Switzerland

5. National Action Plan on Business and Human Rights 

5.7 Pillar 1: state duty to protect [page 30]

Guiding Principle 9 

Guiding Principle 9 relates to economic agreements that the federal government enters into with other States or with business enterprises. Specifically, these include the WTO, bilateral investment treaties, free trade agreements and contracts for investment projects. With these agreements, the federal government should ensure that sufficient domestic policy scope remains to fulfil the human rights obligations of both Switzerland and the contractual partner.

The Federal Council endeavours to ensure that protection for human rights is incorporated by means of consistency clauses into these contractual agreements, and that the contractual partners’ regulatory scope to fulfil their human rights obligations is not restricted. It also runs targeted projects to foster respect for human rights among business enterprises in partner States.

The federal government will employ the following policy instruments (PI) to implement Guiding Principle 9:

PI33 Consistency between free trade agreements and protection for human rights 

The primary aim of free trade agreements is to foster bilateral economic relations, and to improve the economic capacity of the contracting States’ national economies. When negotiating free trade agreements (and investment protection agreements, see below), Switzerland, in the interests of policy coherence supports the inclusion of clauses requiring consistency with human rights, labour and environmental standards. One of the functions of such clauses is to underline the parties’ obligation to comply with the applicable multilateral environmental agreements and International Labour Organization conventions, and to implement them effectively. At the same time, they reference international instruments to protect human rights, and the principles of responsible corporate governance. A further clause in Swiss free trade agreements provides that they may not compromise or challenge existing international law – and therefore also human rights – obligations. When negotiating human rights, labour and environmental law aspects, the competent federal agencies are consulted in the same way as with all other questions.

Free trade agreements, and thus also aspects of relevance to human rights, are monitored via consultation mechanisms, specifically joint committees.

International human rights obligations are implemented primarily by means of the organisations, forums and projects set up for this purpose (including UPRs by the UN Human Rights Council, and the ILO control mechanisms (cf. PI 38, 41, 44 and others)). Switzerland also arranges human rights dialogues, or collaboration on human rights, environmental, labour and employment issues, with selected partner countries.

The Federal Council continues to keep a close eye on international developments in human rights due diligence (referred to as impact assessments).

PI34 Consistency between investment protection agreements and the protection of human rights 

In the interests of policy coherence, Switzerland also advocates the inclusion of consistency clauses when negotiating investment protection agreements (IPA).

In 2012, SECO joined forces with interested federal agencies to draft new provisions that incorporate sustainability aspects into IPAs. These provisions state clearly that the agreements are to be interpreted and applied in a manner consistent with other international obligations incumbent on Switzerland and its partner countries, including those concerning human rights. This ensures that IPAs do not conflict with the protection of human rights. Switzerland has been proposing these new provisions in negotiations since 201293. It is also committed to the application to new IPAs of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, which came into effect on 1 April 2014. In early 2015 an internal government working group was set up to review Swiss treaty practice, with the aim of incorporating the latest developments in international investment protection. The report on its findings was published on 7 March 201694.

The new provisions formulated by the working group are tabled by Switzerland in all negotiations on the revision of existing or conclusion of new IPAs. Switzerland will also continue to track developments in investment protection in the future and, where necessary, review whether or not further amendments to its treaty practices are required.

PI35 Promotion of the UNGP in political consultations, human rights dialogues and specific projects 

In the future, the Federal Council will be even more systematic in addressing the issue of business and human rights in its political consultations and human rights dialogues with relevant States. When preparing these consultations and dialogue meetings, the FDFA consults not only a variety of federal agencies, but also further interested groups such as representatives of private industry and civil society.

The federal government also aims to take on a greater number of specific bilateral projects, as a means of furthering the UNGP. In political dialogue and in strategic partnerships with the governments of partner states, it will discuss situations in which regulations, policies, or other action on the part of the host state make it difficult for Swiss business enterprises to respect human rights.