In a report submitted to the UN Human Rights Council in 2010 on the issue of human rights and transnational corporations and other business enterprises, John Ruggie (Former Special Representative of the UN Secretary General) stated that: “[t]he worst corporate-related human rights abuses occur amid armed conflict over the control of territory, resources or a government itself – where the human rights regime cannot be expected to function as intended and illicit enterprises flourish”. (A/HRC/14/17)
The UN Guiding Principles on Business and Human Rights (UNGPs) recognise that business activities in conflict-affected and high-risk areas increase the risks of enterprises fuelling conflict. International humanitarian law applicable to business in conflict-affected areas include, for instance, the Geneva Conventions and their Additional Protocols, and The Arms Trade Treaty.
Business may contribute to, or facilitate, human rights abuses committed by other actors, such as security forces or armed non-state actors. For instance, tin, tantalum, tungsten, and gold are metals found in most household electronic appliances. However, they are often mined in conflict areas, such as Eastern Democratic Republic of Congo, and have consequently earned the term ‘conflict minerals’. The purchase of conflict minerals contributes to human rights violations including summary executions, forced labour, rape, and finances armed rebel groups who contribute to ongoing violence in the region. (Human Rights Watch Report, The Curse of Gold). In 2013, internally displaced farmers in Colombia faced killings, intimidation, threats, and further forced displacement from paramilitaries, when trying to reclaim their land, where oftentimes paramilitaries acted on behalf of businesses seeking to evict rightful landowners. (Human Rights Watch Report, The Risk of Returning Home). Companies have also been accused of being complicit with military dictatorships by enabling the torture and disappearance of trade union members and workers, including in Brazil and Chile. More recently, a number of multinational corporations have been sued for allegedly aiding and abetting “terrorist operations against Americans in Iraq”. In other cases, shipping companies have also contributed to human rights abuses in conflict-affected regions by transporting weapons, including in breach United Nations sanctions. For instance, in 2016, Egyptian authorities discovered more than 30,000 rocket-propelled grenades in a ship that set sail from North Korea, with a North Korean crew, but flew a Cambodian flag under the “flag of convenience” doctrine, a tactic intended to avoid international attention. The cargo was destined for Egyptian buyers. According to the United Nations, this was “the largest seizure of ammunition in the history of sanctions against the Democratic People’s Republic of Korea”. It is also important to note that conflict can result in higher levels of violence against women and girls, including arbitrary killings, torture, sexual violence and forced marriage. Women and girls are primarily and increasingly targeted by the use of sexual violence, including as a tactic of war. While women and girls are in general more predominantly subject of sexual violence, men and boys have also been victims of sexual violence, especially in contexts of detention. (United Nations OHCHR).+ Read more
UN Guiding Principle 7, highlights the importance of supporting business respect for human rights in conflict-affected areas. It specifies that:
“States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:
(a) Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
(b) Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
(c) Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
(d) Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.”
Furthermore, Commentary to UNGP 7 outlines that States can play an important role in guiding responsible businesses to “avoid contributing to human rights harm in these difficult contexts”. It emphasises “the risk of sexual and gender-based violence, which is especially prevalent during times of conflict”. It addresses the problem of ineffective ‘host’ State human rights protection in the context of operations by transnational corporations by calling on ‘home’ States to assist “both those corporations and host States to ensure that businesses are not involved with human rights abuse”. Finally, ‘home’ States may “achieve greater policy coherence” and provide more effective assistance to businesses by fostering “closer cooperation among their development assistance agencies, foreign and trade ministries, and export finance institutions in their capitals and within their embassies, as well as between these agencies and host Government actors”.
Additionally, Commentary to Guiding Principle 23 notes that “[s]ome operating environments, such as conflict-affected areas, may increase the risks of enterprises being complicit in gross human rights abuses committed by other actors (security forces, for example)”.
Documents, such as the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas and its Supplement on Gold and the UN Global Compact Guidance on Responsible Business in Conflict-Affected and High Risk Areas, also address the increased risks for business enterprises operating in conflict areas, and provide guidance to help companies prevent or mitigate the risk of contributing to human rights abuses.
Some governments have undertaken efforts to provide and promote adequate guidance to business operating in conflict-affected areas, while many others remain reluctant and ill-equipped to do it in a meaningful manner. Examples of efforts include: support for the Voluntary Principles on Security and Human Rights, requiring companies to comply with the International Code of Conduct for Private Security Providers’ Association (ICoCA), and promotion of supply chain due diligence guidelines.
The European Union has adopted the Conflict Minerals Regulation to establish “a Union system for supply chain due diligence in order to curtail opportunities for armed groups and security forces to trade in tin, tantalum, and tungsten, their ores, and gold.” The Regulation will come into full force across EU countries on 1 January 2021.
As of April 2017, the Securities and Exchange Commission (SEC) has suspended the requirement under section 1502 of the Dodd-Frank Act (the conflict minerals rule) that companies using gold, tin, tungsten, and tantalum report on whether those materials came from the Democratic Republic of Congo, or an adjoining country, pending further internal investigation. If found, the section obliged companies to perform a due-diligence review of their supply chain to determine whether their purchases are funding armed groups in the region. Companies were also required to report publicly on their due diligence findings and submit their reports to an independent audit. (Public statement on the Conflict Minerals Rule). The suspension followed from a court ruling which found that the Conflict Minerals rule “violate[s] the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have ‘not been found to be “DRC conflict free.”(National Association of Manufacturers v. Securities Exchange Commission).
Conflict-affected areas are of direct relevance to SDG 16 (Promote just, peaceful and inclusive societies). Many conflict-affected and post-conflict countries encounter a number of capacity issues that prevent them from effective implementation of SDG 16, such as access to justice and rule of law (SDG 16.3). The role of business in regard to SDG 16 can be crucial as, for instance, conflict-affected areas are often rich in valuable natural resources. Thus, business respect for human rights in this context is critical.
16) Peace, Justice and Strong Institutions
What National Action Plans say on Conflict-affected areas
Action point 22
Encourage responsible supply chain management with a sector-wide approach
The NAP describes several tools of the OECD, including “OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas,” which the federal government seeks to engage with through the Belgian NPC.
Pillar 1: The State Duty to Protect Human Rights
Strand 1: Training in the Field of Business and Human Rights
Action Point 1.2 (page 30)
The Under-Secretariat of Human Rights of the Ministry of Justice and Human Rights will: …
- Promote the introduction of contents about business enterprises and human rights in training sessions held by the Armed Forces and the Order and Security Forces, when relevant, according to the trainees’ profiles…
Additionally, the participation of the business sector in the coordinated implementation of the stabilization policy will be an important challenge in order to consolidate the culture of legality in areas affected by poverty, the presence of illegal economies, institutional weakness and generalized violence. It is clear that the presence of the business sector in certain areas of the country, accompanied by the institutional presence of the State, should contribute to improving the living conditions of people in the rural areas most affected by violence, thus helping to close the gaps and achieve greater equity and inclusion, particularly in the most remote and unprotected areas.
On the other hand, an additional challenge is the already existing circumstances of violence in the territory, which have affected business activity. The Government has even taken measures to benefit those corporations that have been affected by the violence in Colombia, which is evidence of the existence of this problem.
In the situation caused by Covid-19, violations have been denounced due to massive layoffs, the non-adoption of biosecurity measures for workers, public health effects on specially protected groups such as indigenous people, the worsening of violence in some sectors of the country and informality.
VIII. FUNDAMENTAL PILLARS
i. Fundamental Pillar 1: The State’s obligation to protect human rights
Strand 6 [Eje nº 6]: In areas affected by violence, provide guidance and assistance to companies in order to promote the promotion and guarantee of human rights
- The Observatory of the Presidential Advisory Office for Human Rights, together with the National System for Human Rights and International Humanitarian Law, will be responsible for identifying areas where there is a possible impact on human rights. Once this analysis has been carried out, the Business and Human Rights area, together with business associations and local authorities, will train companies on the UN Guiding Principles on Business and Human Rights.
- The Ministry of Environment and Sustainable Development will develop tools to prevent human rights violations related to socio-environmental conflicts by strengthening Regional Environmental Dialogue Centres and providing guidance to affected communities.
Strand 8 [Eje nº 8]: Participation strategies for people in the reintegration process, as well as initiatives that strengthen the stabilisation and consolidation of the country
- The Agency for Reintegration and Normalisation will disseminate the strategy for the participation of people in the reintegration process in the business, productive and peacebuilding spheres.
- The Agency for Reintegration and Normalisation will encourage the public and private business sector to involve people in the reintegration and reincorporation processes.
- The Presidential Advisory Office for Stabilisation will formulate and implement a policy document containing a human rights approach for the participation of the public and private business sector in the stabilisation and consolidation of the country.
- The Unit for the Attention and Integral Reparation of Victims (UARIV) will implement a strategy in which companies are linked through their social management, social architecture or Corporate Social Responsibility (CSR) in the creation of income-generating opportunities for victims affected by violence.
- The Unit for the Attention and Integral Reparation of Victims (UARIV) will implement strategies with international cooperation actors, the social sector and the private sector that contribute to productive inclusion, recovery of historical memory, peace-building, reconciliation, promotion of human rights and reconstruction of the social fabric of the victims of violence.
The Czech NAP has a chapter dedicated to Trade in military equipment, which does not explicitly address conflict-affected areas, but states
Trade in military equipment [page 18-20]
“…non-profit organisations such as Amnesty International continue to criticise the Czech Republic for exporting weapons to “high-risk countries”.
“Current state of play: …
- The Czech Republic participates in a number of international schemes to regulate the arms trade. In particular, it is party to the Arms Trade Treaty (ATT), which provides that if there is a clear risk that the conventional arms to be exported might be used in the commission of serious violations of international humanitarian law, export will be denied. …
- Hold regular meetings between the Ministry of Foreign Affairs, the Ministry of Industry and Trade and the non-governmental sector on issues of transparency and human rights in trade in military equipment.
Coordinators: Ministry of Industry and Trade, Ministry of Foreign Affairs
- Offer all necessary cooperation and assistance to the Parliamentary Subcommittee on Acquisitions of the Ministry of Defence, Trade in Military Equipment and Innovations of the Armed Forces of the Czech Republic so that regular assessments can be carried out of the human rights risks posed by export licences and by military equipment exports that have been made.
Coordinators: Ministry of Industry and Trade, Ministry of Foreign Affairs
Supply chains and conflict minerals [page 20-21]
“Increasing attention is being paid to safety conditions at work (e.g. the use of slave and child labour in mining). Risks of this type are particularly serious in areas plagued by armed conflict, which can be attributed to the absence of state authority here. …
Current state of play:
- At EU level, a regulation on “conflict minerals” has been adopted in order to standardise procedure in all EU Member States. …
- The Czech Republic was involved in the consultation and approval of OECD recommendations on the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. The Ministry of Industry and Trade IS now considering how they can best be implemented in the Czech Republic. …
- Establish one or more competent bodies responsible for the application, in the Czech Republic, of Regulation (EU) 2017/821 of the European Parliament and of the Council 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, and notify that body (those bodies) to the European Commission.
Coordinator: Ministry of Trade and Industry
Deadline: 9 December 2017”
Pillar II, Scope and content of the obligation to respect human rights [page 31]
“…some businesses may face conflict with other rights and principles specific to a particular country or industry. For the sake of example, a manufacturer of military equipment should not supply goods to a regime if there is a deep-seated suspicion that they will be used against civilians, and should not make instruments of torture.”
Appendix 1, GP 7
State Duty to Protect [page 30]
“Supporting business respect for human rights in conflict-affected areas.
Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:
a) Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
b) Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
c) Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
d) Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.”
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 30]
“The Danish development assistance generally contributes to the promotion of human rights in conflict areas. In conflict areas it is often difficult to work closely with the host country, because local authorities do not always have sufficient capacity to monitor and legislate. The Danish efforts in fragile states include support for building institutional framework.” …
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 30]
“The Danish Government has provided financial assistance to the OECD Proactive Agenda work which has a specific focus on conflict-affected areas. For more information see http://mneguidelines.oecd.org/proactiveagenda.htm.”
The Finnish NAP makes reference to conflict-affected areas in terms of conflict minerals and supply chains.
1 The state obligation to protect human rights
1.3 Activities in the EU [page 17]
“The international interest in raw materials is increasing. Whilst the materials may be used as a resource supporting development, there is also a risk of ambiguities related to the funds received from raw materials and/or the funds being used to support conflicts. The European Commission has made a proposal to establish a due diligence system for the union based on a spontaneous declaration by the responsible importers of certain minerals originating in conflict zones and high-risk areas.
The Commission proposal has taken into consideration both the OECD Guidance for mineral purchasing in conflict zones as well as the OECD and UN guidelines more generally related to responsible supply chain management. The proposal is currently being discussed on the national level. Finland actively participates in the discussion of the proposal in the Council working group. …
As a follow-up measure, the working group proposes that
- Finland actively participate in the discussion of the proposal for a regulation on conflict minerals and in the discussion for the development of practices for responsible supply chains in the raw material sectors.
Principal responsible party: Ministry for Foreign Affairs, continuous activities.”
I – The State’s Obligation to Protect Human Rights
The International Framework
3. The Organisation for Economic Co-Operation and Development (OECD) [page 14]
… Lastly, France finances actions supporting the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. It is also very active in the working group developing a guide for the textile industry, following the recommendations of its NCP in this field.
The European Framework
7. The European Union (EU) [page 18]
… Following the proposal for a European regulation on the traceability of minerals from conflict zones,6 France supported an ambitious draft regulation on responsible supply chains for minerals in conflict zones and high-risk areas. The regulation on due diligence for conflict minerals was approved at a plenary session of the European Parliament in March 2017, following the political understanding announced by the Council in June 2016. France will work to ensure that it is correctly implemented and quickly evaluated so it can be reinforced if necessary …
The National Framework
13. The Role of Public Agencies
Actions Underway [page 30]
- COFACE Government Guarantees and the Ministry of the Economy and Financeare currently examining whether to implement an IT module widening the scope of checks, to highlight at-risk industries or countries in the short, medium and long term. This would make it possible to check compliance with the UN Guiding Principles by reviewing all credit insurance operations and assessing human rights risks.
15. Economic Sectors and Human Rights [page 31]
Not only must the authorities promote and raise awareness of CSR standards, they must also require extra vigilance with respect to high-risk economic sectors, geographic areas and products.
The Extractive Sector [page 34]
- France helps monitor and finance the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. This document is an international reference in the field of good practices for businesses seeking to identify and manage non-financial risks in their mineral supply chains (funding for armed groups and terrorism, human rights abuses, child labour, corruption, etc.).
- France is also active at the EU level. For example, it took part in negotiations on the Conflict Minerals Regulation, which concluded on 22 November 2016. It played a key role in pushing through the adoption of Chapter 10 of the Accounting Directive of 26 June 2013, which requires companies in the extractive sector to report all payments to governments in the countries they operate in, broken down by country and by project. France was one of the first European countries to transpose this requirement.
- France raises awareness among French businesses of their due diligence obligations with respect to mineral supply chains as set out in relevant regulatory initiatives (the OECD Due Diligence Guidance, the EU Conflict Minerals Regulation and national law on due diligence).
II – Businesses’ Responsibility to Respect Human Rights
- The French Ministry of Foreign Affairs and International Development issues advice for businesses operating in conflict zones and/or high-risk areas.
There is no mention of conflict-affected areas in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
The German NAP contains a section on conflict-affected areas:
2.3 Business activity in conflict zones [page 32-33]
“The UN Guiding Principles attach particular priority to assisting enterprises in respecting human rights in areas torn by conflicts. One characteristic of such areas is an especially high risk of serious human rights violations resulting from the frequent total absence of state structures. The Federal Government therefore considers that it has a responsibility to try to ensure that German enterprises operating in such conditions have no part in any adverse impacts on human rights. Enterprises operating in these conditions are to be supported whenever they are able, through their investments and business activities, to contribute to the stabilisation and development of such areas. In fragile or war-torn countries, there is often a danger that trade in raw materials is cornered by destabilising players, who will use it for their own ends and thereby fuel existing conflicts. Importance therefore attaches not only to international commodity diplomacy but also to local contributions in cases where specific interests are affected by the exploitation of raw materials.”
The current situation
“An important contribution to these efforts is being made by the deliberations, which Germany is backing, on what are known as ‘conflict minerals’, an intense discussion being conducted within both the OECD and EU frameworks. In 2011, the OECD published a guide to corporate responsibility along supply chains in which minerals from conflict zones are traded and handled. The guide, entitled OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, has also been available in German since 2015. The primary aim of the Guidance is to curb the funding of armed conflicts from the proceeds of trade in raw materials; in addition, compliance with its recommendations would help to prevent serious human rights violations, especially child labour.
The European Commission has presented a proposal for a regulation setting up a Union system for supply chain due diligence self-certification of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. Based on the aforementioned OECD guide, the Commission’s draft regulation would establish a voluntary undertaking to observe due diligence rules within supply chains when importing the minerals referred to above so as to ensure that proceeds from their sale are not used to fund armed struggles in conflict zones or other high-risk areas. The European Parliament, on the other hand, expressed itself in favour of a binding instrument for downstream operators, that is to say along the whole value chain. A basic compromise has now been reached between the European Parliament, the Council and the European Commission on a binding instrument focused on the upstream area, i.e. the supply chain. Further details will now have to be negotiated in the context of the trialogue conducted by the EU institutions.
In the quest for targeted improvements in the protection of human rights, the Federal Government is sponsoring a research project that is being conducted by the German Institute for Human Rights. Through the project, selected national human rights institutions in countries with which Germany engages in development cooperation are strengthened in their work in the raw materials sector. In the framework of technical cooperation, human rights analyses are being conducted in the Andean countries. Human Rights Risks in Mining – A Baseline Study, presented by the Federal Institute for Geosciences and Natural Resources at the beginning of 2016, contains an in-depth analysis of the impact of mining on human rights. In addition, the Federal Government is promoting conflict-sensitive management of natural resources, particularly in Africa (Mali and the Democratic Republic of the Congo), in a project in which representatives of government, the private sector, civil society and affected populations are brought together in a dialogue with a view to reconciling their diverse interests in a participative and conflict-sensitive framework.”
- “The Federal Government is pursuing the aim of preventing the use of proceeds from the sale of tin, tantalum and tungsten, of their respective ores and of gold to fund armed struggles in conflict zones and other high-risk areas. It is committed to the establishment of binding due diligence rules, which should be proportionate and should not entail unnecessary red tape, particularly for small and medium-sized enterprises.”
Section 2: Current Legislative and Regulatory Framework
Supply Chain [page 15]
“The Government supports the proposal by the European Commission for an EU Council Regulation which provides for the establishment of an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. The main objective of this proposal is to help reduce the financing of armed groups and security forces through mineral proceeds in conflict-affected and high-risk areas by supporting and further promoting responsible sourcing practices of EU companies. Of course, supply chain diligence is not limited to the extractive industries and areas of conflict.
Annex 1 – List of additional and ongoing actions to be carried out across Government
EU and Multilateral Efforts [page 20]
“6. Support the implementation of the Regulation establishing an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas.”
Trade and Investment [page 21]
“18. Provide advice to business enterprises of the possible risks of human rights situations when operating in conflict affected areas.”
I. Guidelines and General Principles
“So far the second NAP-BHR also incorporates the recommendations received during the third cycle of the Universal Periodic Review, relating to efforts – in terms of policies, legislative and administrative measures – to prevent and manage the obvious risk of companies’ involvement in human rights violations in conflict situations, and to support companies in better implementing legislative measures to combat labour exploitation in the agricultural sector” (p.8)
III. Expectations towards Business Companies
“In this area it is important to mention:
– the implementation of the Regulation (EU) 2017/821 on “conflict minerals”: the Regulation entered into force on 1 January 2021 and Legislative Decree No. 13 of 2 February 2021 provides for its adequate domestic implementation”” (p. 12)
IV. Italian ongoing activities and future commitments
Responsible Conduct and Due Diligence in the framework of the United Nations, OECD and European Union
“At the European level, the adoption of Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 establishing supply chain Due Diligence obligations for Union importers of tin, tantalum and tungsten, minerals and gold, originating in conflict or high-risk areas, has recently led EU Member States to take action to adapt their legal and regulatory systems to introduce this new obligation for Union importers” (p. 44)
Internationalization of companies
“Italy acknowledges an enhanced attention to the respect of human rights in areas affected by armed conflict, where their promotion can be an essential tool to prevent conflict and rebuild more stable and peaceful societies. On this basis, and with specific reference to minerals from areas affected by conflict or at high risk – in particular in the gold sector – Italy has performed best practices through awareness campaigns and training activities in line with the OECD Guidelines on Due Diligence, as well as the relevant EU regulations. In addition, again with reference to responsible trade in minerals, Regulation (EU) 2017/821 of the European Parliament and of the Council was adopted in 2017. This established supply chain Due Diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold, originating in conflict or high-risk zones. It has been transposed into Italian law through Legislative Decree No. 13 of 2 February 2021, which establishes Due Diligence obligations in the supply chain for Union importers of tin, tantalum and tungsten, their ores, and gold, originating in conflict or high-risk areas.” (p. 52)
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“37. Fully implement Regulation (EU) 2017/821 establishing supply chain Due Diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold, originating in conflict or high-risk areas.
38. Further promote awareness of the OECD Guides on Due Diligence for Companies Operating in Weak Governance Zones (the “Risk Awareness Tool for Multinational Companies in Weak Governance Zones” and the “Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas”).
39. Include respect for human rights by businesses through specific projects designed and developed through the Italian Agency for Development Cooperation in areas of armed conflict (or high risk) that include awareness raising and capacity-development activities.
40. Strengthen the action of the Italian Cooperation on gender equality, including through support to the economic development of women in post-conflict situations in line with the three UN Pillars (peace and security, development and human rights) and in the context of the legislative and programmatic framework of UN Security Council Resolution 1325 “Women, Peace and Security” and Fourth National Action Plan on Women, Peace and Security adopted by Italy in 2020.” (p. 67)
ANNEX 2 – Summary of the Results of the Assessment concerning the Implementation of the first PAN BHR
“2. What are the good practices adopted by stakeholders, in line with the measures of the first NAP BHR?
Two further relevant aspects also emerged: typical conditions of countries at high risk, depending on the introduction of strict contractual clauses for trade transactions in such contexts – also in line with Regulation (EU) 2017/821 on minerals from “conflict or high risk areas”; the obligation of Due Diligence in relation to the import of minerals.” (p. 70)
‘Japan’s NAP does not explicitly address this issue’
The Kenya NAP makes no reference to Conflict-affected areas
The Lithuanian NAP makes no reference to conflict-affected areas.
Part II: Specific objectives of the National Action Plan 2020-2022
1. The state duty to protect human rights
1.10. Preparation of the implementation in Luxembourg of the EU regulation on conflict minerals
The legislative challenge in 2020 is to create a regulatory framework to implement the EU Conflict Minerals Regulation. Indeed, the regulation on minerals from conflict zones will enter into force on January 1st 2021. It will be essential to involve the various stakeholders (business and civil society), and in particular those represented in the Business and Human Rights Working Group, in the reflection on the implementation of the Regulation. In this context, it should also be recalled that the government was invited by a motion of the Chamber of Deputies, in the context of the vote on the Public Procurement Act in April 2018, “to ensure that public procurement in the future incorporates the due diligence criterion at the level of metals affected by Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 (tantalum, tin, tungsten, gold).”
|Objectively verifiable indicators||× Benchmark: NAP 1|
|Verification sources||× NAP 1 Implementation Report
× Follow-up in the Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »]
|Expected results||× Raising awareness among stakeholders
× Implementation of the Regulation according to the timetable indicated
× Predictability and legal certainty, especially for businesses
|Implementation timeline||Depending on the entry into force of the Regulation|
|Means of implementation||× MAEE (Ministry of Foreign and European Affairs), Directorate for European Affairs and International Economic Relations|
The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.
‘The Mexico NAP does not explicitly address this issue’
The only mention of conflict in the Dutch NAP is in relation to conflict minerals and OECD guidance.
3.1 An active role for the government
The OECD Guidelines Proactive Agenda [page 15]
“A multi-stakeholder approach to conflict minerals has proved highly successful in preventing funds being channelled into the civil war in the DCR.”
3.3 Clarifying due diligence
Raising companies’ awareness [page 23]
“As mentioned above, the OECD has published a guide on responsible supply chains for conflict minerals and is working on a guide for responsible investment in agriculture supply chains.”
Section 2.3: State ownership and practice for supporting the business sector
Responsible management [page 23]:
Another criterion concerns serious violations of individual rights in war or other conflict situations. In 2014, the council reviewed a number of cases of human rights violations in connection with extraction of natural resources, agriculture, food production and textile manufacturing.It follows from the mandate from the Ministry of Finance to Norges Bank that in certain cases the GPFG is prevented from investing in government bonds. The GPFG is not a foreign policy instrument, and only in special cases of comprehensive international sanctions or measures that Norway has endorsed, has such restrictions been imposed on investing in government bonds.
Section 2.6 Human Rights in Conflict Areas
Companies themselves have a responsibility to identify serious risks connected with areas that have been or are affected by conflict. There is an increasing demand from the business sector for dialogue and cooperation with the public authorities on security, risk assessment and corruption in conflict areas and demanding markets in these areas. The Ministry of Foreign Affairs is the contact point for companies in matters of security abroad.[paragraph 1, page 26]
…the same section lists measures undertaken or planned by Norway regarding conflict affected areas [page 26], which include: “Strengthen the dialogue with the business sector through the missions abroad on the risks associated with human rights violations, security concerns and corruption in conflict areas.
Section 3.2 Responsible Business Conduct [page 32]:
Political unrest and conflict entail a particularly high risk of human rights abuses. Companies that operate in such areas should therefore exercise particular due diligence if they are to avoid becoming involved in such abuses. A typical example is abuses perpetrated by security personnel hired to protect the company. There is also a higher risk of corruption, illegal transactions, sexual abuse and other forms of violence against civilians.
Compliance with Legislation [page 36]:
In some geographical areas, such as conflict-affected areas, a company may unintentionally enter into a business relationship with an enterprise, such as a security company, that is guilty of gross human rights abuses. In such a situation, the Norwegian company should be aware that this may have legal consequences such as liability. The Norwegian Penal Code of 2005, which entered into force on 1 October 2015, also applies to certain punishable offences committed on behalf of an enterprise registered in Norway when the offence is also punishable under the law of the country where it has been committed.
Responsibility to Respect Human Rights page 31]:
In cases of armed conflict companies should respect the standards laid down in international humanitarian law.
CHAPTER 4: State Expectations of Business Enterprises (page 40)
‘To facilitate and guide business enterprises in ensuring compliance with and supporting the effective implementation of the NAP priority areas and the UNGPs, the State of Pakistan expects business enterprises to:
13. In addition to the UNGPs, be cognisant of and guided by international guidelines and principles such as the […] OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas […]’
2017-2020 NATIONAL ACTION PLAN
Pillar II: The corporate responsibility to respect human rights
10. Planned and ongoing activities [page 37]
“(…)3. Increasing the involvement of foreign institutions in issues related to human rights and business, including local laws and enterprise operations in Poland, with a view to exercising human rights, with particular regard to the situation of armed conflicts”.
2021-2024 NATIONAL ACTION PLAN
|5. Ministry of Finance
Implementation of the Good Practice Catalogue on due diligence for European Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas
On 1 January 2021, new obligations took effect as regards supply chain due diligence for EU importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. These obligations were established by Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017.. The provisions of the above-mentioned Regulation are aimed at ensuring that minerals and metals from the so-called ‘3TG’ group (Tin, Tantalum, Tungsten, Gold) introduced into the EU will not finance conflicts or result in human rights violations.
To this end, good practices are being introduced. They comprise in particular:
Undertaking cooperation with the Entrepreneurship Support Department of the Polish Agency for Enterprise Development as well as the CSR and Cooperation with NGOs Unit in the Minister’s Office in the Ministry of Development Funds and Regional Policy in order to reach a wide range of entrepreneurs who are subject to the obligations under aforesaid Regulation. Due to this cooperation, an even greater number of entrepreneurs receive information/training materials (e-learning), in the area of ‘conflict’ minerals. – page 24
11. Ministry of Foreign Affairs
Authorisation to export arms and military equipment
The Security Policy Department of the Ministry of Foreign Affairs will take into account the United Nations Guiding Principles on Business and Human Rights in the course of assessment procedure regarding applications for granting permission to export arms and military equipment, in accordance with Articles 12 and 12 a. of the Act of 29 November 2000 on Foreign Trade in Goods, Technologies and Services of Strategic Significance for State Security and for Maintaining International Peace and Security and Article 88 of the Act of 13 June 2019 on Conditions of Business Activity related to the Production of and Trade in Explosives, Weapons and Ammunition, as well as Products and Technologies to be used for Military or Police Purposes. A criterion taken into account by the Department when assessing applications for the granting of export licences is, inter alia, a risk assessment as to whether the arms to be exported could be used for activities in violation of international humanitarian law or whether the granting of the licence would have a negative impact on respect for human rights. – page 30-31
Promotion of the Montreux Document on Private Military and Security Companies and the International Code of Conduct for Private and Military Security Companies
The Ministry of Foreign Affairs plans to undertake activities aimed at promoting among entities contracted to protect Polish diplomatic missions the knowledge and application of both the International Code of Conduct for Private and Military Security Companies and the principles laid down therein, as well as the Montreux Document on Private Military and Security Companies, an intergovernmental document aimed at promoting respect for international humanitarian law and human rights by private military and security companies, especially when they are present in armed conflicts. – page 31
Appendix 2 (information of the Ministry of Foreign Affairs)
GOOD PRACTICE CATALOGUE FOR FOREIGN MISSIONS IN THE FIELD OF BUSINESS AND HUMAN RIGHTS
– in justified cases, consult the planned activities with renowned specialised law firms, especially in countries where business activities are at risk due to the lack of transparent laws or particularly difficult conditions related to, for example, armed conflict;
– provide Polish enterprises operating in the host country with information and advisory assistance to support them in ensuring respect for human rights in areas affected by armed conflict. – page 48
Principle 7 – Conflict-affected areas
For the time being, in conflict-affected areas, Slovenia provides humanitarian aid only in the form of donations to international organisations. Slovenia appeals to all actors involved in conflicts, including economic operators, to respect humanitarian principles and international humanitarian law. (pg. 29)
South Korea’s NAP makes no reference to conflict-affected areas.
Guiding Principle 7
The measures adopted regarding Guiding Principle 7 are incorporated to the obligations corresponding to the State under International Humanitarian Law in situations of armed conflict and in accordance with International Criminal Law and, in particular, those derived from signing of the Rome Statute of the International Criminal Court. In this context, it should also be noted that Spain is part of the Montreux Document on the relevant legal obligations and good practices of States with regard to the operations of private military and security companies during armed conflicts.
“The Government, through its representations abroad, will inform companies about the risks involved in their business activities and relationships, especially in areas affected by conflicts.”
“Within the framework of the implementation of the II National Action Plan on Women, Peace and Security, the Government will develop tools and action guides directed to companies on how to address the risk of sexual violence and gender violence in conflict situations.”
“The Government undertakes to include clauses on respect for human rights when contracting private military and security services in accordance with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Official Officials (1990), the Code of Conduct for Law Enforcement Officials (1979) and the Arms Trade Treaty (2013).”
“The Government will promote the application of the OECD Due Diligence Guide for Supply Chains Responsible for Minerals in Conflict or High Risk Areas.”
“The Government will participate in multilateral efforts aimed at improving the prevention, mitigation and remedy of situations in which companies are involved in serious human rights abuse.”
2 The corporate responsibility to respect human rights [page 13]
“The Government’s clear expectation is that companies operating in Sweden or abroad respect human rights in all their activities. This means that their business activity should not cause, contribute or be linked to human rights abuses, not least in conflict-affected areas, and that they should act to prevent such abuses. Similarly, they should address adverse human rights impacts with which they are involved.”
Annex: Measures taken [page 22]
The State as actor
- “The conduct of companies in relation to armed conflicts is highly relevant to respect for human rights. Sweden has proposed sharper formulations in the draft regulation on responsible trade in minerals from conflict areas that is currently being discussed in the EU. In other words, we consider it should be mandatory for importers from particularly problematic countries to obtain certification. Sweden is carrying out awareness-raising activities on this issue and supports the OECD’s work on how companies are to identify risks in the supply chain and avoid trade in conflict minerals (OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas).”
Annex: Measures planned [page 27-28]
How can the State support the business sector?
- “At Swedish embassies, knowledge about CSR and the UN Guiding Principles on Business and Human Rights will be enhanced through training initiatives. Embassies should use their local networks for Swedish and other companies, government agencies, trade unions and NGOs for support, cooperation and dialogue on how best to respect human rights. Embassies should be prepared to capture information about potential problems related to human rights and Swedish companies, especially in conflict-affected countries.”
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
Guiding Principles 1 to 3
2.1.2 Operational principles: legislative and information policy measures
Measure 2: Security and human rights
The federal government should ensure that business enterprises which are subject to the Federal Act on Private Security Services Provided Abroad (PSSA) meet their human rights obligations. The PSSA prohibits security firms based in Switzerland from participating directly in hostilities in the context of an armed conflict, and from engaging in activities that could facilitate human rights abuses.
Switzerland and the ICRC [International Committee of the Red Cross] were the driving force behind the Montreux Document on private military and security companies.17 The purpose of the intergovernmental document is to promote respect for international humanitarian law and human rights by private military and security companies (PMSCs) operating in situations of armed conflict.
Measure 7: Reduction in human rights risks associated with gold extraction and trading
Switzerland will continue to support the implementation of OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and other relevant guidelines. As recommended in the above report, it will explore the possibility of granting the Central Office for Precious Metals Control wider responsibilities, including with respect to transparency on the provenance of gold imported to Switzerland.
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. 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.
|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].
Measure 14: Advisory and support services provided by Swiss representations abroad
Swiss representations abroad are well placed to raise awareness of human rights issues among businesses and provide country-specific advice. A number of representations in conflict-affected areas have developed innovative initiatives based on the UN Guiding Principles – largely on an ad hoc basis –to promote respect for human rights by Swiss business enterprises. The federal government will involve Switzerland’s representations abroad more closely in its efforts to raise awareness of and provide support for the implementation of human rights by business enterprises. Such efforts may include training and awareness-raising for embassy staff, encouraging the sharing of experiences between representations and with the relevant federal agencies in Bern. …
Measure 21: Support for UN bodies in charge of promoting the UN Guiding Principles
The federal government will continue to lend political and financial support to the UN Working Group, the Office of the UN High Commissioner for Human Rights and the annual UN Forum on Business and Human Rights in Geneva. It will work with these bodies on several projects that: …
– clarify the practical steps that States, business enterprises and investors should take to prevent and combat business-related human rights abuses in conflict and post-conflict situations;
Taiwan’s NAP does not explicitly cover this issue.
3.The core content of the National Action Plan on Business and Human Rights
3.2 Action plan for community, land, natural resources and the environment
3.2.3 Action Plan (2019–2022)
Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)
|Responsible agencies||Time-frame (2019–2022)||Indicators (wide frame)||Compliance with National Strategy/ SDGs/UNGPs|
|2.||Public participation||Consider the establishment of rights protection centres in areas of conflict||– Ministry of Justice||2019–2022||Set up a working group or centre to manage the violation of rights in areas of conflict||– National Strategy for Public Sector Rebalancing and Development
– SDG 11 and 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
‘Uganda’s NAP does not explicitly address this issue’
The UK 2013 NAP states in Actions taken that [page 9]:
“To give effect to the UN Guiding Principles, we have:
(v) taken account of business activity in conflict and fragile states, or countries with high levels of criminal violence, within the Building Stability Overseas Strategy. Companies operating in these difficult environments have an important role to play in contributing to stability, growth, development, prosperity and the protection of human rights. We support the implementation of the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. We will also continue to help develop, and monitor implementation of, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas. The Government will also continue to encourage higher standards in the diamond supply chain.”
The UK 2016 Updated NAP makes direct reference to conflict affected areas in the section The State’s Duty to Protect Human Rights noting that the UNGPs “recommend that states should … Support businesses in conflict affected contexts”. The UK 2016 Updated NAP discusses actions already taken by the Government, which include among others [page 8], taking:
“account of business activity in conflict and fragile states, or countries with high levels of criminal violence, within the Building Stability Overseas Strategy. Companies operating in these difficult environments have an important role to play in contributing to stability, growth, development, prosperity and the protection of human rights. We support the implementation of the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. We will continue to promote implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas.”
Facilitating RBC By Companies [page 17]
“Given the heightened risk of serious human rights impacts in conflict-affected areas, the U.S. government particularly encourages corporate due diligence and reporting under such circumstances.”
Outcome 3.3: Capacity Building and Technical Support to Promote Enabling Environments
New Actions [page 19-20]
“Support for Reducing Land Conflict in West Africa: State is supporting a program to reduce land conflict in Sierra Leone, Liberia, and Guinea by strengthening the capacity of civil society organizations to work on land rights and tenure issues as they relate to the UN Guiding Principles on Business and Human Rights. This program complements USAID’s existing investments in Côte d’Ivoire to support responsible business practices in the process of diamond sourcing, support country compliance with the Kimberley Process Certification Scheme, and stem the flow of conflict diamonds, while improving community land rights.” – Implementing Department or Agency: State
“Stakeholder Engagement in Extractive Industries in East Africa: State is funding a program to promote RBC in East Africa. The goal of the program is to strengthen civil society’s capacity to meaningfully participate in business and human rights initiatives in East Africa and to reduce conflict for communities in the operations of extractive companies.” – Implementing Department or Agency: State
Ongoing Commitments and Initiatives [page 20]
“Dodd-Frank Section 1502: Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) supports regional and international efforts to break the link between conflict and natural resources and prevent armed groups or abusive state forces in the African Great Lakes region from benefiting from the sale of certain natural resources that are sourced from the Democratic Republic of the Congo (DRC) or an adjoining country. Section 1502 requires certain companies to submit annually a description of the measures taken to exercise due diligence on the source and chain of custody of the four “conflict minerals.” Commerce will continue to work with the U.S. Geological Survey to issue annually a list of conflict mineral processing facilities to assist in this reporting and will develop recommendations on ways to improve accuracy and establish standards of best practices. State will continue to provide guidance to help companies ensure that their products and their suppliers’ products do not directly or indirectly finance armed conflict or result in labor or human rights violations. Through the Public-Private Alliance for Responsible Minerals Trade, State and USAID work in partnership with U.S. companies and civil society to support conflict-free sourcing from the DRC and African Great Lakes region.” – Implementing Department or Agency: State, USAID, SEC, Commerce, USGS
Annex II: Key Domestic Executive Orders and Regulatory Efforts [page 28]
“Combating Impunity for International Human Rights Violations: DOJ’s Human Rights and Special Prosecutions Section investigates and prosecutes international human rights violations using several U.S. statutes, including the War Crimes Act, 18 U.S.C. § 2441, and the Torture Act, 18 U.S.C. §§ 2340-2340A. Under these statutes, perpetrators may be held directly or indirectly responsible for specified war crimes or torture committed abroad, including in the course of conducting business, under the circumstances articulated in the statutes.”