2 National Action Plan on Business and Human Rights 2020-23

2.1 Pillar 1: state duty to protect

 

2.1.2 Operational principles: legislative and information policy measures

Swiss legislation does not require companies to carry out human rights due diligence. In response to the popular initiative ‘Responsible Business – Protecting Human Rights and the Environment’, the Federal Council proposed submitting it to the people (referendum), without a counter-proposal. It advised voters to reject the initiative, explaining that it prefers a coordinated approach at the international level and the use of existing instruments, specifically the national action plans on the subjects covered by the popular initiative

 

2.1.3 The State-business nexus

Guiding Principle 10

Measure 9: Human rights due diligence by federal government-associated businesses

The Federal Council defines its strategic goals for federal government-associated businesses every four years and expects these companies to pursue a sustainable corporate strategy to the best of their business ability. As regards the protection of human rights, a number of these businesses already exercise due diligence and document these efforts in their reporting.

To advance the implementation of UN Guiding Principles by federal government-associated businesses, interdepartmental coordination must be stepped up. Failure by these entities to meet international standards on human rights due diligence could pose a reputational risk to the federal government. The Federal Council therefore intends to assist federal government-associated businesses in playing a lead role by raising awareness of human rights due diligence and promoting the exchange of best practices, particularly with regard to risk management, monitoring and public reporting. This optional measure is geared primarily towards federal government-associated businesses which work with suppliers and business partners abroad.

The federal government may also run optional training sessions on UN Guiding Principles and human rights due diligence for the members of boards of directors and senior management of federal government-associated businesses.

Objective Indicator Responsibility
Assist federal government-associated businesses in taking a lead role and encourage them to put in place human rights due diligence procedures. examples of human rights due diligence exercised by federal government-associated businesses.

At least one training session held for federal government-associated businesses.

FDF [Federal Department of Finance],

DETEC [Federal Department of the Environment, Transport, Energy and Communications],

EAER [Federal Department of Economic Affairs, Education and Research].

 

Measure 10: Human rights due diligence by business enterprises covered by Swiss Export Risk Insurance (SERV) and supported by Switzerland Global Enterprise (S-GE)

The OECD Recommendation of the Council on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence is constantly being updated and developed. Switzerland contributes to this process. The guidelines are intended, among other things, to provide greater protection against business-related human rights abuses, and they are widely recognised as constituting an international standard by export credit agencies and export risk insurance providers.

The SERV Ordinance (as amended) expressly requires insurance applicants to disclose human rights-related information. Unlike many other export credit agencies, SERV does not grant export credits, i.e. engage in direct lending, but solely provides insurance and guarantees, i.e. pure cover. SERV does not provide cover or accept liability in respect of claims relating to projects that do not meet international human rights standards because of the insured party’s activities.

Switzerland Global Enterprise (S-GE) works on behalf of the federal government and the Swiss cantons to promote exports and attract companies to Switzerland. It helps companies exploit new international markets, thus promoting Switzerland’s as a business location. S-GE has a Code of Conduct which is intended to ensure that its staff are not implicated in human rights abuses by Swiss companies. If S-GE determines that a company has committed a human rights abuse, it will decline the mandate in question.

Objective Indicator Responsibility
A rights-aware approach in all export promotion activities. Human rights due diligence by SERV (source: report to Federal Council on the achievement of strategic objectives). Verification of compliance with Code of Conduct (source: S-GE monitoring report submitted to the EAER). EAER [Federal Department of Economic Affairs, Education and Research]

 

Measure 11: Human rights due diligence by public-private development partnerships

As laid down in the Code of Conduct for Contractual Partners of the FDFA [Federal Department of Foreign Affairs], respect for human rights and gender equality are two of the values which should be promoted in the interests of Switzerland. All individuals, companies or other entities that work with the FDFA are required to contribute to the promotion of these values and to act in accordance with them, and with the legal order. The Code of Conduct outlines the attitude and behaviour that the FDFA expects from its contractual partners (suppliers of goods and services, consultants, contractors, organisations responsible for implementing projects and/or recipients of contributions, etc.) in Switzerland as well as abroad. The Code of Conduct is binding and forms an integral part of all agreements between the FDFA and its partners.

The Swiss Agency for Development and Cooperation (SDC) Risk Assessment for Partnerships with the Private Sector takes into account the impact that these partnerships could have on human and employment rights, government structures and the environment. Consequently, the federal government will not work with partners which have repeatedly been involved in human rights abuses or cannot provide cogent evidence that they have substantially reduced their exposure to human rights risks.

The federal government is currently working with other donors on a risk management model for public-private development projects. The outcome of this process, which takes place within the framework of the Private Sector Engagement Working Group of the Donor Committee for Enterprise Development (DCED), could necessitate amendments to the SDC Risk Assessment for Partnerships with the Private Sector.

Objective Indicator Responsibility
Prevent human rights risks in public-private development partnerships. A tangible example that the SDC Risk Assessment guidelines have been implemented, including a human rights risk assessment, prior to entering into a new public-private development partnership. FDFA [Federal Department of Foreign Affairs],

EAER [Federal Department of Economic Affairs, Education and Research].

 

2.1.4 Business respect for human rights in conflict-affected areas

Guiding Principle 7

Given the heightened risk of human rights abuses in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved in such abuses or lead State entities to commit human rights violations. The federal government expects companies operating in conflict-affected and high-risk areas to conduct due diligence in a way that takes local circumstances into account. This requires the adoption of a conflict-sensitive approach based on human rights and observance of the ‘do no harm’ principle (consideration of problems intrinsic to fragile contexts).

 

Measure 13: Guidelines on human rights due diligence in conflict-affected and high-risk areas

Guidelines on human rights due diligence in conflict-affected and high-risk areas have been drawn up at international level and adopted by various OECD members. The Federal Council works at international level to advance the development, promotion and implementation of global standards. Switzerland also supports the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas.33 It is also a member of the multi-stakeholder group that manages the implementation, dissemination and continued development of these guidelines. The OECD Due Diligence Guidance is aimed primarily at companies involved in the extraction and trading of commodities in conflict-affected and high-risk areas, but it also applies to manufacturers of products containing minerals which operate in the downstream value chain and are required to exercise due diligence.

In addition, the federal government supports a project led by the UN Working Group on Business and Human Rights that aims to clarify the practical steps that companies, investors and States should take to prevent and combat business-related human rights abuses in conflict, post-conflict and fragile contexts The EU adopted Regulation 2017/821 of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. The relevant provisions will take effect on 1 January 2021. In accordance with the Federal Council decision of 14 August 2019, the FDJP is mandated to examine the introduction of a mandatory due diligence in the area of “minerals from conflict areas”. In the meantime, on 18 December 2019, the Council of States adopted a regulation on this issue as part of the preparation of an indirect counter-proposal to the popular initiative for responsible businesses. The National Council has not yet commented on this. The Federal Council is of the opinion that it should await the end of the parliamentary debates.

Objective Indicator Responsibility
Develop, promote and implement specific guidelines in respect of high-risk, conflict-affected areas.

Explore possible measures that are consistent with international rules, including a bill to be submitted for consultation.

Example of the federal government’s contribution to organisations developing these guidelines.

Explore possible measures that are consistent with international rules, including a bill to be submitted for consultation.

FDFA [Federal Department of Foreign Affairs],

EAER [Federal Department of Economic Affairs, Education and Research],

FDJP [Federal Department of Justice and Police].

2.1.5 Policy coherence

Guiding Principle 10

Measure 19: Promotion of respect for human rights and labour standards within financial institutions

Investments by the Swiss Investment Fund for Emerging Markets (SIFEM) are subject to full due diligence with regard to its environmental, social (including working conditions) and governance (ESG) responsibilities. The relevant human rights standards are applied in all ESG risk assessments. This means that the risks of human rights abuses are always taken into account in the investment decision-making process. SIFEM partners (fund managers) are required to submit an annual or half-yearly report detailing their ESG activities and any major ESG accidents and incidents. This information makes it possible to improve the monitoring of human rights issues from the initial situation assessment and right through the investment cycle.

 

2.2 Pillar 2: the corporate responsibility to respect human rights

 

2.2.1 Foundational principles

Guiding Principles 11 to 15

Business activities generate investment, jobs and economic growth, but they can sometimes have undesirable side-effects too. The Federal Council expects companies to exercise human rights due diligence.

Under the UN Guiding Principles, respecting human rights is a general standard of conduct that all business enterprises are expected to meet wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their human rights obligations. The responsibility of business enterprises to respect human rights refers to internationally recognised human rights

 

2.2.2 Operational principles: human rights due diligence

Guiding Principles 16 to 21

Pillar 2 of the UN Guiding Principles focuses on human rights due diligence. This process should include (1) identifying risks and possible and actual impacts, (2) taking measures to mitigate risks, (3) verifying effectiveness of these measures, and (4) reporting on the action taken and the risks identified. This is the most important mechanism for preventing human rights abuses. Business enterprises must seek ways to prevent or mitigate adverse human rights impacts which are directly linked to their business operations, products or services, even if they have not contributed to these impacts.

 

Measure 23: Evaluation of implementation of the UN Guiding Principles by business enterprises

The federal government aims to review the progress made by companies in implementing the UN Guiding Principles and, in particular, in respect of human rights due diligence. This external evaluation will be carried out in tandem with the review of the implementation of the OECD Due Diligence Guidance provided for in Measure 16 of the 2020–23 CSR Action Plan. These evaluations, which will also consider action taken by umbrella organisations and trade associations, should generate a clearer picture of the challenges posed by the implementation of the UN Guiding Principles.

Objective Indicator Responsibility
Review progress on the implementation of the UN Guiding Principles among business enterprises based and/or operating in Switzerland. Publication of external evaluation findings on the implementation of the UN Guiding Principles by business enterprises. FDFA [Federal Department of Foreign Affairs],

EAER [Federal Department of Economic Affairs, Education and Research].

 

Measure 24: Support for industry initiatives

Umbrella organisations and industry associations contribute to the development of industry initiatives. As well as playing a major role in raising awareness and furthering the implementation of human rights due diligence among business enterprises, initiatives led by umbrella organisations and industry associations can provide practical responses to the specific challenges faced by particular sectors. Companies operating in the same sector tend to encounter similar problems but do not have the financial resources or expertise to tackle them single-handedly. Participation in industry initiatives can help companies, especially SMEs, to widen their sphere of influence.

 

Measure 29: Public-private partnerships to promote respect for human rights in the value chain

The federal government supports a project to promote human rights due diligence with a view to preventing the exploitation of Syrian refugees and migrant workers in neighbouring countries (Turkey, Lebanon, Jordan). The aim is to strengthen the contribution that business enterprises make to providing decent work opportunities and combatting exploitation in the textile, agricultural and construction sectors in these countries.

 

Measure 30: Guides and tools to implement the UN Guiding Principles

Most business enterprises use certification and private labels (e.g. UTZ, Fairtrade, and amfori/BSCI) as a means of ensuring compliance with social and environmental standards along the entire value chain. The federal government intends to help businesses identify which certifications meet the human rights due diligence standards under the UN Guiding Principles.

In response to Recommendation 11 of the Background Report on Commodities, the Swiss government worked with a multi-stakeholder group (cantons, civil society and the private sector) to draw up a best practice guide for the commodity sector. ‘The Commodity Sector – Guidance on Implementing the UN Guiding Principles on Business and Human Rights’, which was published in November 2018, provides companies working in this sector with practical advice on exercising due diligence along their value chains. Measures, including awareness-raising events and practical workshops, will be put in place to disseminate and promote its application.

The OECD has also produced a series of guidelines for companies that contain practical recommendations on the adoption of due diligence along their value chains. In May 2018, it published guidance for companies of all sizes that are exposed to risks in their value chains, irrespective of the sector within which they operate. Other guidelines are aimed at specific sectors such as the agricultural, financial and textile sectors.

Many international guides and tools are already available. The federal government will explore the possibility of translating some of these into the national languages to enable them to be adapted and implemented in Switzerland. The complex nature of these guides means that some companies, especially SMEs, may find it difficult to put them into practice. Easy-to-use online interactive tools could provide a starting point for SMEs. The Swiss government will develop instruments that enable SMEs to carry out risk assessments and identify measures. They also could provide the basis for an assessment of the action needed to improve human rights due diligence.