Memorandum of understanding (MoU)
Developing a memorandum of understanding: navigating the challenges of potential reluctance from host government stakeholders
Build trust among relevant host government stakeholders and prepare the ground for a meaningful memorandum of understanding.
- Complete a stakeholder mapping exercise of the host government and identify entry points for dialogue (see Host government interlocutors: dealing with staff turn-over, decentralization of responsibilities and multiple agencies within Engagement and coordination with host governments – Working with Host governments).
- Ensure that national law is used as a basis for the development of the memorandum of understanding, as this will foster local ownership and commitment.
- Frame the development process for a memorandum of understanding as an effort at building mutual understanding and managing expectations around the management of security issues, rather than an externally imposed constraint laid on the host government. ‘Walk the talk’ throughout the development process by being honest, sincere, open and understanding.
- Build support from home governments, NGOs, civil society and community members for the development of a memorandum of understanding.
- Invest the necessary time and effort to agree on a memorandum of understanding, as it can be a crucial factor in the successful implementation of good security and human rights practices.
Develop and agree on content to be included in the memorandum of understanding.
- Include clauses around:
(Except where otherwise indicated, these bullet points have been extracted from UNSecurity Sector Reform Integrated Technical Guidance Notes, p. 45 (UNDepartment of Peacekeeping 2012).
- Adherence to the provisions contained in the and the , as well as the Voluntary Principles on Security and Human Rights.
- Public security forces’ respect for company security policies and procedures.
- Vetting procedures to ensure that no one allegedly implicated in past human rights and international humanitarian law abuses (i.e. groups and individuals with a conviction, pending case or very strong evidence) provide security to the company.
- A training programme, if applicable, for public security forces assigned to the company’s operations (see Training – Working with Public Security Forces).
- A protocol to manage equipment transfers in a manner that aligns with good security practices (see Equipment – Working with Public Security Forces).
- Modalities for company contributions to salaries, goods or services, if applicable, based on the risk assessment.
- An agreed system of information-sharing around security issues, with due regard for necessary confidentiality.
- Commitment to a collaborative working relationship with the joint objective of respecting human rights and international humanitarian law (if applicable).
- Points of contact and coordination for the memorandum of understanding on public security arrangements.
- In addition, companies should consider including the text of the Voluntary Principles on Security and Human Rights as an annex to the memorandum of understanding.
Develop a standard memorandum of understanding template and adapt it to the local context.
If it is not possible to agree on a full memorandum of understanding 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. Consider continuing to work towards the development of a comprehensive memorandum of understanding using these agreements as a basis.
Keep other companies informed of the memorandum development process.
- Discuss challenges and share good practices, both in terms of process and outcomes, with other companies. If an in country working group on security and human rights forum is in place, it would be the ideal environment for this kind of discussion. Otherwise, consider setting up ad hoc meetings with security and government relations staff from other companies, or set up such a forum.
Implementation of an agreement on public security: ensuring local commitment to national-level agreements
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, including the local commander of public security forces, members of the company’s senior management and company representatives responsible for security and community affairs.
- Organise regular meetings and identify contact points. Introductory meetings should ideally lead to regular meetings (e.g. once a month) where the company, public security and other actors can exchange security information and address concerns regarding human rights and international humanitarian law. Contact points on each side should be identified early on.
- 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 with the view to promoting understanding and building mutual confidence.
- 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 responsible security practices and set out the company’s expectations.
- Develop a clear statement of policy. According to the UN Guiding Principles on Business and Human Rights, the policy should be approved at the most senior level of the company. It should also stipulate the human rights expectations of company partners and other parties directly linked to the company’s operations. The statement should be actively communicated and publicly available.
- The human rights policy should include a commitment to the Voluntary Principles on Security and Human Rights and/or other standards relating to human rights and security (see Sensitive discussions on security and human rights: addressing issues constructively within Human rights concerns – Working with Host Governments).
- Discuss responsible security practices with public security forces and introduce the Voluntary Principles on Security and Human Rights. While the Voluntary Principles were initially developed for companies in the extractive sector, companies in other sectors can use them as a springboard for the management of their security practices.
- Determine what type of intervention is appropriate at each level of engagement. At provincial and national levels, responsible security practices may be included as a talking point in wider discussions, while a separate meeting may be more appropriate at local and site levels.
- 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. Use the Voluntary Principles on Security and Human Rights as an additional reference. Ensure that obligations and expectations are explained in ways that are easily understood by different audiences.
- Use language that public security forces can relate to, rather than concepts such as ‘human rights’ or ‘international humanitarian law’, which security forces might not know about or relate to. The United Nations Security Sector Reform Inter-Agency Task Force encourages appealing to values such as ‘operational excellence’ or ‘best practice’.
- Translate policies, rules and explanatory documents into local languages.
Incorporate provisions around responsible security practices into an agreement or memorandum of understanding at the local level.
- Develop, if required, separate agreements or memoranda of understanding at both the national and local levels. Clearly identify different responsibilities and expectations between national-level and local-level implementation.
- Negotiate and sign a site security agreement. According to the World Bank and Anvil Mining, such an agreement should establish the ‘conditions, expectations, obligations and standards of behaviour outlined for all parties’, both ‘in standard operational procedures and in extraordinary or emergency circumstances’. Additionally, ‘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’. Roles and responsibilities of public and private security should be clearly set out within this agreement.
- Make sure agreements and memoranda of understanding 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 government laws and agreements.
- Agree on a training programme for public security forces covering, as a minimum, the following topics:
- The legal framework, including international human rights law, domestic law and international standards for policing.
- Ethics, responsibilities, tasks and powers for public security assigned to extractive sites, as well as how these differ from typical law enforcement assignments.
- Principles governing the use of force, graduated responses, rules on the use and storage of small arms and light weapons, use of less lethal weapons and crowd control.
- Company coordination with public security on topics such as maintenance and restoration of rule of law, as well as community policing.
- Expectations towards different stakeholders, such as artisanal and small-scale miners [BURDZY2] who may be working on or next to company operations.
- Rules governing arrest, detention, search and seizure.
- Accountability and responses to serious abuses (see Low levels of awareness and understanding of security and human rights issues by public security forces: getting involved in the training of forces assigned to the company’s area of operations within Training – Working with Public Security Forces).
- Develop a clear policy to respond to requests for equipment at the local level (see Provision of logistical, financial and/or in-kind support to public security forces: managing the associated risks within Equipment – Working with Public Security Forces).
- Invest time in negotiations with multiple levels of the host country government and convince these stakeholders of the usefulness of an agreement or memorandum of understanding.
- Establish monitoring mechanisms to identify when 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 chain of command of public security forces through a stakeholder mapping exercise (see Host government interlocutors: dealing with staff turn-over, decentralization of responsibilities and multiple agencies within Engagement and coordination with host governments – Working with Host Governments).
- Periodically meet with regional-level and/or local-level commanders of public security forces.
- Where possible, promote information-sharing between different public security forces (e.g. through organising coordination meetings).
Engage with other stakeholders.
- Develop a network of stakeholders—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. These groups can help offset the impacts that national-level changes in the government have on local-level progress.
- 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.
- Invite representatives of civil society organisations, including women’s networks and groups, as well as representatives of indigenous peoples.
- When establishing such a working group, insist that the first objective is building trust and promoting dialogue among relevant stakeholders. Open the discussion with sharing human rights challenges. 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 overseeing logistics, setting the agenda and recording key issues from meetings.
- Consider co-chairing meetings (e.g. one company and one civil society representative) to highlight the legitimacy of the group.
Manage human resources appropriately.
- Get the right people for the job. Ensure those responsible for relations with public security forces have credibility. Key requirements include cultural awareness, operational experience and ability to speak the local languages. (Having all of this may require hiring more than one person.)
- Political awareness is also essential. The company representative(s) must not be seen as aligned with one particular group (e.g. a conflict party, opposition political group or the ruling political elite). The representative(s) should also not hold advocacy positions with lobbying groups.