Switzerland
Introduction [page 4]
Switzerland is committed to protecting human rights. With this NAP implementing the UNGP, it is contributing towards the respect for human rights by business enterprises also when they operate outside of Switzerland. The report takes stock of current measures and sets out future action to protect human rights in connection with business activities, and to guarantee access to justice for victims of human rights abuses, thereby making it easier to seek remediation.
4. Position of the Federal Council on the UN Guiding Principles on Business and Human Rights
4.2 The Swiss context [page 6]
Economic freedom (Art. 27 Federal Constitution) and freedom of contract are key elements of the Swiss economic order. This economic system is set out in the Constitution and enhanced by elements such as further basic rights and social components (freedom of association and social partnership). Sound frameworks are therefore in place to permit the implementation of labour and human rights in Switzerland. Social partnership and the right to collective bargaining, specifically, are fundamental mechanisms ensuring that the country has good working conditions and a peaceful society. (…)
Article 54 para. 2 of the Federal Constitution (FC) stipulates that the Confederation will engage in foreign relations to promote respect for human rights, in addition to other objectives. Article 35 FC stipulates, among other provisions, that fundamental rights must be upheld throughout the legal system. This covers private, criminal and commercial law. Under Article 35 para. 3 FC, the authorities must ensure that, where appropriate, fundamental rights also apply to relationships between private individuals, and thus also in the private sector. Article 35 para. 3 FC is therefore relevant to international business enterprises that are connected to the Swiss legal system in some way, for example because they have their head office in Switzerland, make use of Swiss Export Risk Insurance services, or fulfil contracts abroad on behalf of the Swiss authorities. However, at present Swiss legislation does not make any provision for business enterprises having to conduct general, legally binding human rights due diligence. The Federal Council nonetheless supports due diligence on a voluntary basis (cf. PI1)”
5. National Action Plan on Business and Human Rights
5.3 Role of the State and of business enterprises [page 10]
With this NAP, the Federal Council recognises the State’s duty to also protect human rights in connection with business enterprises that are based and/or operate in Switzerland, as laid down in the UNGP. The State duty to protect is described in Guiding Principles 1-10, 25-28, 30 and 31. Primary responsibility for protecting human rights lies with the State, not with the corporate sector. The federal government understands its role as being to support business enterprises with the implementation of the UNGP, to create incentives to comply with them, to encourage business enterprises to respect human rights and, where laws exist, to enforce them. The State can employ both binding and non-binding instruments to fulfil its duty to protect. In particular, it can also support and encourage corporate initiatives. The Federal Council views promoting due diligence as a horizontal element of its efforts to implement the UNGP.
5.4 Smart mix as the conceptual foundation
In view of the economic freedom that is guaranteed by the Swiss Federal Constitution26, the federal government fulfils its duty to protect with a smart mix of non-legally-binding and – where necessary – supplementary statutory requirements, with national and international measures. All of these observe the principle of proportionality27. The approach is based on the internationally recognised understanding of the concept of a smart mix28. In other words, the smart mix approach means that States consider a bundle of mutually supportive binding and non-binding measures which influence the human rights consequences of economic activity. The UNGP do not require States to institute regulations outside of their own jurisdictions, but instead give them the discretion to implement their own smart mix in practice.
All in all, the measures instituted by the federal government should guarantee effective protection against abuses of human rights by business enterprises based and/or operating in Switzerland, while keeping the burden on those companies as light as possible.
5 National Action Plan on Business and Human Rights
5.7 Pillar 1: state duty to protect
5.7.1 Fundamental principles
Guiding Principle 1: general duty to protect [page 12]
The Federal Council acknowledges its duty to protect, as laid down in Guiding Principle 1. To fulfil this duty, the federal government will implement a smart mix of appropriate measures.
The duty to protect is based on Switzerland’s existing obligations under international law. The UNGP do not subject the State to any new duties. Rather, they provide more specific detail about how the existing duty to protect human rights applies to the business sector. Of key importance to the UNGP are the UN’s international conventions on human rights32, the fundamental conventions of the ILO, and the relevant provisions of the European Convention on Human Rights.