The Role of the State as Buyer Under UN Guiding Principle 6

Abstract

Public procurement is the purchase by the public sector of the goods and services it needs to carry out its functions. It has an essential role to play in facilitating States’ fulfilment of their duties to protect, respect, and fulfil human rights. Equally, government buying accounts for a significant proportion of the overall global economy. Worldwide, it has a value of approximately €1000 billion per year and it comprises, for instance, on average 12% GDP in OECD countries. As “mega-consumers,” governments have the purchasing power to set standards that can shift markets towards sustainable production, to exercise leverage over suppliers towards this goal – and to lead by example in introducing human rights into supply chain management by establishing arrangements for human rights due diligence. In the past, however, little consideration has been given to the human rights impacts of the central state and other public bodies in terms of their role as a consumer. This lack of policy coherence undermines fulfilment of the UN Framework and UN Guiding Principles on Business and Human Rights. This submission addresses this gap by starting to clarify states’ human rights responsibilities regarding public procurement and identifying emerging good practices through which public buyers can fulfil these responsibilities. It defines public procurement and provides a brief account of its role, scale and relevance in the business and human rights context; outlines how public procurement is currently regulated under international and regional legal frameworks, with reference to instruments such as the WTO Agreement on Government Procurement (GPA), EU procurement rules and the UNCITRAL Model Law, as well as relevant policy frameworks, including those concerning “responsible global value chains”. It demonstrates how human rights can be integrated into the procurement cycle with reference to concrete examples. Measures promoting respect for human rights in public procurement emerging from National Action Plans on business and human rights (NAPs) are also considered. Finally, it presents recommendations for states and other procurement regulators, and other relevant stakeholders, including national human rights institutions (NHRIs), civil society organisations (CSOs), the UN system and business associations regarding the further development of public procurement as an element of the obligation to protect human rights in the context of business operations.