Release of MSI Evaluation Tool and Essential Elements of MSI Design

Today, MSI Integrity is proud to release the MSI Evaluation Tool in partnership with the International Human Rights Clinic (IHRC) at Harvard Law School. Alongside the Tool, MSI Integrity is also releasing a summary companion document, The Essential Elements of MSI Design.

The MSI Evaluation Tool was developed collaboratively by MSI Integrity and the IHRC through a five-year iterative process of extensive research, practical pilot-testing, and global consultation with the public and experts on MSIs. It provides a framework to evaluate multi-stakeholder initiatives (MSIs) and the effectiveness of their institutional design, structure, and operational procedures.

The Essential Elements of MSI Design is a collated summary of the most essential attributes for global standard-setting MSIs identified in the MSI Evaluation Tool, and is intended to enable a quick, desk-based analysis of an initiative’s broad strengths and weaknesses.

The MSI Evaluation Tool

MSIs have become one of the most popular global instruments for addressing business and human rights issues, yet there is little research or understanding into whether these initiatives have been successful or effective as rights protection tools. MSI Integrity and the IHRC sought to fill this knowledge gap by developing a tool that can be used by both external stakeholders and MSIs themselves to evaluate the effectiveness of MSIs. The MSI Evaluation Tool sets out the critical considerations and establishes a methodology for those seeking to thoroughly evaluate an MSI. The Tool and its evaluation methodology draw together current research and practical understandings about MSI structures and processes, recognizing that MSI design features — such as good governance and robust accountability mechanisms — influence an initiative’s effectiveness and potential to achieve positive impacts. By systematically and comprehensively examining an MSI’s institutional framework, the Tool enables individuals, organizations, and MSIs themselves to better understand and evaluate the capacity of an MSI to effectively address the issues that prompted its creation.

The Tool is divided into seven sections, which reflect the seven core areas of MSI design that have been linked to effectiveness:

  1. Scope and Mandate
  2. Standards
  3. Internal Governance
  4. Implementation
  5. Development and Review of the MSI
  6. Affected Community Involvement
  7. Transparency and Accessibility

Each core area is made up of a comprehensive set of indicators related to the structures and processes that influence an MSI’s effectiveness. Users of the Tool can assess if the initiative includes these indicators by following a five-step evaluation methodology to consider whether the structures and frameworks of an initiative have been designed in a way that is capable of leading to positive outcomes and impacts.

In 2013, MSI Integrity conducted a global consultation on a draft of the Tool. More than 100 individuals and organizations provided written comments or participated in one of ten regional meetings in Africa, Asia, Europe, Oceania, North America, and South America. The final version released today builds off the Draft MSI Evaluation Tool (2013) by incorporating feedback related to indicator criteria and clarifying assessment procedures. A summary of each comment received during the 2013 Global Consultation process and the resulting modifications is available here.

The Essential Elements of MSI Design

The MSI Evaluation Tool is a comprehensive framework for evaluating MSIs and the effectiveness of their institutional design, structure, and operational procedures. However, conducting a rigorous and comprehensive evaluation of an initiative is resource-intensive. For individuals or organizations with limited resources, or an interest in developing a basic understanding of the strengths and weaknesses of a given MSI, The Essential Elements of MSI Design is intended as a starting point for analysis and discussion.

The Essential Elements of MSI Design contains the most critical indicators of MSI effectiveness identified in the MSI Evaluation Tool, referred to as the “Essential Elements.” Although it does not include other indicators categorized as “Good” or “Innovative” practice for MSIs (which are included in the MSI Evaluation Tool), it provides a summary that could help guide a future evaluation of an MSI’s design and could inform the development of new MSIs or revisions to existing ones.

Broader Applications and Future Updates

The MSI Evaluation Tool was developed primarily to evaluate MSIs that were formed in response to human rights concerns and which have reacted to these problems by setting or enforcing standards for member companies and/or governments. However, with some common sense adaptation and modification, the Tool and the Essential Elements of MSI Design can be used for a variety of different purposes and applied beyond standard-setting MSIs with a focus on human rights. For example, they could be used to evaluate MSIs that address environmental or governance issues, or initiatives that serve as collective action networks or learning forums rather than as standard-setting institutions. These documents can also be applied to other accountability or private governance approaches, such as industry codes of conduct or private certification schemes. We encourage such actors to contact MSI Integrity to discuss whether these tools are suitable for a given initiative and, if so, what modifications should be made.

As knowledge and research into MSI effectiveness deepens over time, we anticipate that the Tool will be updated and modified to reflect new understandings. We welcome all interested users of these documents to contact MSI Integrity to share their findings or to seek our input on how to best evaluate an initiative. We also welcome any suggestions, questions, or future applications of the Tool to improve it over time.

Download the MSI Evaluation Tool (2017) here.

Download the Essential Elements of MSI Design here.

Report: Workshop on Addressing Gaps in EITI Accountability and Grievance Mechanisms

Although the rules of the Extractive Industries Transparency Initiative (EITI) include safeguards to protect civil society’s meaningful participation in the initiative, in many EITI-implementing countries, natural resource governance activists continue to risk persecution, intimidation, and harassment for their EITI-related work, without recourse to trustworthy mechanisms to report these breaches.

The report published today, EITI Accountability and Grievance Mechanisms: Perspectives from Civil Society and Natural Resource Governance Advocates details discussions from an August 2016 workshop on accountability gaps at EITI that brought together leading human rights and accountability mechanism experts, civil society representatives from the EITI International Board, and natural resource governance advocates from EITI countries. While the workshop focused on risks facing civil society, participants intended for the discussion to serve as a starting point for a broader dialogue with other EITI constituents who share concerns about accountability.

At the workshop, civil society advocates with direct experience of implementing EITI in their respective countries identified gaps in EITI’s accountability mechanisms based on first-hand experience. Participants then discussed examples of accountability mechanisms used in other initiatives and institutions, including the International Finance Corporation Compliance Advisor/Ombudsman, the Roundtable on Sustainable Palm Oil complaints system, the Organisation for Economic Cooperation and Development complaints mechanism, the World Bank Inspection Panel, the Asian Development Bank Accountability Mechanism, and the Fair Labor Association Third Party Complaint Process.

The workshop report highlights subsequent discussions, which culminated in design sessions to develop proposals for how EITI could close accountability gaps. Over the course of the two-day workshop, participants reported that:

  • Threats to individuals and civic space are not being comprehensively detected by the EITI validation system, while the initiative lacks trusted processes for raising civic space-related complaints;
  • EITI Board committees, such as the Rapid Response Committee, are underutilized and largely unknown outside of the EITI Board, and are not seen as effective tools for addressing either time-sensitive breaches of the EITI Standard or threats to civil society;
  • Any new or reformed grievance or accountability mechanism should be designed to ensure that complainants are not exposed to further risk, while enabling and empowering stakeholders to raise concerns with EITI; and
  • Any new or reformed processes must draw on good practice and lessons learned from other initiatives, which are presented in summarized form in the report.

Notably, some participants favored modifying existing EITI processes such as the Rapid Response Committee and improving the validation process to address accountability gaps, while others in the group believed these processes, by themselves, could not be sufficient to address harms experienced by individuals. As a result of these workshop discussions, participants agreed upon three mutually-reinforcing proposals for improving EITI’s accountability mechanisms:

  • Prevention Mechanism – Establishing a system of national-level civil society monitors who report to a new Working Group on Civil Society Protection. The working group would proactively monitor the condition of civil society in EITI-implementing countries and respond to or provide feedback on in-country developments that threaten civic space and undermine the EITI Civil Society Protocol, which is part of the EITI Standard.
  • Reforming Existing Oversight and Outreach Mechanisms – Strengthening existing EITI bodies and processes with a focus on updating the member application and validation processes, as well as the Rapid Response Committee, to better address civil society-specific needs and provide civil society protections.
  • Remediation Mechanism – Developing a non-judicial complaints-filing process designed to address stakeholder grievances related to egregious breaches of the Civil Society Protocol such as rights violations resulting from natural resource governance advocacy.

The workshop was facilitated by Shape the Law, with assistance from MSI Integrity and financial support from the Open Society Foundations.

DOWNLOAD THE REPORT

 

The New Regulators? MSI Integrity and Duke Report on the Global Landscape of Standard-Setting MSIs

Today, MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics published a summary report on our new database of standard-setting multi-stakeholder initiatives (MSIs). In the report, The New Regulators? Assessing the Landscape of Multi-Stakeholder Initiatives, we analyze 45 MSIs that set voluntary standards for business and government conduct on a range of human rights and environmental issues.

The report and database are intended as introductory resources on MSIs for MSI participants, civil society organizations, community groups, companies, researchers, and the general public. With a few exceptions, most MSIs are not household names. Nevertheless, they have profound global reach. MSIs operate in over 170 countries on six continents, and set standards for over 9,000 companies with combined annual revenues of over $5.4 trillion. Moreover, MSIs are ambitious: they have been created to address some of the most intractable problems linked to the global economic system, ranging from child labor to deforestation and online privacy.

But while MSIs have gained prominence as a new category of regulatory institution, our preliminary findings suggest that many MSIs lack one or more of the basic institutional elements necessary to effectively set and enforce their own standards. This raises serious questions about whether MSIs are collectively up to the task of addressing the challenges they face.

As MSIs have only come into existence during the past few decades, the structure and impact of these “new regulators” remain poorly understood. We begin by looking at the growth and industry spread of these MSIs, finding that most were formed in the late-1990s and 2000s, with only a handful of new standard-setting MSIs launched since 2011. Most of these MSIs focus on setting standards for specific industries, with over 90% clustered in three sectors of the economy (consumer goods; agriculture, forestry, and fishing; and mining and energy).

Next, we assess how MSIs are governed and the extent to which they include different stakeholder groups. Our analysis reveals the troubling finding that most standard-setting MSIs fail to meaningfully engage the workers and communities that are most affected by MSI standards: Only 14% of the MSIs include affected populations in their main governing bodies, while only 49% of MSIs involve affected populations at all.

Lastly, we examine whether MSIs have the basic operational structures needed to set and enforce standards of conduct for their corporate and government members. These include systems to monitor members for compliance with standards, sanctioning mechanisms to address non-compliance, and complaints mechanisms to enable individuals or communities to report environmental or human rights abuses that violate initiative standards. Distressingly, 20% of initiatives lack any power to sanction non-compliant members, and 60% do not have an external complaints or grievance mechanism.

Because the MSI Database includes only limited information about each MSI and its institutional design, the report analyzes MSIs as they exist on paper, rather than as they operate in practice, so our findings are necessarily preliminary. For example, the database and report look at whether an MSI has a complaints mechanism, but not at whether the mechanism is well-designed, accessible, effective, or even implemented. Nevertheless, the report raises serious questions about what role MSIs serve if many of them lack the basic institutional elements necessary to be effective.

We hope that the report and database contribute to discussion and future research on the role of MSIs in addressing critical human rights, environmental, and governance challenges. We also look forward to feedback, suggestions, and other perspectives on the database and report findings and encourage interested stakeholders to contact us at info@msi-integrity.org.

MSI Database: A Response to Reflections from the Center for Business and Human Rights at the NYU Stern School of Business

In June, MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, with pro bono support from the law firm Miller & Chevalier, launched the MSI Database, a searchable online resource for information about multi-stakeholder initiatives (MSIs). The database catalogues the design characteristics of 45 transnational standard-setting MSIs in the field of business and human rights, including whether initiatives offer an external complaints mechanism, require public reporting of member compliance with initiative standards, or have the ability to sanction members for non-compliance.

We created the database as a resource for MSI participants, researchers, and interested stakeholders, and remain very open to feedback on how it could be improved or expanded in the future. We were encouraged to see a thoughtful blog post on the database published by the Center for Business and Human Rights at the NYU Stern School of Business on July 5th. Given the Center’s deep experience engaging with MSI staff and other MSI stakeholders on human rights issues, we are encouraged that they have taken the time to share feedback. We would be excited to work with interested and engaged stakeholders like the Center to further develop the database in the future.

The blog post describes the database as a “commendable pursuit that brings greater visibility to an oversight model that is increasingly common but poorly understood,” and raises a number of important points. We discuss some of these below and note where the project’s FAQ page and methodology document address a particular issue in greater detail.

For one, the post from Stern identifies ways in which the database’s visual presentation could potentially be misinterpreted – such as if a user inferred that the more design features an MSI exhibits, the greater its efficacy, or that the presence of each of the seven design features is equally important. We agree that the seven design features included in the database are unlikely to be equally important. And as we note in the FAQ and methodology, the database does not evaluate the effectiveness of MSIs, nor is it intended to encourage a check-list approach to design features. That said, our hypothesis is that the design features catalogued are necessary but hardly sufficient for an MSI to be effective. The significance of a particular MSI design feature for an MSI’s efficacy is ultimately determined by a range of factors, including whether and how the features are implemented – something the database does not analyze. As such, we do not assign weighted scores to different design features in part because their importance for an initiative’s effectiveness likely varies.

The blog post goes on to observe that the database categories are presented in a simplified format. For this initial release, we chose these categories due to capacity and data availability constraints. But we are very interested in additional feedback from researchers, MSIs, and MSI stakeholders on how to potentially refine and/or expand the database to better support MSI researchers and practitioners in the future.

The post’s overarching insight that “only a handful of MSIs have the necessary organizational design and mechanisms in place to define and enforce standards” foreshadows one of the conclusions of our forthcoming report assessing our own findings from the database: The New Regulators? Assessing the Landscape of Multi-Stakeholder Initiatives. In the report, we discuss the troubling finding that many MSIs lack the mechanisms needed to successfully uphold their own standards – such as external complaints mechanisms, robust reporting and sanctioning processes, and tools to include the voices of the communities a particular MSI intends to benefit or protect.

In spite of the constraints discussed above and others mentioned in the FAQ, we hope the database provides a useful contribution, particularly as a resource for further inquiry and debate on MSIs. As we discuss in our forthcoming report, we think that the database also points to a need for serious, critical reflection on how researchers, MSI participants, and other stakeholders conceptualize and engage with MSIs.

We welcome additional public reflections such as the Stern blog post. Interested MSI researchers, practitioners, and stakeholders are also invited to send us feedback directly at info@msi-integrity.org.

Introducing the MSI Database: An Overview of the Global Landscape of Standard-Setting Multi-Stakeholder Initiatives

Today, MSI Integrity, the Duke Human Rights Center at the Kenan Institute for Ethics, and Miller & Chevalier launched the MSI Database, a searchable online resource for information about multi-stakeholder initiatives (MSIs). Available at www.msi-database.org, the website catalogues information about the scope, governance, and operations of transnational standard-setting MSIs.

Since the 1990s, MSIs have emerged as prominent global governance institutions, seeking to address some of the most challenging issues in the global economy. The 45 MSIs included in the database operate across global industries and set standards for companies and governments on a range of human rights, governance, and environmental issues ranging from forced labor to government corruption and forest conservation. These MSIs operate in over 170 countries on six continents, certifying the production of clothing and other manufactured goods, monitoring commercial fishing practices, setting sustainability standards for cocoa and cotton production, and more.

The database is intended as an open-access resource for learning about these initiatives. It catalogues publicly available information about the mission, governance structures and operations of transnational standard-setting MSIs, including the following data points:

For example, the database entry for Better Cotton Initiative includes the industry group the MSI operates in, stakeholder representation on its governing body, its mission, launch date, and key institutional design characteristics:

This online resource is intended to support continued debate and discussion about the voluntary governance of the private sector and encourage further research and dialogue about the role of MSIs. Accordingly, the MSI Database does not evaluate, rate, or rank MSIs, and is instead envisioned as an introduction to the global landscape of MSIs and how they describe themselves.

As the MSI Database currently provides a condensed overview of each MSI and its characteristics, we encourage MSI participants, researchers, and interested stakeholders from industry, government, and civil society to contact us with feedback about how to improve or expand this database in the future – whether by adding indicators, including new MSIs, or otherwise.

Next month, MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics will also be releasing a report summarizing initial findings from the MSI Database. The report, The New Regulators? Assessing the Landscape of Multi-Stakeholder Initiatives, highlights key findings from the database, noting the presence of transnational standard-setting MSIs in various industries, patterns in MSI institutional governance, and analysis of how these MSIs set and monitor compliance with their standards. It also identifies potential questions raised by these findings that could be a starting point for future research.

We hope the MSI Database serves as a useful resource for practitioners and researchers and welcome feedback, questions, and observations at info@msi-integrity.org.

Research Workshop on Multi-Stakeholder Initiatives at Occidental College: Introducing the Global MSI Research Network

Last month, the John Parke Young Initiative on the Global Economy at Occidental College, the Harvard Law School Human Rights Program, and MSI Integrity hosted academics and practitioners for a research workshop on multi-stakeholder initiatives (MSIs). Through research presentations and interactive discussions, participants reflected on what we know—and still don’t know—about the political dynamics, effectiveness, and impact of MSIs two decades after their emergence in the global governance field. The event also launched a new Global Research Network on MSIs to foster discussion and collaboration among academics, applied researchers, and practitioners on the institutional design, governance, and effectiveness challenges facing MSIs.

Participants in the two-day workshop included researchers and current and past leaders of MSIs from thirteen countries on five continents. A central goal of the workshop was to bring practitioners and researchers into dialogue about key unresolved questions about the role of MSIs in addressing global human rights, environmental, and governance challenges.

Highlights from the workshop included:

  • Perspectives from current and former leaders of MSIs – The opening panel traced the emergence of MSIs and other “Global Action Networks” following the end of the Cold War. Panelists, who included current and former heads of the Global Initiative for Fiscal Transparency, ICANN, and the Global Reporting Initiative also reflected on the challenges and questions they have faced as leaders of MSIs.
  • Critical reflection on MSI effectiveness – Multiple panel discussions addressed the promise, impact, and shortcomings of initiatives ranging from the International Code of Conduct Association and the Voluntary Principles on Security and Human Rights to the Fair Food Program and Accord on Fire and Building Safety in Bangladesh. As these and other MSIs have become an important part of the global governance conversation, participants discussed how best to measure their effectiveness and impact in the context of business and human rights and sustainable development.
  • Analysis of power dynamics in MSIs – Discussants grappled with the question of how MSI participants succeed—and sometimes fail—to work together effectively on issues that are often highly contentious. These power dynamics have proven to be particularly acute across the global North-South divide and between stakeholder groups within MSIs—such as industry, government, civil society, and industry-affected populations.

MSI Integrity was excited to work with participants and the workshop hosts at Occidental College’s John Parke Young Initiative. We plan to continue and broaden the discussions on MSIs that began at the workshop later this year and into 2018. In collaboration with workshop participants and our global steering committee, we will be working to expand the Global Research Network on MSIs to support continued engagement between MSI practitioners and researchers across research disciplines.

Interested researchers and MSI stakeholders who would like to stay updated about future events and other research network news are invited to contact us at info@msi-integrity.org to join the network’s email list.

 

Canary in the Coal Mine: Trump Administration Undermines a Global Anti-Corruption Initiative

This blog is designed to provoke thoughts and encourage debate about the function, effectiveness and role of MSIs. The views expressed here are the personal views of the author and are not the institutional positions or views of MSI Integrity. We welcome critiques and responses on the ideas below. If you would like to post a long-form response, or contribute your own piece, please contact us at: info@msi-integrity.org

The following was published on the online forum, Just Security, on April 13, 2017

Those nervously watching to see whether the United States will uphold its existing international commitments to protect human rights and address corruption have had their eyes trained on the positions typically in charge in this arena: U.S. Ambassador to the UN Nikki Haley, Secretary of State Rex Tillerson, and President Donald Trump himself (or, at least, his twitter account). But some of the most worrying signals are emanating largely unnoticed from staff at the Department of the Interior (DoI). Recent actions by DoI officials have caused speculation that the U.S. may soon be leaving a major global anti-corruption initiative, the Extractive Industries Transparency Initiative (EITI). This is just one example of dozens of little-known international “multi-stakeholder initiatives” that now appear to be under threat of being rolled back or neglected. These initiatives, most of which set standards for voluntarily participating countries or companies, have won favor amongst those wary of negotiating treaties or establishing binding corporate regulation to address corruption, insecurity or human rights. If the Trump administration continues taking steps to undermine these initiatives it will erode an already weak system of global oversight into corporate conduct and the flow of illicit dollars, thereby increasing the overall risk of human rights violations, violence and instability.

The U.S. joined EITI in 2011, a decade after it was started by then-Prime Minister Tony Blair in response to pressure from NGOs who were showing links between revenue generated by mining, oil drilling and similar extractive industries, and corruption, conflict and human rights abuses – a phenomenon that is now known as the “resource curse.” The initiative’s 50-plus member countries, largely from the Global South, have pledged to follow EITI’s requirements, which center on releasing annual reports that disclose payments between oil, gas and mining industries and the government. The cornerstone of the initiative’s operation is that the EITI process must be overseen in each member country by a multi-stakeholder group that includes both “fully, actively and effectively engaged” civil society and industry designees. This transparency is supposed to enable an informed national debate inside member nations that focuses on questions vital to fighting corruption and other ills of the resource curse: Where has all the money gone? Why did the country itself receive so little? How come those funds went directly into the Swiss bank account of that government minister?

Yet new actions taken by the Trump administration threaten the possible unraveling of this 15-year old global initiative in just a few months.

The U.S. released its first and only EITI report in late 2015. While that document contains tidbits of interesting information, it falls short of the transparency requirements set by EITI: The majority of participating American companies refused to voluntarily disclose their federal tax payments, and the report provides no breakdown of payments on a project-by-project basis – such as the money linked to a specific mine or oil field. This project-level reporting ordinarily has the most significant information and is of far greater interest to the public than national aggregates. That key failure was supposed to be remedied by a rule issued under Section 1504 of the Dodd-Frank Act, which required U.S.-listed companies to disclose payments made to both U.S. and foreign governments for the development of oil, gas or minerals. That rule, which was to come into effect next year, would have made great progress in the fight against global corruption by setting a mandatory rule that went even beyond the reach of EITI. Importantly, it would have helped the U.S. pass a scheduled audit by EITI in 2018.

The rule no longer exists. One of the first acts of Congress under the Trump administration was to repeal it, and whether a new rule will be approved is unclear. Anti-corruption activists were still reeling from that blow, when during one of the regular multi-stakeholder meetings held at the Department of the Interior, the microphone was cut off as a civil society representative began to ask questions as to whether the Trump administration was committed to EITI. This was a breach of one of EITI’s key operational principles: the ability for civil society to speak freely within EITI. Soon after, Outlook email invitations to all future EITI meetings were cancelled. Civil society representatives in the multi-stakeholder group scrambled to issue a collective public statement that these actions are tantamount to the U.S. voluntarily halting its own EITI process.

Last week, after an unscheduled meeting of the multi-stakeholder group’s co-chairs was called to clarify the situation, officials denied that a decision to withdraw had been made, although the path for how the group would proceed was unclear. The Department of Interior is in an embarrassing bind: If it does not withdraw from the organization, then the country risks publicly failing the EITI audit, which may ultimately result in it joining a group of suspended countries that includes Azerbaijan, the Central African Republic, Kyrgyzstan, and Yemen. If the U.S. voluntarily withdraws or “pauses” its involvement, it will not only signal that countries like Nigeria and Peru – which recently passed validation – are more transparent in this area, but a host of autocrats in repressive states may feel entitled to follow suit, thereby gutting the power of the 51-member initiative.

A tell-tale sign for dozens of similar initiatives?

EITI is just one of the many different “multi-stakeholder initiatives” (MSIs) that the U.S. government or major U.S. companies have joined over the last two decades. These initiatives, which proliferated in the late 1990s and early 2000s, are premised upon collaborating with civil society (or, far less frequently, with workers or affected communities) to fill the governance gaps that exist where states are unwilling or unable to provide basic rights for their citizens or otherwise uphold laws that regulate corporate behavior. They tend to emerge in response to high-profile campaigning or scandals about a particular industry or issue, although generally receive little public attention once they become operational.

For example, the exposés on the blood diamond trade led to the Kimberley Process, which brings in civil society and companies to certify diamonds as “conflict-free.” The execution Ken Saro-Wiwa and other Nigerian activists who had been vocally opposing the operation of Shell in the Niger Delta contributed to the development of the Voluntary Principles on Security and Human Rights, which provides operational and human rights guidance for extractive companies. The dependence on Blackwater and other private military companies in Afghanistan and Iraq prompted the eventual emergence of the International Code of Conduct for Code for Private Security Service Providers. There are countless other multi-stakeholder initiatives with similar self-explanatory names: the Alliance for Responsible Mining, the Fair Labor Association, the Open Government Partnership, to name just a few.

Given that all of these initiatives rely on the voluntary participation of companies or governments, they risk becoming a flimsy distraction from efforts to develop binding legal human rights obligations for companies. But they are a central part of the U.S.’s long-awaited response to a call from the UN for states to develop policy plans demonstrating how they are ensuring the protection of human rights against business-related harms. One of the few clear commitments made in the U.S.’s oft-criticized plan was a promise to collaborate with stakeholders such as civil society organizations, with the U.S.’s participation in EITI expressly cited as one of a handful of examples of the types of initiatives that the “U.S. government will continue to play a leadership role in.”

The ease with which the Trump administration took actions to undermine its participation and compliance with EITI indicates something deeply troubling may be emerging. That is: The Trump administration is prepared to ignore a centerpiece of the U.S.’s brand new framework aimed at curbing human global rights abuses related to business interests. The fragility of the voluntary patchwork of multi-stakeholder initiatives that was supposed to offer human rights protections and stem illegal transactions that contribute to instability, crime, terrorism and countless other security threats is now apparent, and the worst is likely yet to come.

Voluntary Measures: Overreliance on MSIs in the U.S. National Action Plan on Responsible Business Conduct

This blog is designed to provoke thoughts and encourage debate about the function, effectiveness and role of MSIs. The views expressed here are the personal views of the author and are not the institutional positions or views of MSI Integrity. We welcome critiques and responses on the ideas below. If you would like to post a long-form response, or contribute your own piece, please contact us at: info@msi-integrity.org

On December 17, 2016 the United States Government released its first National Action Plan on Responsible Business Conduct. The United States is the 12th country to publish a national action plan (NAP) in response to encouragement from the United Nations that governments develop such policy strategies outlining state commitments to protect human rights against business-related harms. In a time of considerable uncertainty around the future of corporate regulation in the United States, the NAP has the potential to establish resilient policies for responsible business conduct under the incoming Trump Administration. Unfortunately, it fails to fully realize this potential.

The U.S. NAP provides a useful overview of existing laws, programs, and mechanisms that have been developed to address the adverse human rights impacts of business. However, as noted by several commentators, the NAP does not propose many new commitments. Despite a general absence of substantive new actions, one of the NAP’s ten target outcomes is to “enhance the value of multi-stakeholder initiatives.” Multi-stakeholder initiatives (MSIs) are voluntary collaborations between businesses, civil society and other stakeholders that often set standards around issues relevant to human rights. While it is admirable that the U.S. Government seeks to improve MSIs, it is troubling that voluntary measures have been made so central to the NAP without acknowledgement of the significant limitations these instruments have in protecting and promoting human rights. The U.S. Government must critically reflect on the shortcomings of the MSIs it is already involved in and understand that MSIs are not substitutes for legally-enforceable corporate regulatory frameworks.

The Limitations of Multi-Stakeholder Initiatives

The U.S. Government has been a leading proponent of MSIs for over fifteen years  – founding, funding and participating in initiatives such as the Open Government Partnership, Voluntary Principles on Security and Human Rights, and, more recently, the Extractive Industries Transparency Initiative amongst others. But while MSIs have emerged as a central pillar of the U.S. Government’s responsible business strategy, there is little evidence that these initiatives have been successful in protecting and promoting human rights.

MSIs cannot provide a comprehensive strategy for the protection of human rights given their voluntary and patchwork nature. For one, MSIs are only founded in sectors where there is sufficient willingness to do so, leaving some industries – often those buried deep in the supply chain – comparatively under-regulated. Secondly, MSIs can be selective in the human rights issues they choose to address within a given industry, often focusing on just one or two hot-button issues such as child labor or conflict. Finally, MSIs are only as strong as their memberships, and often only attract a small proportion of companies in a given sector. Taken together, this means that an MSI’s capacity to protect and promote human rights is dependent on the participation and willingness of member companies to comply with initiative standards.

Consider the rights violations committed over the Dakota Access crude oil pipeline at Standing Rock last year. This would have appeared to be the ideal opportunity for intervention by the Voluntary Principles on Security and Human Rights, a U.S.-supported initiative designed to protect the human rights of individuals interacting with security providers at mining, oil, and gas project sites. However, the oil pipeline’s owners are not signatories of the Voluntary Principles, making them exempt from the initiative’s standards. While the Voluntary Principles involve many leading extractive companies, such as Shell and Chevron, it leaves out innumerable smaller or state-based mining, oil and gas businesses, thus allowing for a regulatory gap. Even if the pipeline’s owners had chosen to participate in the initiative, it is unclear whether the Voluntary Principles would have mitigated the human rights abuses at Standing Rock given that they have, according to some human rights organizations, “vague standards,” and “weak or non-existent assurance mechanisms.”

Such is to show that even if MSIs were comprehensively dispersed across industries, actors, and issue areas, initiatives would still need to be designed in such a way to ensure that they effectively hold their members accountable. For example, the United Nations Guiding Principles on Business and Human Rights call for MSIs to include grievance mechanisms for affected parties to raise concerns about breaches of initiative commitments. However, neither the Voluntary Principles on Security and Human Rights nor the Extractive Industries Transparency Initiative –  both referenced as key initiatives in the NAP – provide any access to remedy. As United Nations Special Rapporteur Maina Kiai notes in his fourth and final report to the United Nations General Assembly, voluntary initiatives that lack critical accountability mechanisms, such as legally binding standards and access to effective remedies, may even worsen workers’ welfare.

Next Steps: How to save the NAP?

It is concerning that the U.S. Government has made the promotion of MSIs so central to its national action plan without taking clear steps to determine whether its two decades of involvement in MSIs has actually led to the protection of human rights on the ground. Nevertheless, it is possible for the United States to improve the initiatives it participates in without discarding them entirely. MSI Integrity’s research indicates that if MSIs are to be relied upon for protecting human rights and used as tools to hold companies to account, they must, for example: (a) offer rigorous monitoring and evaluation frameworks to assess member compliance with initiative standards; (b) meaningfully involve affected communities in their design and operation; (c) provide access to remedy; and (d) maintain the ability to sanction members for non-compliance.* It is encouraging that the NAP has outlined a commitment to promote the development of key performance indicators such as these as part of its efforts to enhance the value of MSIs. Now it is essential that the U.S. Government honestly assess the shortcomings of the initiatives it already participates in using these very metrics.

Ultimately, while the United States may want to leverage MSIs to achieve its responsible business goals, voluntary initiatives should not be considered substitutes for legally-binding and enforceable corporate regulatory mechanisms. Unlike MSIs, the U.S. Government has the power to mandate responsible business practices through enforceable law, such as with the Trade Facilitation and Trade Enforcement Act of 2015 which bans the importation of goods produced with forced labor. While the NAP could have outlined a roadmap for more such binding mechanisms, it relies heavily on voluntary measures instead. MSIs may be useful supplements to law when they meet certain essential elements of good practice. However, the U.S. Government has an obligation to investigate the effectiveness of these initiatives before devoting additional resources to their promotion.

If the United States continues to endorse MSIs without first assessing whether these initiatives have been effective in protecting human rights, the United States risks disempowering workers and communities on the ground and leaving these populations more vulnerable to rights abuse. In this way, the U.S. NAP’s blanket support for MSIs, including those that lack the most essential accountability safeguards, is not only a missed opportunity but also a potential barrier to the advancement of the business and human rights movement.

*In the coming weeks, MSI Integrity will release a guide on the Essential Elements of MSI Design detailing MSI features that are necessary, but insufficient, for initiatives to operate effectively and protect human rights.

Update: Duke MSI Workshop and North Carolina House Bill 2

On May 26, MSI Integrity and the Kenan Institute for Ethics at Duke University co-convened an academic workshop on the design and efficacy of multi-stakeholder initiatives. Because core human rights protections are under threat in the workshop’s host state of North Carolina as a result of the passage of House Bill 2 (HB-2), MSI Integrity reached out to LGBTQ+ student groups at Duke University, as well as Equality North Carolina, and ultimately sent a letter to Duke University’s executive leadership, as detailed in our previous post.

The letter asked for transparency about how Duke University is responding to HB-2, and emphasized concerns expressed by LGBTQ+ students at the university. These concerns related to possible gaps in protection for gender expression in Duke’s anti-discrimination policies including its policies governing employment, lack of clarity as to when Duke would modify existing single-occupancy bathrooms at the university to signify that they are gender neutral and whether it would release a list of trans-safe spaces at the university and/or in Durham.

After sending this letter, we spoke with a senior university administrator and received the following information about the issues raised in the letter:

  • Regarding the Duke’s anti-discrimination policies, the university is currently reviewing its employment policies, although there is not a specific date for when this review will be complete, nor is it clear whether the review will specifically consider whether to add protections against discrimination based on gender expression.
  • There is not currently a timeline or plans to communicate publicly about progress to modify existing single-occupancy bathrooms at the university to signify that they are gender neutral. There is also not a specific university administrator who is responsible for the conversion process.
  • Duke does not have any plans or a timeline for compiling and publicly releasing a list of trans-safe spaces at the university and/or in Durham.

We are disappointed by Duke University’s lack of transparency about efforts to provide a safe environment for those whose rights are at risk as a result of the passage of HB-2. We will continue to constructively engage with LGBTQ+ students as well as university officials and will update this post if we learn more about how Duke is responding to student concerns highlighted in the letter.

We will also be sharing our findings from May’s academic workshop at Duke on multi-stakeholder initiatives later this year.

Response to HB-2 and the upcoming Duke University Workshop on MSIs

On Thursday, MSI Integrity and the Kenan Institute for Ethics at Duke University will be co-convening an academic workshop on the design and efficacy of multi-stakeholder initiatives. This is part of MSI Integrity’s ongoing partnership with the Duke Human Rights Center at the Kenan Institute for Ethics, which has been focused on mapping multi-stakeholder initiatives (MSIs). The event will include experts on international law, sustainability, human rights, and corporate social responsibility from several universities based in the U.S. and U.K. Details on the workshop are available here.

We are looking forward to a vibrant and thought-provoking workshop, and to sharing the broader lessons learned. However, as a human rights organization, MSI Integrity is acutely aware that core human rights protections are under threat in the workshop’s host state of North Carolina. In particular, we are concerned about House Bill 2 (HB-2), passed by the North Carolina State Assembly and signed into law in March, which is an intentional and appalling assault on the rights of LGBTQ+ people and workers throughout the state. The bill codifies discrimination based on sexual orientation and gender identity in addition to eliminating protections against workplace discrimination and other unjust employment practices.

HB-2 has prompted widespread condemnation by civil society, political leaders, and the private sector. Several state governments and cities have condemned HB-2, and some, including New York State, Minnesota, Atlanta, and Chicago, have prohibited non-essential public employee travel to North Carolina. Human Rights Campaign has organized a letter signed by CEOs of over 160 major U.S. corporations calling on the state to repeal HB-2. Earlier this month, the U.S. Department of Justice filed a lawsuit against the State of North Carolina, alleging that HB-2 discriminates against transgender individuals in violation of federal civil rights protections.

After discussion with LGBTQ+ student groups at Duke University, as well as with staff at Equality North Carolina, MSI Integrity has decided to move forward with the workshop and use it as an opportunity to deepen local engagement and support efforts to improve LGBTQ+ and workers’ rights.

We have taken the following steps in light of our serious concerns about the bill and its implications for human rights:

  • We have called for repeal of HB-2 in a letter to the Governor and legislative leadership in North Carolina.
  • We have written to Duke University urging university administrators to listen to requests from students and staff to enhance protections and safety for those adversely affected by HB-2. This includes disclosing a clear timeline for releasing a list of trans-safe spaces on the Duke campus and in the surrounding community, implementing recent commitments to modify single-occupancy bathroom signs to read as gender neutral, and strengthening anti-discrimination policies to improve protections for transgender individuals. We have also requested to meet with university officials to understand how they are responding to diminished LGBTQ+ and workers’ rights in light of HB-2.
  • As long as HB-2 remains in force, MSI Integrity will consider views of affected communities before planning or participating any further events in North Carolina.

If you would like to review copies of our letters to the Governor of North Carolina, leaders of the state’s General Assembly, or to Duke University, which were jointly signed by several workshop participants, please email me at ben@msi-integrity.org.

Update: See our follow-up post on the conference and engagement with Duke University officials.