2.3. Memorandum of Understanding (MoU)
a) Companies may find it challenging to agree on a MoU with host government stakeholders.
Build trust among relevant host government stakeholders and prepare the ground for a meaningful MoU
- Complete stakeholder mapping exercise within host government and identify entry points (See Challenge 1.1.a.)
- Invest the necessary time and effort to agree on a MoU, as “they can be highly effective in successful implementation of the VPs”. (IGTs: 45)
- Ensure the MoU is based on national law. This will foster local ownership and commitment.
- Build support from home governments, NGOs, civil society and community members for the MoU. (IGTs: 45)
Develop and agree on MoU content. Include clauses around:
a) Adherence to the provisions contained in the VPs, the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
b) Public security forces' respect for company security policies and procedures
c) Vetting procedures to ensure that no one allegedly implicated in past human rights and international humanitarian law abuses (i.e. there is a conviction, pending case or very strong evidence) provide security to the company
d) A training programme, if applicable, for public security forces assigned to the company's operations (See Section 2.5. Training)
e) “A protocol to manage equipment transfers in a manner that aligns with the VPs” (See Section 2.6. Equipment)
f) Modalities for company contributions to salaries, goods or services, if applicable, based on the risk assessment
g) An agreed system of information-sharing around security issues, with due regard for necessary confidentiality
f) Commitment to a collaborative working relationship with the joint objective of respecting human rights and international humanitarian law if applicable
i) Points of contact and coordination mechanisms (MIGA: III-5)
j) Include the VPs as an annex to the MoU (MIGA: III-5)
Develop a standard MoU template and adapt it to the local context
If it is not possible to agree on a full MoU from the start, develop specific agreements around key areas of concern such as training, equipment transfers or the working relationship between the company and public security forces
Keep other companies informed of the process
- Discuss challenges and share good practices, both in terms of process and outcomes, with other companies. If a security forum is in place, this would be the ideal environment for this kind of discussion. Otherwise, consider setting ad hoc meetings with security and government relations staff from other companies.
b) Agreements with public security may be reached at the national level, but not reflected in the engagement at the local level. Human rights violations may still occur despite having a MoU in place.
Seek and maintain regular and constructive relationships with the local leadership of public security forces
- Start with introductory meetings that bring key stakeholders to the table. “These should be attended by the local commander of the public security forces, company representatives responsible for security and community affairs (...) and ideally, a member of the company’s senior management”. (IGTs: 41)
- Organise regular meetings and identify contact points. The introductory meetings should ideally lead to the scheduling of regular meetings (e.g. once a month) in order to exchange security information and address concerns regarding human rights and international humanitarian law. Contact points on each side should be identified early on. (IGTs: 40-41)
- Formalise the relationship. This could be done for instance through an exchange of letters or by signing an agreement at the local level.
- Invite counterparts to participate in occasional social events. “This promotes mutual understanding, builds confidence and ‘humanises’ (the relationship)”. (MIGA: III-11)
- Invest time. Relationship building requires patience and commitment. There will be a trickle-down effect eventually, even though it will probably not happen immediately.
Demonstrate a policy commitment to the VPs and set out the company’s expectations
- Develop a clear statement of policy. This should be “approved at the most senior level of the (company)” and stipulate the human rights expectations of its partners or parties directly linked to its operations. The statement should be actively communicated and publicly available. (GPs: 16)
- Explain the VPs to public security forces. “At provincial and national levels, management may include the VPs as a talking point in wider discussions. At the local and site levels, company management should dedicate time to make the VPs the topic for a separate meeting.” (MIGA: III-15)
- Refer public security forces to the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials as well as to the rules governing the conduct of hostilities under international humanitarian law in the context of armed conflict. Ensure that obligations are explained in ways that are easily understood by different audiences.
- Use language that public security forces can relate to. Appeal for example to “values such as ‘operational excellence’ or ‘best practice’ ”. (IGTs: 41, 47)
- Translate policies, rules and explanatory documents into local languages.
Incorporate VPs into an agreement/MoU at the local level
- Develop, if required, separate agreements or MoUs at both the national and local levels. Clearly identify different responsibilities between the national level and local level implementation.
- Negotiate and sign a site security agreement. Such an agreement should establish the “conditions, expectations, obligations and standards of behaviour outlined for all parties” (MIGA: III-3), both “in standard operational procedures and in extraordinary or emergency circumstances” (MIGA: III-6). “The ideal outcome is a binding agreement that specifies the responsibilities and obligations of the company and the public security forces, signed by the senior leadership of the company and the respective agencies with detailed implementation instructions at subordinate levels” (MIGA: III-3). Roles and responsibilities of public and private security should be clearly set out.
- Make sure agreements/MoUs are realistic. This means basing requirements on an analysis of the actual challenges faced by the company and public security forces at the local level. Ensure that agreements are flexible so that arrangements can be adapted in line with evolving requirements.
- Link the agreement to existing host nation laws and agreements. (MIGA: III-5)
- Agree on a training programme for public security forces covering as a minimum the following topics: human rights, international humanitarian law, sexual violence, rules of engagement for the use of force, conflict management, crowd control and public order. (See Challenge 2.5.b.)
- Develop a clear policy to respond to requests for equipment at the local level. (See Section 2.6. Equipment)
- Invest time in negotiations. “The company will have to consult with multiple levels of the host country government and convince them of the usefulness of (an agreement)”. (MIGA: III-7)
- Establish monitoring mechanisms to identify where agreements are not respected. Act swiftly to address instances of non-compliance with host state points of contact.
Ensure arrangements made at the local level with senior public security authorities are agreed at the national and regional levels
- Identify relevant interlocutors at different levels within the public security forces chain of command through a stakeholder mapping exercise.
- Meet with the regional public security forces commander(s) on a periodic basis. “Unless there is a real emergency, all issues should be discussed with the regional public security commander before taking them up the chain of command”. (MIGA: III-11)
- Where possible, promote information sharing between different public security forces (e.g. through organising coordination meetings).
Engage with other stakeholders
- Develop a network of stakeholder relationships, including national government agencies, civil society organisations and other companies to exchange security and human rights information.
- Establish a broad-based security working group at the local level
- Establish a security working group to promote coordinated, bottom up approaches to addressing security and human rights challenges. It can also offset the impact of changes in the government at the national level on progress made at the local level.
- Invite the police chief, the military commander, the local head of government, one or two local leaders and other companies operating in the area to participate in a working group.
- If appropriate, invite representatives of civil society organisations, including women’s networks and groups.
- The first objective in establishing such a working group is to build trust and to promote exchanges among relevant actors. These structures may take time to become action-oriented, but the time taken to build up mutual confidence and a common understanding of the issues is invaluable.
- Ensure that the working group meets regularly and that there is a clear focal point responsible for logistics, agenda and recording of key issues from meetings.
- Consider co-chairing of meetings (e.g. one company and one civil society representative) to highlight the legitimacy of the group.
CASE STUDY: MONTHLY SECURITY AND HUMAN RIGHTS MEETINGS IN LUBUMBASHI
Since 2012, monthly security meetings have been held in Lubumbashi to discuss challenges and share good practices around extractive operations in the province of Katanga, in the Democratic Republic of the Congo (DRC). Initially, meetings have been coordinated by the NGO Pact Congo and the company Tenke Fungurume Mining (TFM). Participation in the meeting is open to all extractive companies working in the area, regardless of their VPs status, as well as local public institutions, public security forces, private security companies, human rights NGOs and the United Nations Organization Stabilization Mission in the DRC (MONUSCO). This open approach has promoted the implementation of VPs good practices beyond formal members of the initiative.
Each meeting focuses on one or more concrete challenges (e.g. impact of mining on the environment, legal obligations of companies when contracting private security services, vetting requirements, correct procedures for use of non-lethal defensive equipment). The meetings also provide the opportunity for participants to share updates on any security incidents around extractive operations in the region.
These meetings are conducted in a manner that allows for open and ongoing exchanges among participants, facilitating the sharing of information between companies, public authorities and civil society organisations. Efforts are underway to systematise the follow up of recommendations made during these sessions and assess how these have had an impact. The monthly VPs meetings in Lubumbashi provide a framework that facilitates multi-stakeholder collaboration to address local challenges.
Manage human resources appropriately
- Get the right person(s) for the job. Ensure those on the spot responsible for relations with public security forces have credibility. Key requirements include cultural awareness, operational experience and ability to speak the local language (all this may require hiring more than one person). Political awareness is also essential. The company representative(s) must not be seen to be aligned with one particular group, for example a conflict party, opposition political group, the ruling political elite or with the advocacy position of lobby groups.
Reassess and update the MoU regularly