5. National Action Plan on Business and Human Rights
5.7 Pillar I: state duty to protect
5.7.3 The State-business nexus
Guiding Principle 4 [pages 22-24]
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.
The Federal Council acknowledges its particular responsibility to ensure that federal government associated businesses respect human rights. Federal government-associated businesses should serve as examples of good practice. The Federal Council regards its expectations towards these enterprises as the benchmark that is mentioned in section 4.3 of the Federal Council report in fulfillment of postulate 12.3503 Eine Ruggie Strategie für die Schweiz [‘A Ruggie Strategy for Switzerland’].
The federal government will employ the following policy instruments (PI) to implement Guiding Principle 4:
PI 17 Human rights due diligence by federal businesses and federal government-associated businesses
Relations between government-associated enterprises and the Confederation are described in the federal government’s Corporate Governance Report64. The Federal Council defines its strategic goals for related enterprises every four years. While these goals do not specifically contain criteria for business and human rights, the Federal Council expresses the expectation that related enterprises will pursue a sustainable corporate strategy to the best of their business ability.
In 2017, the federal government will draw up a status report on the fulfillment of CSR in its own activities. This is to cover the federal government’s role as an employer, a purchaser, an investor and as an owner of federal government-associated companies (in accordance with the Federal Council’s CSR position paper, activity B.3.1). This interpretive framework should also highlight any need for action in the future, and where appropriate propose measures to the Federal Council.
PI8 Requirement that business enterprises covered by Swiss Export Risk Insurance (SERV) conduct human rights due diligence
The sustainability guidelines that have existed since 2003 are regularly updated and enhanced by the OECD. Switzerland is also part of this process. The guidelines are intended, among other things, to improve protection against human rights abuses by business enterprises, and they are largely recognised as an international standard by export credit agencies and export insurance providers.
Swiss Export Risk Insurance (SERV) attaches great importance to sustainability and thus also to human rights. The SERV Act and SERV Ordinance have undergone a partial revision, with the changes entering into force as of 1 January 2016. The latest change to the Ordinance expressly set out the insurance applicant’s duty to provide information on human rights66. Unlike many other export credit agencies, SERV does not grant any export credits themselves (known as direct lending), but instead offers only insurance and guarantees (known as pure cover). SERV does not grant cover, neither can it accept any liability in the event of a claim, if the project being supplied or financed by the policyholder does not meet international human rights standards. The revised Ordinance entered into force at the beginning of 2016. In cases of elevated risk, SERV will require applicants to conduct human rights due diligence in the sense of the UNGP and the expectations towards companies that are described in Section 4.3. When deciding whether or not to grant cover, SERV also factors in the findings of investigations made by the National Contact Point for the OECD Guidelines for Multinational Enterprises.
PI19 Human rights due diligence by the authorities in public-private development partnerships
In March 2015, the SDC published guidelines for assessing the risks of partnerships with the private sector. They factor in impacts on human and labour rights, government structures and the environment. The guidelines propose a three-stage due diligence process: first a brief analysis by the SDC, followed by a detailed external analysis, and finally dialogue with the partner. The SDC will not work with partners that have repeatedly been involved in human rights abuses and that cannot make a convincing case that they have substantially reduced human rights-related risks.
In implementing the new guidelines for assessing the risks of public-private partnerships, the SDC works with external partners, which conduct the detailed risk analysis. The SDC also ensures that it does not enter into any public-private development partnerships with business enterprises, which refuse to work with the National Contact Point for the OECD Guidelines for Multinational Enterprises.