5. National Action Plan on Business and Human Rights
5.3 Role of the State and of business enterprises [page 11]
The State duty to protect is supplemented by the corporate responsibility to respect human rights. With this in mind, Guiding Principles 11-24 and 28-31, which are aimed at business enterprises, are also important cornerstones of the federal government’s work to fulfil its State duty to protect. These Guiding Principles describe the scope of the corporate responsibility to respect human rights, specifically by conducting human rights due diligence as a core element of fulfilment.
5.7 Pillar 1: state duty to protect
5.7.2 Operational Principles; legislative and information policy measures
Guiding Princple 3 [page 14-17]
PI1 Human rights due diligence
Swiss legislation does not make any provision for business enterprises having to conduct general, legally binding human rights due diligence. Potential regulation in this area would have to have a broad base of international support to avoid placing Switzerland at a disadvantage as a business location. The Federal Council supports due diligence on a voluntary basis, however.
In May 2014, in fulfilment of postulate 12.3980 from the National Council Foreign Affairs Committee, the Federal Council had a report drawn up to compare legally binding due diligence obligations in other countries. It also discussed options for Switzerland in an accompanying commentary. The report shows that no country makes any provision for a comprehensive duty to conduct human rights due diligence. In March 2015, the National Council rejected a motion from its Foreign Affairs Committee to introduce a binding obligation for business enterprises to conduct human rights due diligence.
A key concern for a number of stakeholders is the introduction of legally binding human rights due diligence. In April 2015, an alliance of 66 civil society organisations launched the Responsible Business Initiative, which would like to see a general human rights due diligence obligation enshrined in law. The popular initiative was submitted on 10 October 2016, and on 1 November 2016 the Federal Chancellery confirmed that it will go forward to a referendum.
PI8 Guidelines for business enterprises on implementing the UNGP
The federal government has supported the development of a variety of guidelines on business and human rights in recent years. Further to Recommendation 11 in the Federal Council’s Background Report on Commodities, the federal government is joining forces with NGOs and commodity trading.
5.7.3 The State-business nexus [page 22]
Guiding Principle 4
Guiding Principle 4 concerns the activities of business enterprises that are owned or controlled by the federal government (referred to below as federal government-associated businesses), or which receive considerable support and services from federal agencies. Given its direct influence on the activities of these companies, under the UNGP the federal government has a particular obligation to ensure that these federal government-associated businesses protect human rights, for example by conducting human rights due diligence. Where the acts of a business enterprise can be attributed to the federal government, abuses of human rights may entail a violation of Switzerland’s own international law obligations to respect human rights.
Further on, the NAP explains PI17 [page 22] regarding Human rights due diligence by federal businesses and federal government-associated businesses, PI18 [page 23] regarding Requirement that business enterprises covered by Swiss Export Risk Insurance (SERV) conduct human rights due diligence and PI19 [page 23] regarding Human rights due diligence by the authorities in public-private development partnerships, PI19 regarding Human rights due diligence by the authorities in public-private development partnerships and PI20 [page 24] regarding Human rights due diligence for private security service providers. The NAP makes a reference to human rights dues diligence also with regards to GP7 in the section devoted to Business respect for human rights conflict-affected areas [page 25].
5.7.5 Policy coherence
Guiding Principle 8 [page 28]
PI28 Coherence between the various policies, strategies and action plans
… The Federal Council incorporated the UNGP, as a key reference framework for State activities in the business and human rights sphere, into the Sustainable Development Strategy, which it endorsed as part of its legislative planning programme in early 2016. The Principles incorporated into the Strategy include recognition of the federal government’s duty to protect, as well as the responsibility of business enterprises to respect human rights – one of the means of doing so being the implementation of human rights due diligence. …
Appendix 1 [page 44-45]:
– Support for and promotion of human rights due diligence by business Enterprises; Draft of guidance on human rights due diligence for international sporting events and commodities trading; implementation of the SDC Risk Assessment Guidelines for Partnerships with the Private Sector; Implementation of the Federal Act on Private Security Services provided Abroad; Support for the implementation of guidelines on human rights due diligence in conflict-affected and high-risk areas.