

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academics and HR defenders. On one side, among the negative comments are (i) the lack of penalties for companies violating HR and of recognition of business responsibility in their entire supply chain, since the remedial actions are based on voluntary initiatives taken by businesses; (ii) in relation to public procurement, a lack of clarity about the extent to which the Government could exclude tenders ‘in certain circumstances’;15and (iii) the limited support for access to effective remedies for victims only within the UK jurisdiction, thus obliging the UK courts to judge civil cases involving UK companies under the Brussels I Regulation,16even though victims will not receive support for bringing their case. On the other side, some positive proposals have been identified, such as (i) the provision of incentives, at home and abroad, for UK businesses that meet their responsibility; (ii) a reassessment of business regulation to fi ll the gaps remaining in the current legislation, although it is not clear how and what form the reassessment will take; and (iii) referring again to public procurement, ensuring that State-investor contracts are compatible with HR in order not to undermine the host State’s ability to respect HR, even if it is unclear how this will take place. In conclusion, many positive aspects are present in the UK NAP and could be correctly implemented, although it lacks concrete proposals on how all these provisions will operate in practice and following a timeline. The second case study analysed in the present research is from Italy and could be considered a starting point for the State approach to CSR and BHR. Under the Italian political system, both the Ministry of Labour and Social Policy and the Ministry of Economic Development are competent to apply the national policies on CSR. Since 2001, the Ministry of Labour has played a leading role in adopting a multi-stakeholder approach and has made an original contribution through (i) a project grounded on the Green Paper published by the EU Commission in 2001; (ii) the establishment of the Italian Multi-stakeholders Forum on CSR in May 2004, which failed due to the political internal instability; (iii) the project CSR-SC (‘Corporate Social Responsibility – Social Commitment’)17; (iv) a document on CSR policy released in 2007 by the Ministry of Welfare18 containing the voluntary institutional approach to CSR, the consequent total absence of binding regulation in this matter and the peculiarity of the Italian industrial system, which is composed mainly of individual, small and 15

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Secretary of State for Foreign and Commonwealth Affairs, Good Business Implementing the UN Guiding Principles on Business and Human Rights, Section 2 (September 2013). The Regulation lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in EU countries. It was replaced by Regulation No. 1215/2012 (Brussels I Regulation Recast), which applies from 10  January 2015 (according to article 81). Project CSR – SC, the Italian contribution to the dissemination of CSR in Europe (Progetto CSR-SC, Il contributo italiano alla campagna di diff usione della RSI in Europa), Ministry of Labour and Social Policy (2004). Ministry of Welfare, Draft Working Paper for the Prodi Government on CSR in Italy (Proposta di lavoro per il Governo Prodi sulla RSI in Italia) (2007).

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State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

medium enterprises (50–249 employees); (v) some regulations regarding workplace health and safety,19establishing a Permanent Consulting Commission on this matter; and finally (vi) the role played by the Italian Government during the draft ing process of the Guidance on Social Responsibility ISO26000, considered as a challenge for public institutions about acting on their leverage in CSR matters. Given this brief overview of CSR initiatives at the Italian level since the beginning of the twenty-first century, it is now important to focus on the specific efforts in this field following the publication of the EU Communication on a renewed CSR Strategy, such as the elaboration both of NAPs on CSR and of business and HR. Given the publication in September 2013 of the Italian Action Plan on CSR and with the aim of complying with the EU Communication on CSR, the Italian Ministries involved have selected as lead authority the Ministry of Foreign Affairs and International Cooperation for the development of the Italian Action Plan on BHR. In the first period of the drafting process, the Italian Ministry of Labour and the Italian OECD National Contact Point have produced a mapping study on the state-of-the-art in Italian legislation on business and human rights, which was conducted by the Scuola Superiore Sant’Anna (Pisa, Italy) and presented to the Italian Parliament in November 2013.20 The study comprises13 fi les, each related to a different matter and identified on the basis of its relation with the content of the UNGPs and its relevance in the Italian legal and political system. A first group of fi les is related to the most sensitive economic issues for businesses, such as business and real estate law, incentives for disclosure and budget reporting, State involvement in business activities, public procurement, foreign direct investment and export credit regulations, and, finally, development cooperation. The second group analyses the HR issues usually included in the Italian political agenda, such as the rights of children, freedom of religion and gender discrimination. Two fi les concern the labour rights of irregular migrant workers and the relation between HR, environmental protection and business. The last two consider the role played by the Italian Government in relation to the UNGPs’ Third Pillar, namely access to judicial and non-judicial remedies. The internal structure of the document is organized to be useful for public officials and BHR experts; indeed, each fi le is the result of a survey conducted in relation to existing policies, to the legal instruments, to the related ministerial documents, to the relevant academic studies and to interviews with experts in each field. Each fi le is structured in the following way: (a) the text of the relevant Guiding Principle; (b) an analysis of the international and European legislation and practice in that field; (c) an examination of Italian norms and practices in relation to the requirements of the related Guiding Principle; 19

20

For instance: L. 123/2007, Misure in tema di tutela della salute e della sicurezza sul lavoro e delega al Governo per il riassetto e la riforma della normative in materia; D. Lgs. 81/2008, which includes the original defi nition of CSR given by the EU Commission in the 2001 Green Paper. Scuola Superiore Sant’Anna, Imprese e Diritti Umani: il caso Italia. Analisi del Quadro Normativo e delle Politiche di Salvaguardia (November 2013).

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and (d) a set of recommendations for adapting the Italian legal framework to the UNGPs, apart from the relevant international standards already recognized. In the last part of the document, the results contained in the study are summed up through an interdisciplinary approach, especially regarding HR due diligence policy. According to the outcomes expressed in the conclusions, the baseline study and gap analysis expected by States in the field of business and HR have already been recommended by the European Group of NHRIs21 as a reliable basis for the elaboration of NAPs. Furthermore, this study and analysis are necessary, especially for Italian companies owing to their limited awareness of the consequences of their activities for HR. As to the content of the Second Pillar of the UNGPs, although it concerns corporate responsibility to respect HR and does not directly refer to State commitment, it should be considered by all Governments, as stated in the study concerned. Business compliance with HR norms is part of the State’s duty to protect HR through the implementation of policies and actions, including financial and reputational incentives. In this sense, the Italian Government is required to cooperate with the EU and the main international research centres in order to promote the adoption of the existing legal tools, such as the EU Sector Guides.22 Finally, the Government should promote the adoption of HR due diligence by Italian companies, especially by SMEs,23 through promotional activities grounded on the involvement of business management, the probable occurrence of HR violations, the business and sector dimensions, and investment features. With the aim of facilitating the State’s commitment to supporting BHR actions, the study recommends the establishment of an inter-ministerial Working Group and a focal point in each Ministry involved, and the adoption of a multi-stakeholder approach for the draft ing of the NAP. The above-mentioned study could have been useful for addressing the BHR situation in Italy through the elaboration of a NAP based on the results achieved. Instead, given the interview campaign conducted and a careful analysis of the document published online (English version) in March 2014 by the Ministry of Foreign Affairs and International Cooperation,24 the study has not sufficiently been taken into consideration in the draft version of the Italian Plan on BHR, titled ‘The

21

22

23

24

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Please refer to: http://nhri.ohchr.org/EN/Themes/BusinessHR/Pages/Home.aspx/(last visited in July 2015). The European Union – in collaboration with the Shift Project and the Institute for Business and Human Rights – has issued three sector-specific guides in order to ‘translate’ the provisions contained in the UNGPs for the selected sectors. In particular, the three documents are related to the ICT (information and communication technologies) and oil and gas sectors and to employment and recruitment agencies. Because the UNGPs are directed to all enterprises, including small and medium, the latter also have to adopt HR due diligence, taking into account the different business dimensions, activities and fi nancial resources. Available at: http://business-humanrights.org/media/documents/foundations-ungps-nap-italy. pdf(last visited in July 2015).

Intersentia

State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

Foundations of the Italian Action Plan on the United Nations Guiding Principles on Business and Human Rights’. This document contains the state-of-the-art of the Italian legislation, limited just to the First and Third Pillars of the UNGPs, without making effective provision for the future actions to be implemented. As is demonstrated by the great variety of sectors covered, the draft Italian Action Plan derives from a joint effort by a number of Ministries:25 regarding the State duty to protect, it recalls the already listed policies implemented in the most relevant sectors (agriculture, environment and sustainable development, labour, foreign direct investment and export credit, public procurement, freedom of religion, and training initiatives for public officials), as well as for the Third Pillar (regulations in force referring to access to judicial and non-judicial remedies). Since the second half of 2012, all the institutions, led by the Ministry of Foreign Affairs and International Cooperation, have participated in the first phase of the drafting process, which concerns collecting the contributions of all the bodies involved and making proposals for future development. In the introduction to the document the fundamental priorities of Italian foreign policy in terms of HR are recalled, such as (i) the campaign for the abolition of the death penalty; (ii) the protection of freedom of religion and belief; (iii) children (involved in armed conflict) and women’s rights (fighting against practices such as female genital mutilation and precocious or forced marriage); and (iv) education in HR. To these aspects has recently been added implementation of the UNGPs, together with a focus on HR in business sector, as well as respect for the environment and for international labour standards. According to the position expressed by the Italian Government, business and HR has been included in the foreign political agenda, as demonstrated by the publication of this first draft of the NAP and the implementation of a number of Action Plans in recent years related to the main aspects of HR protection: violence against women, racism, the situation of Roma and other traveller communities, and the prevention of discrimination based on sexual orientation. Furthermore, the NAP’s introduction contains the expected future commitment of the Government in this field, notably the inclusion of BHR in relations with international and European institutions and with third countries, participation in and support of multistakeholder initiatives, and monitoring the effective functioning of grievance mechanisms. As this is the only available document and a first sample of the Italian Government’s engagement in BHR, the Italian Inter-ministerial Committee for Human Rights (Comitato Interministeriale per i Diritti Umani – CIDU) and the Italian Ministry of Foreign Affairs and International Cooperation are currently committed to releasing an updated version of the NAP, through the organization of a 25

Namely: the Ministries of Economic Development, of Labour, of Environment, of Agriculture, of Infrastructure, of Finance and Economy, and of Justice for the third pillar. The involvement of the Ministries of both Economic Development and Labour was due to the necessity to include also some CSO representatives at the national level and, concerning the role of multinational enterprises, the members of the OECD National Contact Point.

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series of consultations of both an Inter-ministerial Steering Group and an Expert Group composed of NGOs, independent experts and academics. At the time of writing (July 2015), the NAP is not yet accessible, but some information is already available, namely that (a) the document will be structured according to the UN Guidance on NAPs; (b) all three Pillars will be taken into consideration; and (c) the NAP will be aimed at implementing the UNGPs, as well as the OECD Guidelines for Multinational Enterprises. Outside the European territory, the United States of America has not really elaborated a NAP on business and HR, but the US commitment in this field has been demonstrated both by the publication on the State Department’s website of a Toolkit26 summarizing the US approach and by President Obama’s announcement in September 2014 of the development of a NAP for promoting responsible business conduct. The Toolkit is based on the US Government’s commitment to providing support and training for respecting the HR of all people, especially in the business sector, as demonstrated by Secretary of State John Kerry’s speech in April 2013, reported in the introduction to the Toolkit. The scope of the document is to support the interests of US companies operating abroad and to enhance the effectiveness of US actions in the international institutions concerned. Furthermore, it explains how the US Government addresses business and HR, by providing examples of relevant regulations and policies and outlining what US companies should know about respecting HR throughout their global operations. According to the Obama Administration, indeed, business activities have an impact on all the four main areas of interest of US foreign policy, namely national and international security, an open international economic system, respect for fundamental values and the promotion of peace through stronger global cooperation. Since the announcement by President Obama, the US Government has organised a series of open dialogues with involved stakeholders, including businesses and CSOs, to discuss the NAP’s content and process. Furthermore, in December 2014 the US Government held the first of four announced public consultations to develop a US NAP and a related website promoted by the International Accountability Roundtable (ICAR) has also been made available.27 Finally, ICAR launched its Shadow National Baseline Assessment (NBA) – and several recommendations on NAP content – for Pillar I in March 2015 and for Pillar III in June 2015.28 The US Government has also received a number of relevant recommendations from other NGOs, US business associations and other international and national stakeholders.

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United States Department of State, Bureau of Democracy, Human Rights, and Labour, ‘US Government Approach on Business and Human Rights’ (2013). Please refer to: http://nationalactionplan.us/(last visited in July 2015). The documents are available at: http://accountabilityroundtable.org/analysis/launch-of-icarsshadow-u-s-national-baseline-assessment-pillar-1/; http://icar.ngo/analysis/launch-of-icars-shadowu-s-national-baseline-assessment-pillar-iii/(last visited in July 2015).

Intersentia

State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

6.

ADOPTING THE EXISTING TOOLKITS AND CRITERIA: A COMPARATIVE ANALYSIS

Drawing on the analysis conducted in the three case studies and the information gathered, in the last section of the paper the content and the processes that have led or are leading to the elaboration of National Action Plans will be assessed in order to carry out a comparative analysis and assessment of the Italian, UK and US approaches. The study will employ the already mentioned methodological instruments: the UN Guidance on NAPs, the NAP Checklist contained in Annex 5 of the ICAR-DIHR Toolkit and the de Felice-Graf criteria. In particular, for analysing the UK NAP the ICAR and European Coalition for Corporate Justice Report29 (November 2014) will also be considered. The report indeed, provides a structured assessment of the Danish, Dutch, Finnish and UK NAPs, utilizing the aforementioned ICAR-DIHR Toolkit. Similarly, the available Italian documents will be analysed according to the methodology provided by the three selected frameworks, firstly taking into consideration the National Baseline Assessment, then the draft NAP and the Monitoring and Review mechanisms. Finally, to the extent possible the US consultation/drafting process will be evaluated. According to the ICAR-DIHR Toolkit, some interesting remarks on the UK NAP could be made, both about the draft ing and consultation processes and the content. On the processes, the first point to be underlined is the lack of a national baseline assessment, which, together with a missing mapping of stakeholders, has led to the exclusion of rights holders and impacted communities from the consultations. Furthermore, inadequate information and capacity-building have been provided to the involved stakeholders, nor was a draft document published after the consultations and sent to all the stakeholders; in this sense, a general lack of transparency during the entire process has to be recognised. Regarding the NAP content, some strengths and some weaknesses could be listed. Among the strengths, the NAP contains some references on how it will act in relation to international and regional organizations and standards, and on how to address some specific sectors and actors, such as investment agreements and UK embassies. The main weaknesses are related to (i) the lack of timelines for implementation and provisions for vulnerable groups; (ii) no clear definition of what governmental body will be in charge of implementing the planned actions; (iii) the content that mainly focuses on the Second Pillar of the UNGPs. In general, the ICAR-DIHR Toolkit concludes that the UK NAP could be significantly improved in its updated version expected by the end of 2015, as committed by the UK Government. The UN Guidance also indicates that a gap analysis/baseline assessment and a mapping of stakeholders are missing, as well as the provision of a government body in charge of NAP implementation and monitoring. 29

The document is available at: http://icar.ngo/analysis/napsassessments/(last visited in March 2015).

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More specifically, following the de Felice-Graf criteria with reference to the NAP process, other interesting aspects could be noted. They include the following: (i)

Notwithstanding the absence of a baseline assessment, the UK Government pledged to conduct a gap analysis in the future, probably in the updated version of the NAP. (ii) The only Government agency involved is the HR Unit of the Foreign and Commonwealth Office, while the other business-related departments had a limited role in the drafting process. (iii) Regarding multi-stakeholder participation, during the pre-draft ing phase a series of meetings with different stakeholders was organized to collect inputs and identify a common basis, while in the post-drafting the related documents were not available before their publication. Moreover, no information about the postponement of the NAP publication has been released and the minutes of all meetings were circulated only under confidentiality requirements. (iv) Notwithstanding the Government’s commitment to updating the NAP and the launch of the open consultations, it is still unclear how many stakeholders will participate in the process and which governmental departments will be involved. In addition, the four criteria in relation to the UK NAP’s content could also be applied. (v) As far as the commitment of firms is concerned, according to the UK legal system human rights issues apply only within the State’s jurisdiction and thus the regulation of overseas business conduct continues to be a policy matter. Further, NAP adoption has been justified as a response to a business request and has not been linked to UK companies’ commitment to respect HR. (vi) One of the main weaknesses of the NAP structure is that it does not follow the UNGPs, as required, and it only considers non-State-based judicial mechanisms in relation to Pillar III. About the content of the NAP, there is an imbalance between voluntary and mandatory measures (in Ruggie’s wording, the smart mix) and it does not contain clear provisions on a cross-department pledge to BHR; (vii) As already underlined by the ICAR-DIHR Toolkit, the NAP does not include any provisions on timelines or deadlines; (viii) Whilst the NAP provides some interesting and innovative recommendations on HR in the areas of procurement, purchasing of goods and services, and instructions for civil servants and diplomats, it fails to envisage comprehensive training on understanding the UNGPs for all public officers involved.

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State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

More recently, the UK NAP has also been evaluated in a paper published by a group of BHR researchers and experts, based on the ICAR-DIHR’s six areas of action.30 Besides the already mentioned lack of a baseline assessment, of summary reports on stakeholder meetings and of transparency during the draft ing/consultation processes, the paper identifies other gaps, such as (a) the Foreign Commonwealth Office being the lead authority, as in the majority of the other NAPs the domestic political dimension is missing; (b) the failure to provide a budget. However, according to the authors a form of multi-stakeholder consultation has been carried out, although the business approach to HR remains voluntary. The second case study that will be analysed is the Italian one: the three methodological instruments will be applied to the Italian document titled ‘The Foundations of the Italian Action Plan on the United Nations Guiding Principles on Business and Human Rights’ (available in English since March 2014) and to the document considered to be the national baseline assessment. Unlike the UK, indeed, in November 2013 the Italian Government released a National Baseline Assessment 31 as a fi rst step in the Italian commitment to the business and human rights agenda. As stated above, the document is the result of a joint effort by the Italian Ministry of Labour and Social Policy and the Italian OECD National Contact Point and contains a detailed overview of the state-of-the-art of the Italian regulatory framework related to the most impacted human rights, the related actions to be taken and some useful suggestions to the involved stakeholders. Nevertheless, the Italian Ministry of Foreign Affairs and International Cooperation – the lead authority for the draft ing of the NAP on BHR – has decided to elaborate ex novo a fi rst draft of the Italian NAP. However, for the purpose of this study the National Baseline Assessment includes all the standards requested by the ICAR-DIHR Checklist, since it was adequately disseminated and published online and was produced by an appropriate body (a group of academic researchers at an Italian university). The only constraint that can be identified is the limited involvement of stakeholders during the development of the NBA. By applying the UN Guidance’s recommendations on a baseline assessment, 32 the Italian document does not appear exhaustive, for the above mentioned reasons. More specifically, only the fi rst four criteria developed by de Felice-Graf could be applied to the Italian NAP development 30

31 32

C. Methven O’Brien, A. Mehra, S. Blackwell and C. Bloch Poulsen-Hansen, National Action Plans: Evaluating Current Status and Charting Future Prospects for an Important New Governance Tool on Business and Human Rights, (2015). Electronic copy available at: http://ssrn.com/ abstract=2627568. Supra note 25, p.16. The three recommendations contained in Phase 2 of the UN Guidance are: 1) get a sound understanding of adverse corporate human rights impacts; 2) identify gaps in State and business implementation of the UNGPs; and 3) consult interested stakeholders on actions to address gaps and identify priority areas. The Guidance also required that the ICAR-DIHR NBA Template provided by their Toolkit be followed.

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process. First of all, the Italian baseline study is limited to the role of the State (it does not consider Pillar II), it is based only on desk research and domestic interviews conducted, and no information about the draft ing/consultation processes is available. Moreover, in this case other constraints in the NAP development process can also be identified: (i)

The leading authorities were limited to a few ministries (the Ministry of Foreign Affairs and International Cooperation – Directorate General for Globalization and the Interministerial Committee for Human Rights – Ministry of Labour and Social Policy, Ministry of Economic Development). (ii) Only the Global Compact Network was invited in the pre-drafting phase and there was no direct engagement with rights-holders apart from several Italian HR NGOs. Instead, for the drafting of the updated NAP version a Steering Committee composed of experts (lawyers, academics, NGO representatives, etc.) has been established. (iii) The current NAP does not provide for monitoring or updating mechanisms. As already mentioned above, the Italian Ministry of Foreign Affairs and International Cooperation and the Italian Interministerial Committee for Human Rights are conducting a consultation/drafting process with all the Ministries involved and a number of Italian NGOs, experts and business representatives, in order to discuss together the content of the updated version of the NAP. Consequently, the only comprehensive analysis on the Italian NAP that can be carried out at presentis of the content of the first draft, based on the ICAR-DIHR Checklist: (i)

(ii) (iii) (iv)

(v)

The Italian Government’s commitment in drafting and releasing a NAP is demonstrated by an increasing interest and action in the fields of CSR and BHR in recent years, for instance through the adoption of a series of NAPs related to CSR, vulnerable groups and women’s rights, non-discrimination, etc. The Italian NAP contains references to the relevant international and regional standards and to all the thematic sectors and the most impacted human rights. The planned measures and actions for the implementation of the NAP are missing, as well as consideration of vulnerable and at-risk stakeholders. Unlike its UK equivalent, the Italian NAP is completely focused on the First and Third Pillars, lacking any provisions concerning the role and accountability of corporations in this field. There is no precise timeline for NAP implementation and no information about the definition of appropriate resourcing.

According to the ICAR-DIHR Toolkit, in the consultation/drafting process of the first draft NAP the main weaknesses were also related to the absence of effective involvement of all the relevant stakeholders, the associated lack of transparency in

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State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans

this process and of a monitoring mechanism. Given the Italian Government’s stated intention to release an updated version of the NAP by the end of 2015, the importance of including these aspects in the new NAP is worth mentioning. However, applying the UN Guidance and its remarks contained in Phase 3 (drafting of an initial NAP)on the current drafting/consultation process, so far the Italian Government has followed the recommended steps, such as the initial drafting of the NAP, the multi-stakeholder consultation and the launch of the final version, planned by the end of 2015.In conclusion, considering the features requested by the applicable methodological instruments it is difficult to define the Italian document as a National Action Plan. Nevertheless, given the information available on the updated version expected by the end of this year – such as the renewed NAP structure based on all three Pillars – it could become a further opportunity for the Italian Government to reaffirm its commitment to implementation of the UNGPs. Looking at the laggards, the last case considered is the US. Because of the limited information and data available, the methodological instruments could be only applied in part. Following the ICAR-DIHR Checklist (1st criterion), a clear Government commitment was stated by President Obama during his speech in September 2014.In addition, a whole-of-government approach was carried out, involving many US agencies – led by the White House – and a precise timeline about the open consultations with stakeholders was provided. According to the UN Guidance, the US is approaching the first phase of NAP development, namely the ‘initiation’. In this regard, the US Government has followed three out of the four recommended steps: a formal State commitment, cross-departmental collaboration and a designated leadership, and an engagement format with non-governmental stakeholders. The allocation of adequate resources and the publication of a work plan are still missing, although the US Department of State has released a lot of information about the upcoming phases of the NAP process. Finally, referring to the de Felice-Graf criteria, only the first three could be applied. Although the US NBA has not yet been published, ICAR has conducted a shadow baseline assessment of UNGPs implementation (for Pillars I and III). However, the US Government – as stated in February 2015 – has decided to approach BHR in a broader manner than that provided by the existing NBA models (1st criterion). Given the inclusive approach of all the relevant governmental areas (2nd criterion), the US has established four open dialogues with different interested stakeholders since December 2014 – and until April 2015 – such as US Government agencies, business associations and individual companies, labour unions, CSOs and NGOs, academia, international organizations and affected communities (also through webinars). To date, the US Government has conducted a transparent pre-drafting process, informing all the stakeholders of the various steps carried out (3rd criterion). Considering the analysis carried out in applying the three selected instruments, the three case studies surveyed contain some strong and weak aspects and none of them completely matches the existing relevant recommendations and provisions.

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Given a cross-assessment of the three case studies, some positive elements can be pointed out, such as the promotion of multi-stakeholder participation during the drafting/consultation processes and the establishment of a lead authority within the governmental entities. However, the most significant weaknesses are: (i) with reference to the Italian and UK cases, the lack of transparency during the NAP and/or NBA development processes, as well as the lack of information about budget and timelines; (ii) the failure to provide a National Baseline Assessment, except in the Italian case, although that document was not adequately considered in the preparation of the first draft of the NAP; (iii) the establishment of an adequate monitoring mechanism for follow-ups and updates. Finally, in the Italian and UK cases both the NAPs were released before the publication of the methodological instruments, while the US commitment in this field is more recent and the US Government could easily follow the suggested measures and recommendations in the future. Despite this temporal mismatching, all three countries will have the opportunity to release an updated or final version of their NAPs, following the roadmap proposed in particular by the UN Guidance and the ICAR-DIHR Toolkit and thus addressing the existing gaps. Certainly, considering all information and NAPs available, the analysis provided cannot be considered a final and conclusive assessment and the identification of what is good practice will be probably possible only when the selected countries release the updated and final versions of their NAPs.

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Intersentia