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Tuesday
Jul072015

Federal procurement and human rights protections: President Obama's mixed record

Official White House photoIn a June 23 letter, 130 members of Congress urged President Obama to finalize an Executive Order requiring federal contractors to disclose their political contributions.

“With public funds come public responsibilities,” the letter said, and at $350 billion yearly in federal spending alone, the U.S. government is the largest single purchaser in the global economy. But these public responsibilities go well beyond tracking political contributions.

Taxpayers certainly have a right to know where their money is spent -- particularly when those dollars fund causes that contravene the public interest. Over the last several years, civil society has increasingly pushed for stronger implementation of human rights protections in federal spending, also referred to as public procurement.

The 2011 United Nations Guiding Principles on Business and Human Rights (available here pdf) make clear that a government’s obligation to protect human rights is most compelling when purchasing goods or contracting out public services. But the government not only has a legal obligation to protect human rights in its supply chains, it also has a moral obligation to ensure our tax dollars do not fuel heinous abuses at home or abroad.

The Obama administration has largely heeded this call. Less than two weeks into his first term, President Obama signed an Executive Order requiring federal contractors to notify employees of their rights under federal labor laws. 

In 2012, he signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting, implementing zero-tolerance restrictions on trafficking both at home and abroad.

 Just last year, President Obama signed another Executive Order mandating contractors to address worker complaints and disclose labor law violations to agencies awarding federal contracts—all while Congress remained conspicuously silent on the issue of human rights in procurement.

Yet, while these Executive Orders mark notable progress, the Obama administration’s procurement agenda also has its share of pitfalls, as tax dollars continue to fund serious abuses. For instance, policies implementing due diligence in procurement have addressed only limited and isolated categories of human rights violations, primarily human trafficking and workplace discrimination.

But comprehensive human rights protections are key when government purchases link to a range of abuses. In funding global supply chains that seek large-scale production at the lowest possible cost, government dollars can also fuel unsafe working conditions, illegal wages and hours, and child labor—as well as trafficking and discrimination.

Abuses are especially likely to occur when procurement is sourced from countries where rule of law and respect for human rights is weak or nonexistent. The tragic factory collapse in Bangladesh still haunts our collective memory and reports following the incident revealed that the government itself sources clothes from dangerous facilities with flagrant disregard for workers’ rights.

This administration has also wavered in applying human rights protections to government purchases in a consistent manner. For example, President Obama signed an Executive Order adding sexual orientation and gender identity to the list of categories protected against workplace discrimination in federal purchasing. However, the order does not apply to federal contractors doing business abroad, nor does it apply to grantees. Citing this discrepancy, members of Congress have begun to push for expanding the applicability of these protections.

In addition to these large gaps in protection, the Obama administration has also taken measures that directly counteract previous progress in this area. For example, a recent Executive Order addressing sustainable procurement removed crucial language requiring agencies to consider environmental measures and social impacts—including human rights protections—in evaluating projects and activities. Striking this language suggests a surprising step back from the George W. Bush-era policy and could have very damaging repercussions, giving agencies free rein to ignore the social and environmental repercussions of their purchasing decisions.

Despite this mixed record, we remain hopeful that the Obama administration will emerge as a leader in promoting human rights in its procurement policy. Last September, President Obama committed to develop National Action Plan on Responsible Business Conduct to address business-related human rights harms.

Just last month, President Obama further pledged to foster sustainable supply chains and encourage best practices in procurement as part of the G7 Leaders’ Declaration.

Both initiatives are key opportunities to deliver powerful national strategies that prioritize human rights protections in government spending decisions. Specifically, we urge the administration to expand the scope of human rights protected by these orders beyond trafficking and discrimination, build capacity within agencies to proactively assess the risk of human rights abuses, and require federal contractors to disclose their supply chains.

As his administration approaches its final year, we urge President Obama to keep pushing federal procurement policy to a place of progress -- while being careful to avoid the pitfalls.

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Amanda Werner is an international human rights lawyer, currently serves as a Legal and Policy Fellow at the International Corporate Accountability Roundtable (ICAR), and has served as a Legal Fellow in U.S. Senator Elizabeth Warren’s Washington DC Office. She can be contacted here.

Sati Harutyunyan is a third-year law student at The George Washington University Law School. She is also a participant in the law school’s International Human Rights Clinic and a Legal and Policy intern at ICAR. She can be contacted here.