Our Early Stage Researcher Laura Treviño-Lozano published a recent article in the Business and Human Rights Journal titled “Is Latin America Missing the Links Between Procurement, Sustainability and Human Rights?”. To answer this question, this article covered a critical analysis of sustainability and business and human rights policies in Colombia, Peru and Chile. It entailed on the one hand, domestic plans on sustainable consumption and production (SCP) to deliver on these three countries’ political commitments on Sustainable Development Goal 12 (SDG12) of the Agenda 2030. On the other, it included National Action Plans on Business and Human Rights (NAPs) to deliver on states’ legal obligations to implement the UN Guiding Principles on Business and Human Rights (UNGPs).

In such analysis the author concludes the Latin American region has progressed through valuable efforts towards sustainability and human rights in the field of procurement, notably, because they all address public procurement in both SCPs and NAPs policymaking. However, there are three missing links in procurement policies within the NAPs that are highlighted in this work.

First, NAPs tend to be focused on labour-related human rights, rather than considering all human rights that could be at risk within supply chains of each good, service or works the public buyers contract with businesses. For example not considering the right to food and health when procuring meals for schools and hospitals. Besides, all NAPs overlook redress of human rights abuses that may be committed by private suppliers or their subcontractors in the execution of the contract.

Secondly, NAPs tend to focus on the inclusion of human rights criteria within the first two stages of procurement, especially in selection and awarding criteria, rather than comprehensively through the entire procurement cycle. Particularly, more attention needs to be placed in enforcing measures within the third stage of procurement related to contract management. Human rights criteria embedded in design will have little impact if they lack compliance in the execution of contracts. In relation to contract management, measurement of implementation is of paramount importance. Indeed, in the context of the development of a second version of Chile’s NAP, a study recommended to assess the impact of integrating human rights criteria in the cost of public purchases to gauge the resulting additional benefits and social value.

Thirdly, all NAPS have statements about their contribution to achieving the 2030 Agenda’s SDGs. Yet there are still loose and weak connections between them with considerable gaps that ultimately undermine human rights. The UN Working Group on Business and Human Rights expressed in a report Latin America has both the challenge and need of policy coherence at regional and country level between human rights and sustainable development by making explicit the concrete references of the linkages between them, particularly in policies. Some countries, like Chile, pay attention to the 2030 Agenda by highlighting in its NAP the “connection” both frameworks have in a general way. Others like Colombia have made considerable progress in the integration of environmental and social sustainability in procurement technical and operational guidelines. Indeed, Colombia developed the Guide for Sustainable Public Procurement in 2013 and in 2017 (Guides for SPP) deriving from the SCP plan, alongside the Guideline of Socially Responsible Public Procurement (Guide for SRPP) in 2018 resulting from the NAP.

However, the ultimate harm on human rights deriving from a loose connection between NAPs and SDGs in this third argument can be further seen at an implementation level when analysing policy guidelines in the case of Colombia. Both Colombian Guides of 2013 and 2017 establish the definition of sustainable but they have no explicit reference to human rights. They set “sustainable” is “the product and/or service responds to the needs of present generations, while protecting and improving the opportunities of future generations. It is focused on the management of all resources so that they satisfy all economic, social, aesthetic and quality needs, while respecting cultural integrity, processes essential ecological ecosystems, biological diversity and life support systems. The best practices are implemented throughout the life cycle of the goods and/or services, which effectively contribute to minimizing the negative impact that may be caused on the environment, the community; considering factors such as greenhouse gas emissions, resource consumption, selection of materials, loss of biodiversity, among others.” Human rights appear segregated in the Guides for SPP from what is considered “sustainable” and rather included in the definition of “ethical production”, a labour rights-oriented notion which aims to secure “the products are sourced from suppliers that respect the international standards (rights) related to the job post issued by entities like the ILO”. The segregation of human rights into a different term together with the definition of “sustainable” in both Colombian Guides for SPP is problematic. Mainly because Colombia’s SCP plan has the percentage of the total investment in public acquisitions considered “sustainable”, and the number of goods or services with “environmental criteria” incorporated to the System of Information for Monitoring Public Procurement (SICE) amongst its indicators of achievement of sustainable public procurement (SPP). Yet, no “ethical production” is included within these indicators. Therefore, a purchased good that is made of recycled materials by workers under forced labour conditions in the supply chain might fit into the Guides for SPPs’ definition of “sustainable”, and meet the indicator of the SCP plan in accomplishing SPP.

Moreover, the Guide for SPP of 2017 includes a detailed methodology to procure in “sustainable” ways from planning, selecting and prioritising goods and services. It lists ways to embed green criteria in concrete examples such as electronics, printers, edible oil, fuel, detergent, illumination, paper, textiles, coffee, and paint. While environmentally focused, the Guide for SPP of 2013 also included social criteria with a positive social approach like the inclusion of vulnerable groups or social investment programmes that can reflect in facilitating human rights enjoyment through government contractors. Also, it addressed a negative social approach like eliminating child labour, and meeting minimum wage and workers’ rights to freedom of association, which entail human rights protection duties. In addition, the Guideline for SRPP contains due diligence obligations for state’s suppliers to identify, mitigate, follow up, measure, and publish human rights risks, which could facilitate operationalisation of social criteria listed in the Guide for SPP. However, the lack of cross-reference between the Guides for SPP and the Guide for SRPP prevents them from working together towards the same end. On the contrary, their disconnection denies the strong linkages the environment has with human decent living standards and strengthens the common practice that subsumes human rights by environmental sustainability. All of which has the risk to lead to green-only approaches. Indeed, a study revealed one of the most advanced public bodies in Colombia implementing SPP is the Ministry of Commerce, Industry and Tourism. In 2017 more than 67% of its purchases included “sustainable criteria”. Yet, analysed “sustainable” contracts to buy paper, computers and printers were all socially blind. The contracting authority included only environmental criteria such as low energy consumption or no mercury in their composition. The green shadow on human rights derives from a poor articulation between relevant policies and tools. In Colombia a purchase can achieve a “sustainable” tag and meets the SCP plan’s indicators by including green-only criteria. Therefore, there are few incentives left to include social criteria in that purchase too, like human rights due diligence. Particularly, when the latter is not binding within legal frameworks.