Corruption is generally defined as the abuse of entrusted power for private gain. It can take many forms that vary in degree, ranging from the minor use of influence, to institutionalised bribery. The Organisation for Economic Co-operation and Development (OECD) notes that corruption can harm democratic institutions, undermine attempts by citizens to achieve higher levels of economic, social and environmental welfare, and impede efforts to reduce poverty. As a result, it has created a full chapter on the topic in its Guidelines for Multinational Corporations (MNCs), to remind enterprises that they have an important role to play in combating these practices.
The UN Guiding Principles (UNGPs) recognise that corruption can undermine access to remedy for victims of human rights abuse. Commentary Principle 25 clarifies that States should ensure that “Procedures for the provision of remedy should be impartial, protected from corruption and free from political or other attempts to influence the outcome”.
Businesses may directly and indirectly adversely impact human rights through corruption in a number of ways. For example, the supply of counterfeit or expired drugs adversely impacts the right to health of vulnerable people (Fletcher and Herrmann; 2012). In 2017, the UK Serious Fraud Office confirmed its investigation of claims that British American Tobacco (BAT) was involved in bribery and corruption in East Africa to obstruct the passing and implementation of tobacco control legislation that helped save millions of lives in the Global North. In Thailand, an International Labour Office report on the country’s fishing sector documented allegations that corruption and complicity by government officials has enabled a human trafficking gang to routinely torture and execute migrant workers who attempt to flee.+ Read more
Corporate capture is another important aspect of the link between corruption, business, and human rights. Corporate capture is defined as “the undue influence that corporations exert over national and international public institutions, manipulating them to act according to their priorities, at the expense of the public interest and the integrity of the systems required to respect, protect and fulfil human rights, and safeguard the environment”. A report by ESCR-Net notes separate requests from extractive sector companies that the UK Government support their position in litigation before appellate courts in the United States over alleged extraterritorial human rights abuses. Notably, released emails show that one of the UK Government’s concerns about taking a position is that such intervention would contravene the State’s obligations with respect to the UN Guiding Principles. Ultimately, the UK Government did submit opinions in support of the two companies. The rulings in these cases set important precedents on the ability of victims to seek access to remedy for extraterritorial corporate-related human right abuse.
Therefore, the fight against corruption is central to the struggle for human rights, as a whole, and not only in a business and human rights context. [See e.g. International Council on Human Rights Policy, Corruption and Human Rights: Making the Connection, 2009].
Anti-corruption efforts feature prominently in the 2030 Agenda for Sustainable Development, with SDG 16 target 5 dedicated to “[s]ubstantially reduce corruption and bribery in all their forms”.
States are implementing anti-corruption efforts as a means to promote responsible business. Initiatives to eliminate corruption include the Foreign Corrupt Practices Act (FCPA) in the United States, and the United Kingdom’s Bribery Act 2010 to criminalise corruption including for acts of corruption abroad. Examples of companies that the U.S. Securities and Exchange Commission has brought enforcement actions against for FCPA violations include: Teva Pharmaceutical, which agreed to pay $519 million to settle civil and criminal charges that it violated the FCPA by paying bribes to foreign officials in Russia, Ukraine, and Mexico; Halliburton, which paid $29.2 million to settle charges for falsifying accounting records as part of the efforts to secure lucrative oilfield services contracts in Angola; and SQM, a Chilean chemical and mining company, which paid more than $30 million to resolve parallel civil and criminal cases finding that it violated the FCPA by making improper payments to Chilean political figures and others. (SEC website).
The Publish What You Pay Coalition and the Extractive Industries Transparency Initiative (EITI) aim to promote and open and accountable extractive sector, so as to minimise corruption. Countries that sign up to EITI must publish what they received from extractive companies, and extractive companies within their jurisdiction must publish what they pay. In so doing, citizens are empowered to hold their governments accountable for public revenue, and civil society organizations can assess whether spending is going towards priority development areas. States such as Canada and Norway have implemented laws, namely the Extractive Sector Transparency Measures Act, and Regulations on reporting and reconciliation of cash flows from petroleum activities, respectively, that require compliance with EITI cash flow reporting standards. Furthermore, Principle 10 of the UN Global Compact on Anti-Corruption urges businesses to “work against corruption in all its forms, including extortion and bribery”.
The issue of corruption relates to the following Sustainable Development Goals
16) Peace, Justice and Strong Institutions
Key laws & international principles addressing corruption include:
- United Nations: [PDF] United Nations Convention Against Corruption
- UN Global Compact: Principle 10
- OECD: Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
- OECD Guidelines for Multinational Enterprises
- Inter-American Convention against Corruption
- Council of Europe Criminal Law Convention on Corruption
- Council of Europe Civil Law Convention on Corruption
- The PRI and UN Global Compact: Engaging on Anti-Bribery and Corruption. A Guide for Investors and Companies.
- Transparency International.: Business Principles for Countering Bribery
Corruption and Human rights
- UN HRC Resolution on the negative impact of corruption on the enjoyment of human rights of 13 June 2013 (A/HRC/RES/23/9)
- UN HRC, Final report of the Human Rights Council Advisory Committee on the issue of the negative impact of corruption on the enjoyment of human rights (A/HRC/28/73)
- Corruption and Human Rights: Making the Connection – Intl. Council on Human Rights Policy (ICHRP), 2009
- UN Office of the High Commissioner on Human Rights: Human Rights and Corruption http://www.ohchr.org/EN/Issues/Development/GoodGovernance/Pages/AntiCorruption.aspx
- T. Landman and C.J.W. Schudel, Corruption and Human Rights: Empirical Relationships and Policy Advice, International Council on Human Rights Policy, 2007.
- L. Cockroft, Business and Corruption: The Human Rights Dimension, Transparency International (UK), March 2006
- Olivier De Schutter, The International Corporate Accountability Roundtable (ICAR) and Global Witness (2016) Tainted Lands – Corruption in Large-Scale Land Deals
- Linking Human Rights to Anti-Corruption – Address by Ronald Barenbeim, Senior Fellow, the Conference Board, Delivered at the 7th meeting of the UN Global Compact Working Group, 10 December, 2010,
- A crucial link between corruption and violation of human rights – Harun ur Rashid, training Bangladesh Ambassador to the UN, Geneva, in Daily Star [Bangladesh], 18 Feb 2004
- Fletcher, M. C., & Herrmann, M. D. (2012). The internationalisation of corruption: Scale, impact and countermeasures. Gower Publishing, Ltd..
Private sector & corruption
- UN Global Compact
• Transparency and Anti-Corruption
• Business against Corruption – Case stories and examples
- ICC Commission on Corporate Responsibility and Anti-corruption
- ICC Anti-corruption Third Party Due Diligence: A Guide for Small- and Medium-sized Enterprises
- Anti-Corruption: The Enabling CSR Principle – Julio Bacio Terracino, Ph.D. candidate, Graduate Institute of International Studies, Geneva, Apr 2007
- OECD (2003), “Business Approaches to Combating Corrupt Practices”, OECD Working Papers on International Investment, 2003/02, OECD Publishing. http://dx.doi.org/10.1787/870734534651
- Transparency Intl .: Global priorities: Private sector
- World Economic Forum: Partnering Against Corruption Initiative (CITP)
Disclosure & use of government revenues from the private sector:
What National Action Plans say on Corruption
Based on preliminary mapping, Belgium has identified “the fight against corruption” as one among seven principal tasks that the NAP will engage with.
Action point 2
Prepare a brochure on grievance mechanisms related to public authority
This point briefly presents the issue of corruption in regards to reparation procedures, which “must be neutral, protect against corruption and be free from any attempt, political or other, to influence its outcome.”
Action point 3
Recommendations for improving access to a judicial grievance mechanism
This point mentions that reparation procedures “must be neutral, protect against corruption and be free from any attempt, political or other, to influence its outcome.”
Action point 4
Promote existing qualitative initiatives on human rights and social responsibility
The federal government explains that the Belgian National Contact Point will organize a seminar targeting the fight against corruption for SMEs with the provision of a practical toolbox prepared in partnership with the Belgian Confederation of Enterprises and the International Chamber of Commerce and the Ministry of Justice.
Action point 16
Promote social reporting, including human rights
The NAP describes that given the adoption of the European directive 2014/95/EU, major companies, in their annual reporting, are required to include a non-financial statement containing information on the issues of environment, social and human resources, respect for human rights as well as the fight against corruption and bribery.
Action point 19
Promote best practice of SMEs that adopt responsible supply chain management, especially through the « CSR Compass » tool
This point briefly presents corruption as one among several issues that the CSR Compass covers.
Action point 27
Educate Belgian companies on the problem of corruption and strengthen Belgian commitments on this theme
This is the main action point covering corruption. As Belgium has ratified all related anti-corruption conventions, the federal government explains that the Belgian State has several legal obligations vis-à-vis the prevention and repression of corruption. In the framework of the NAP, engagements will be as followed:
- Systematic reference in international and bilateral fora of Belgium’s ratification of the international anti-corruption conventions.
- Coordination by the Ministry of Foreign Affairs on the different ministerial techniques involved in the fight against corruption to respond to the periodic evaluations of international organizations in compliance and effectiveness of internal anti-corruption measures.
- Follow-up and presence at the working groups of international organizations on anti-corruption issues and development of best practice.
- Awareness-raising of Belgian companies on the problem of corruption (Brochure of the Belgian Federal Authorities (NCP, Ministry of Economy and Ministry of Justice) with the Confederation of Belgian Enterprises and the International Chamber of Commerce on the prevention of corruption in companies, the Ministry of Justice: capacity training of investigation and judicial authorities in the field of corruption).
- Awareness-raising of Belgian companies abroad to the risk of corruption through the network of Belgian diplomacy through instruction emails sent out to the diplomatic posts in order for the 1999 OECD Convention and the Guide to best practice to reach Belgian companies that are active within their jurisdiction.
Chile’s NAP makes no explicit reference to corruption in its main text.
- Action point 7.5 (p. 19):
“The Office of the Transparency Secretary of the Presidency of Republic will support the adoption of transparency covenants by enterprises so as to contribute to the corruption struggles in corporate governments, for which purposes a year will be given upon the Plan’s launching.”
Existing plans, initiatives and strategies [page 8]
“The Czech Republic has long set great store by the topic of human rights both generally and in connection with the activities of businesses. Human rights in a business context is covered, for example, by the following strategy documents: …
Criminal liability of legal persons in the field of human rights [page 12]
“Current state of play:
- The Czech Republic is party to a number of international treaties on legal assistance and on the prosecution of various types of international criminal activity, including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.”
External policy [page 28]
“Current state of play:
- The Czech Republic has been a party to the OECD Anti-Bribery Convention since 2000, in accordance with which law enforcement agencies prosecute foreign corruption where the perpetrator is a Czech citizen.”
- Provide businesses abroad – through embassies – with advice and assistance to help them navigate the local environment, including the issues of the rule of law, human rights and corruption risks.
Coordinator: Ministry of Foreign Affairs
Deadline: Running, with an assessment in 2020″
Voluntary non-financial reporting [page 38]
“… The application of internationally acknowledged standards for non-financial reporting is recommended. These include: …
Global Reporting Initiative, an independent international organisation specialising in the reporting of the impacts of business operations in the fields of human rights, the environment and corruption”
2. The state duty to protect human rights
2.3 Actions taken
Protection of human rights through state regulation and policy [page 12]
“Denmark works to ensure that companies involved in Danish development cooperation respect human rights and act responsibly within the areas of worker’s rights, human rights, environment and anti-corruption within the framework of ILO conventions, UN Global Compact, the OECD guidelines for multinational enterprises and work towards implementation of the UN Guiding Principles on Business and Human Rights.” …
Companies owned or controlled by the state [page 13]
“When Danida signs contracts with companies, it is a requirement that companies live up to Danida’s anti-corruption policy and to the UN Global Compact. A description of the applicant’s approach to quality assurance and how it will comply with Danida’s anti-corruption code of conduct and the principles of the UN Global Compact during implementation are requested from pre-qualified tenderers and form part of the tender evaluation.” …
Providing effective guidance on how to respect human rights [page 14]
“The revised Global Compact Self-Assessment Tool works as a self-Assessment guide to a CSR due diligence going through a questionnaire covering aspects of human rights, worker’s rights, environment and anti-corruption and including a template for a follow-up action plan.” …
Appendix 1, GP 3c
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 27]
“Companies involved under Danida Business Partnerships are required and guided to undertake a CSR due diligence covering human rights, workers’ rights, environment and anti-corruption and to follow-up with an action plan in order to mitigate adverse impacts of business activities on employees and society at large.”
Appendix 1, GP 4
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 28]
“As part of the approval process, Danida Business Finance analyses potential human rights related risks including local legislation and policies and other CSR issues. Access to finance is based on buyer’s and exporter’s compliance with ILO principles on human and workers’ rights. When Danida signs contracts with companies, it is a requirement that companies live up to Danida’s anti-corruption policy and to the UN Global Compact. A description of the applicant’s approach to quality assurance and how it will comply with Danida’s anti-corruption code of conduct and the principles of the UN Global Compact during implementation are requested from pre-qualified tenderers and form part of the tender evaluation.”
1 The state obligation to protect human rights
1.3 Activities in the EU [page 16]
“On 18 April 2013, the European Commission made a proposal to amend the accounting directive for the disclosure of so-called non-financial information of certain large companies.
The proposal shall be applied to companies of significant public interest with more than 500 employees on average on the account closing date. According to the proposal, such companies should include in their annual report a declaration stating material data related to the environment, social affairs, employees, human rights, and the prevention of corruption and bribery.”
4 Access of victims of human rights violations to legal remedies [page 30]
“Finland cooperates in various ways with human rights defenders and non-governmental organisations exposing corruption. Mainly within the framework of EU cooperation, Finnish representatives are involved in the monitoring of legal processes on a case-by-case basis when monitoring is believed to have a positive impact on the protection of the rule of law.”
I- The State’s Obligation to Protect Human Rights
The National Framework
10. The Reinforcement of Legislation [page 23]
… France also played a key role in developing transparency obligations for companies at the European level. It was the main supporter of the draft directive on non-financial reporting obligations, published on 22 October 2014, which requires large European listed companies to publish reports on their social, environmental, human rights and corruption policies. France encouraged the European Commission to take an ambitious approach when adopting the guidelines discussed in the directive. The directive is currently in the final stages of being transposed into French law. This will reinforce existing non-financial reporting requirements for companies …
11. The Inter-Ministerial Exemplary Administration Action Plan and the National Action Plan for Sustainable Public Procurement
Public Procurement Policy [page 25]
The new legal framework for public procurement gives purchasers several ways of addressing social and environmental impacts. Having transposed Article 57 of Directive 2014/24/EU of 26 February 2014 on public procurement, French law now states that public contracts may not be awarded to economic operators that have been found guilty of fraud, corruption or the trafficking or exploitation of human beings (Article 45 of Ordinance 2015-899).
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 (… corruption, etc.).
II- Businesses’ Responsibility to Respect Human Rights
3. Risk Analysis and Impact Assessment
Existing Tools and Responsible Practices – At the European level [page 42]
- The Business Anti-Corruption Portal for recruitment agencies, oil and gas industries and ICT.
5. Employee Representatives [pg. 43]
… A number of different laws contain provisions on whistleblowers: Article L 1161-1 of the Labour Code applies to corruption;
III – Access to Remedy
1. Judicial Mechanisms – At the National Level
The Jurisdiction of French Courts to Hear Criminal Matters [page 49]
Generally speaking, unless otherwise stipulated in legislation, companies and legal entities are liable for the criminal offences they commit, provided that these offences can be attributed to one of the company’s “organs” or representatives, and the offences were committed on their behalf.
More specifically, French legislation is strict in combating human rights violations by legal entities. Under French law, it is a criminal offence for companies to engage in activities that breach … equality laws (… corruption) …
1.6 Whistleblower Rights [page 53]
The Act 2016-1691 of 9 December 2016 on transparency, fighting corruption and modernizing the economy replaced earlier sector-specific provisions on whistleblowers. Under the new Act, a single framework was created to protect whistleblowers who now share a common status regardless of the field concerned.
There is no mention of corruption in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
4.1 Access to justice and the courts for injured parties
Measures [page 38]
“The IRZ Foundation established by the Federal Government will include in its consultancy programmes advice for partner states on the areas of procedural and substantive law with a significant bearing on business and human rights, focusing on the need to ensure access to justice. At the Fifth International Conference of the Parliamentary Committees on Legal Affairs of IRZ partner states, held in October 2016, issues of CSR and anti-corruption efforts were among the subjects discussed under the Conference theme of “Politics, business and human rights”.”
Section 2: Current legislative and Regulatory Framework
Anti-Corruption [page 13]
“In recent years, United Nations and regional organisations have increasingly recognised the negative impacts of corruption on the enjoyment of human rights. Moreover, the treaty bodies and special procedures of the united Nations human rights system have regularly identified corruption as a critical factor contributing to the failure of States to satisfy their human rights obligations.
The most recent peer review of Ireland’s implementation of the OECD anti-Bribery Convention made a number of specific recommendations around awareness raising and reporting. Since that report, the Government has introduced the Protected Disclosures Act 2014 which provides a robust statutory framework within which workers can raise concerns regarding potential wrongdoing in the workplace. Ireland will continue to follow up the recommendations of the report to ensure that we fulfil our Convention commitments.”
Supply Chain [page 15]
“Exploitation or corruption along the supply chain can have major negative reputational impacts for companies and States.”
Non-financial reporting [page 15]
“The EU Directive on disclosure of non-financial and diversity information (2014/95/EU) 9 entered into force in December 2014. Iit requires certain companies known as ‘public interest entities’ to include a declaration in their annual management report containing information stating material data related to the environment, social affairs, human rights, and prevention of corruption. This Directive will shortly be transposed into Irish law.”
Section 3: Actions
II. Initial priorities for the Business and Human Rights Implementation Group [page 18-19]
“ii. Ensure that relevant public servants are made aware of their obligation to report suspected cases of bribery under the OECD Convention on Foreign Bribery.
xii. Create a fact sheet on the OECD Anti-Bribery Convention, the criminal offences in Irish law on bribery, the reporting systems in place for reporting suspicions of foreign corruption and the protections provided by the Protected Disclosures Act to be distributed by Enterprise Ireland to all Irish companies engaged in trade missions.”
THE ADMINISTRATIVE LIABILITY OF ENTITIES
Decree 231 of 2001 has introduced the direct liability of legal entities for specific offences (corruption, money laundering, bribery, fraud, etc.) providing for a special form of liability, which is administrative in nature but to be ascertained by a penal judge and according to criminal law procedures…
- Strengthen the role of the legality rating -primary competence of the Italian Competition Authority –with the aim of taking it into consideration in the elaboration of the ‘rating d’impresa’-primary competence of the National Anticorruption Authority –with the aim of promoting the respect for human rights in all economic activities.
The State-Business Nexus
…The Italian Anti-Corruption Authority (A.N.AC.) furthermore supervises and regulates the entire public procurement market in order to ensure compliance with: i) the principles of legitimacy and transparency; ii) the effective performance of contracts; iii) anti-corruption rules…
- Strengthen the implementation of socially responsible public procurement rules by adopting a comprehensive framework of reference for bidders coordinated by A.N.AC and covering: anticorruption,…
Objective 1: ensuring State’s duty to protect, defend and respect human rights [page 1]
“The Government has the obligation to ensure the above mentioned human rights in these areas. Government’s actions and measures include legislative instruments aimed at the development of a legislative framework providing for responsible business practices and elimination of corruption in the public sector.”
B. Anticorruption measures [page 2]
1. “Effective implementation of coordinated anti-corruption policy. The aim is to ensure proactive and effective fight against corruption, thus reducing the overall scope of corruption.
Draft amendment to the National Anti-corruption Programme for 2011-2014 was drafted by the Ministry of Justice of the Republic of Lithuania and adopted through the Resolution of the Seimas of the Republic of Lithuania of 3 December 2013. The revision and updating of this programme focussed particularly on key problems in certain areas of the public sector.”
E. Measures related to international obligations [page 4]
2. “Accession to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The aim is to create conditions for the ratification of the Convention following Lithuania’s accession to the OECD. To successfully accede to this Convention, criminal legislation must contain a special rule providing for the liability of natural and legal persons for the bribery of foreign public officials in international business transactions. The legislation must also prohibit tax deductions from money obtained as bribes, irrespective of this money being accounted for in accordance with applicable legal requirements.”
Objective 2: promoting corporate responsibility and respect in the field of business and human rights
B. Government measures encouraging business enterprises to secure respect for human rights [page 7]
2. “Competition of business initiatives on anticorruption. With regard to the fact that in 2003 on the initiative of the UN 9th of December was declared the International Anti-Corruption Day, in order to support anti-corruption initiatives each year the Ministry of Economy announces the competition of business initiatives on anti-corruption and subsequently awards the initiators for the most effective business initiatives on anti-corruption.”
Part I – Rational Framework for the development, adoption and implementation of the NAP
1. International Context
1.1. United Nations (UN) (pg. 12)
The UN Global Compact supports businesses to carry out their activities in ways that are responsible by aligning their strategies and operations with the ten principles of human rights, labour, the environment and anti-corruption. The Global Compact is recognized as a major proponent of the UN Guiding Principles on Business and Human Rights. Luxembourg companies have adopted the ten principles enacted by the Global Compact. It should also be noted that in 2017 CSR Europe (The European Business Network for Corporate Social Responsibility) signed a Memorandum of Understanding with UN Global Compact. IMS Luxembourg (Inspiring More Sustainability) is the representative of CSR Europe in Luxembourg. The National Institute for Sustainable Development and Corporate Social Responsibility (INDR) and IMS are in the talks with the UN Global Compact to represent the local network.
1.5. The Organisation for Economic Co-operation and Development (OECD) (pg. 14)
… Luxembourg, by adopting the OECD Declaration on Investment and Multinational Enterprises in 1976, also adhered to the OECD Guidelines for multinational companies…
The OECD Guidelines represent a comprehensive and global framework for the responsible management of companies, which cover all aspects including, in addition to human rights… corruption…
2. Current policy [page 9]
“To prevent abuses in terms of working conditions, child labour, environment, corruption and human rights in their supply chains, the government expects companies to act in accordance with the OECD guidelines wherever possible.”
3.4 Transparency and reporting
Reporting [page 29]
“As it points out in its policy letter ‘CSR Pays Off’, the government supports the European Commission’s proposal to amend accounting legislation in relation to non-financial reporting. Large companies will be required to disclose information on human rights, environmental matters, social and employee-related matters and corruption.”
1.1 Developing an International Framework for CSR [pages 12-13]:
There is an increasing trend for international organisations, individual countries and civil society to establish partnerships and cooperation with companies. The UN Global Compact is one such initiative. This is a network-based organisation that works with business enterprises. The enterprises are committed to aligning their strategies and operations with 10 principles in the areas of human rights, labour, environment and anti-corruption….
…The UN Guiding Principles are intended to promote more sustainable, socially beneficial economic development. Promoting human rights is directly and indirectly linked with environmental protection, climate and anti-corruption efforts.
2.2 The State as adviser [page 20]:
Many Norwegian enterprises operate in new markets in weak states with poorly developed legislation or a poor capacity to enforce human rights legislation. Such companies are requesting advice and cooperation on CSR and related subjects such as security, risks and corruption.
The NAP provides examples of measures taken to address this risk, which includes: [page 21]: “strengthen guidance and dialogue with companies on human rights, business ethics, security and corruption in especially demanding markets.”
Due Diligence by GIEK, Export Credit Norway and Innovation Norway [page 24]:
The information on the company and the project for which support has been requested is assessed on the basis of a red flag checklist and a checklist based on the 10 principles of the UN Global Compact and adapted to Innovation Norway’s mandate and target groups. The red flags are: risk of corruption, the nature of the company’s activities in low-cost countries, ethical dilemmas and environmental pressure from commercial activities. CSR scores reflect the level of CSR-related risk connected with the project or whether CSR may be a reason for giving the case priority. One of the conditions laid down in the contract with the client is that the enterprise must have high ethical standards and avoid contributing to corruption, human rights violations, poor working conditions or adverse impacts on local communities or the environment.
2.6 Human Rights in Conflict Affected Areas [page 26]:
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 NAP then provides examples of measures to address human rights in conflict affected areas [page 26], namely: “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” and “strengthen project cooperation with the business sector on ethics, security and corruption.”
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.
Pillar I: The State’s duty to protect human rights
7. Planned and ongoing activities [page 27]
“Training in business and human rights based on the United Nations Guiding Principles on Business and Human Rights run by the Ministry of Foreign Affairs for heads of embassies, consulates-general, and Polish institutes, and in CSR/RBC, business and human rights, and corruption prevention run by the Ministry of Economic Development for individuals delegated to work in Trade and Investment Promotion departments and the Permanent Representation of the Republic of Poland to the OECD”.
Pillar II: The Corporate Responsibility to Respect Human Rights
2. Dialogue and Exchange of Knowledge and Experience in Implementing CSR [page 30]
“There are four categories of corporate activities that relate to corporate social responsibility: corporate governance, employees, the environment, and the product. The activities conducted within these categories may include: the shaping of an ethical organisational culture, codes of ethical conduct, risk management, communication of CSR/RBC activities through disclosure of non-financial data (social reporting, integrated reporting), anti-corruption measures; (…).”
3. Non-financial reporting: implementation of Directive 2014/95/EU [page 31]
“The implemented provisions of the directive aim to increase the transparency of information with respect to corporate social responsibility (CSR) presented in the activity report (in the form of a statement) or in a separate report on environmental, social, and occupational issues, respect for human rights, and anti-corruption measures.”
Appendix 1: International non-binding mechanisms and international legal framework in force in Poland in relation to business and human rights
International non-binding mechanisms [page 55]
“Corporate responsibility for infringements of international human rights standards/norms is provided for in non-binding mechanisms. In this regard, besides the UN Guiding Principles on Business and Human Rights, the following documents should be mentioned: (…)
2. 10 Principles of the Global Compact, an initiative of the UN Secretary-General: A declaration from 2,000 containing voluntary commitments for those enterprises that signed it. The document covers the principles of human rights, labour law, environmental protection, and anti-corruption provisions. The declaration was signed by 82 entities from Poland;
International legal framework in force in Poland [page 56]
“In international law, there are no treaty provisions that impose obligations on international enterprises to respect human rights and make them liable for human rights infringement. Nevertheless, in certain multilateral conventions, states undertake to establish their jurisdiction over the extraterritorial activities of legal entities falling within the scope of the convention in question. Treaties of this kind provide for the obligation to introduce criminal liability for legal entities in national legislation. The agreements of this type to which Poland is a party include: Council of Europe Criminal Law Convention on Corruption of 27 January 1999 (Journal of Laws of 2005, Item 249) (…) ”.
Principle 1 – State’s duty to protect human rights
In accordance with its international commitments and national legislation, Slovenia will strive for the effective implementation of policies and measures…combating corruption. (pg. 9)
Principle 2 – States sets expectation for respecting human rights
Respect for human rights in the business sector is also required by the laws governing…the fight against corruption. (pg. 10)
Principle 3(d) – Non-financial reporting
In accordance with the Act Amending the Companies Act, which transposed Directive 2014/95/EU into the Slovenian legal order, large companies which are public-interest entities exceeding the average number of 500 employees must include a non-financial statement in the management report, containing information…relating to the fight against corruption and bribery. (pg. 23)
Principle 9 – Adequate domestic policy to meet HR obligations
Channeling development cooperation towards ensuring human rights is indirectly reflected in the…fight against corruption, endeavours to achieve responsible management of public finance. (pg. 31)
South Korea’s NAP makes no reference to corruption.
The Spanish NAP makes no explicit reference to corruption.
1 The State duty to protect human rights [page 11]
Criminal law provisions to protect human rights
“Sweden has a number of criminal law provisions for the protection of human rights regardless of the context in which an offence is committed, including in the business context. Through these criminal provisions Sweden also fulfils its international commitments in relevant respects. Examples include: …
- Protection of property, against corruption, etc., through criminal liability for offences such as theft, robbery, fraud, extortion, receiving stolen goods, bribery, dishonesty to creditors and infliction of damage (Chapter 8–12, Penal Code).”
Annex: Measures taken [page 22-24]
The State as actor
- “Corruption is a global problem and often plays a significant role in human rights abuses. International cooperation against corruption has become more intense and several important agreements have been entered into, including the United Nations Convention against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and two Council of Europe conventions. Sweden attaches great importance to international cooperation against corruption and works actively to implement the conventions and spread knowledge about their contents to relevant parties. In 2010, Sweden took over the chair of the management group of the Business Anti-Corruption Portal. It has developed the Portal, in part through cooperation with the European Commission, to cover approximately 100 countries since the beginning of 2014. The information, which mainly targets the business community, is available in English, German, Russian, Chinese and Arabic. Sweden provides support to the Extractive Industries Transparency Initiative (EITI), which works to combat corruption in the mining industry. …
- Like other state-owned companies, Swedfund International AB (Swedfund) and the Swedish Export Credit Corporation (SEK) are required to comply with the government state ownership policy for CSR, as described above. Moreover, Swedfund and SEK have social mandates specially adopted by the Riksdag. Swedfund is required to ensure that its investments comply with international standards and CSR principles, within clear and sound corporate structures that do not contribute to tax evasion, money laundering or terrorist financing. SEK is required to take account of conditions such as the environment, corruption, human rights and working conditions in its credit assessments.
Action by government agencies
- “The Swedish Export Credits Guarantee Board (EKN) has been instructed in its appropriation directions to pursue continuous development of its work on human rights, working conditions, the environment, corruption and internet freedom, based on OECD recommendations in these areas (‘Common Approaches’ and ‘Bribery and Officially Supported Export Credits’). EKN also has instructions to ensure that its activities comply with, and information has been provided about, the OECD Guidelines for Multinational Enterprises, the principles of the UN Global Compact and the UN Guiding Principles on Business and Human Rights.”
Annex: Measures planned [page 27]
Regulations and legislation
- “The interim report Implementation of the EU’s new accounting directive (Swedish Government Official Reports 2014:22) proposes enhanced transparency regarding payments made by some companies active in the extractive industry and in the logging of natural forests. The provisions will require companies to publish annual reports on payments made to authorities in the countries in which they operate. The aim is to combat corruption.
- The EU has adopted a Directive amending the Accounting Directive on disclosure of non-financial and diversity information. Corporate disclosure of sustainability and diversity policy (Ministry Publications Series 2014:45) proposes that certain companies prepare a sustainability report providing information on, for example, respect for human rights and anti-corruption activities. It is also proposed that the corporate governance reports of certain listed companies disclose the diversity policy that applies to their board.”
Annex: Links [page 30]
“Anti-corruption steering group portal: www.business-anti-corruption.com”
5. National Action Plan on Business and Human Rights
5.6 Relation to the Federal Council Position Paper on CSR [page 12]
The CSR position paper addresses a very broad spectrum of issues of relevance to corporate social responsibility. These include working conditions (including health safeguards), human rights, the environment, preventing corruption, fair competition, consumer interests, tax and transparency.
Section 5.7.2 Operational principles: legislative and information policy measures [page 14-20]
As one of the objectives of government, and a binding duty on the State, respect for human rights is laid down in the Federal Constitution (FC). Article 54 FC lists the federal government’s foreign policy objectives. Of particular relevance in the context of business and human rights are the alleviation of poverty, respect for human rights, the promotion of democracy, the peaceful co-existence of peoples, and the conservation of natural resources. The fight against corruption also contributes to human rights, and to ensuring the rule of law…
PI13 Corporate sustainability reporting
The EU decided at the end of 2014 to introduce mandatory sustainability reporting. Member States have until the end of 2016 to put this obligation into effect. EU Directive 2014/95/EU determines that certain large undertakings and groups must publish non-financial information on respect for human rights, diversity, and combating corruption and bribery in connection with environmental, social and employee matters. …
The UK 2013 NAP states in Actions taken that [page 10]:
“To give effect to the UN Guiding Principles, we have: … (vi) continued to provide financial support to the UN Global Compact, a global mechanism that encourages and enables companies to align their operations and strategies with ten universally accepted principles in the area of human rights, labour, environment and anti-corruption.”
The UK 2016 Updated NAP refers to corruption in the section on Actions Taken to Support Business Implementation of UNGPs [page 16]:
“To help businesses to fulfil their responsibility to respect human rights the Government has: (…) (viii) continued to provide financial support to the UN Global Compact, a global mechanism that encourages and enables companies to align their operations and strategies with ten universally accepted principles in the area of human rights, labour, environment and anti-corruption.”
The topic of corruption and methods address it features heavily in the U.S. NAP.
Foreword [page 1]
“The United States is committed to promoting human rights and leading the global fight against corruption. Corruption is not only immoral, it diverts public and private resources away from priorities such as feeding children, improving schools, and building the infrastructure that promotes development. Corruption enables the abuse of human rights, erodes democratic institutions, fuels organized crime and terrorism, and contributes to economic inequality. For companies investing overseas, corruption is a significant market access barrier that impedes business and economic growth.
Through our partnerships with the private sector, labor groups, civil society, other governments, and international organizations, the United States has fought corruption overseas by encouraging companies to embrace high standards of responsible business conduct. U.S. companies are among the most sought-after partners across the globe because they take seriously their responsibility to follow the rule of law, uphold human and labor rights, and strengthen the communities in which they operate.”
Purpose of the NAP [page 5]
“The NAP focuses on a broad range of issues including but not limited to: … anti-corruption …”
The National Action Plan
Leading by Example [page 7]
“The U.S. government remains committed to working with governments to raise global standards for RBC, including on labor rights, human rights, and anti-corruption, and to lead a race to the top. Promoting RBC benefits companies from all countries that fight corruption, combat human trafficking, promote labor and human rights, and adhere to high standards. Through leadership on these issues in various international organizations, including the UN and OECD, the U.S. government will continue to advocate for effective implementation of relevant international provisions in order to advance RBC”
Outcome 1.1: Promoting RBC Globally
New Actions [page 8]
“Corruption Consortium: An important deliverable from the International Anti-Corruption Summit held in the United Kingdom in May 2016, State and the U.S. Agency for International Development (USAID) will launch the Global Anti-Corruption Consortium (GACC), a new initiative to support international efforts to expose corruption, raise public awareness, and facilitate action by government, law enforcement, and multilateral organizations. GACC will expand the quality and scope of civil society investigations and reporting by mentoring investigative journalists and facilitating collaboration among anticorruption civil society actors. The initiative will improve civil society’s ability to pursue action by government and international bodies to combat corruption.” – Implementing Department or Agency: State, USAID
Ongoing Commitments and Initiatives [page 8]
“Inter-American Convention Against Corruption: The United States will continue to actively support implementation of the Inter-American Convention Against Corruption, including through active participation in the country review process” – Implementing Department or Agency: DOJ, State, Treasury, Commerce
“Asia–Pacific Economic Cooperation (APEC): The U.S. government has played an important role in numerous APEC initiatives to combat corruption, including the recent APEC Principles on the Prevention of Bribery and Enforcement of Anti-Bribery Laws, as well as the APEC General Elements of Effective Voluntary Corporate Compliance Programs adopted by APEC Leaders in 2014. For example, in August the United States and Peru hosted an all-day APEC Workshop on anti-bribery corporate compliance programs and incentives, organized by the Peruvian High-Level Anticorruption Commission and the Department of Commerce. The U.S. government is also actively engaged in the Business Ethics for APEC Small and Medium Enterprise Initiative, the world’s largest collective action mechanism to strengthen ethical business practices in the medical device, biopharmaceutical, and construction and engineering sectors.” – Implementing Department or Agency: State, Commerce
Outcome 1.2: Utilize U.S. Law, Multilateral Agreements, and Diplomacy to Promote and Enforce High Standards
Ongoing Commitments and Initiatives [page 9-10]
“Free Trade Agreements: … All U.S. FTAs since 2004 also contain transparency and anti-corruption provisions, including requiring our trading partners to criminalize both domestic and foreign bribery. For instance, the TPP includes a historic transparency and anti-corruption chapter. The TPP Parties have also agreed to encourage companies to voluntarily adopt corporate social responsibility principles that the TPP parties have themselves supported or endorsed relating to labor and environment issues.” – Implementing Department or Agency: USTR, State, Commerce, DOL
“Anti-Bribery and the OECD: The United States plays a leadership role in the Anti-Bribery Convention’s monitoring mechanism, conducted by the OECD Working Group on Bribery in International Business Transactions, which has been instrumental in increasing the number of countries enacting and enforcing foreign bribery laws. In the coming year, the U.S. government – led by State, the Departments of Justice (DOJ) and Commerce, and the Securities and Exchange Commission (SEC) – will continue to push for robust country reviews of Parties to the Antibribery Convention and examine obstacles to advancing the global efforts to address international bribery and corruption.” – Implementing Department or Agency: State, Commerce, DOJ, SEC
Outcome 1.2: Utilize U.S. Law, Multilateral Agreements, and Diplomacy to Promote and Enforce High Standards
Ongoing Commitments and Initiatives [page 10]
“International Anti-corruption and Good Governance Act (IAGGA): The U.S. government will continue its commitment to implement the IAGGA.” – Implementing Department or Agency: State, USAID, Commerce
Collaborating with Stakeholders [page 13]
“U.S. companies doing business around the world encounter a range of challenges, from lack of infrastructure, to corruption, to difficult operating environments. These challenges can hinder their ability to produce and deliver goods and services, and can also present dilemmas for companies seeking to operate responsibly and adhere to high standards.”
Outcome 2.1: Enhance the Value of Multi-Stakeholder Initiatives on RBC
New Action [page 14]
“Promoting Rights and Accountability through RBC: In May 2016, USAID launched a new Broad Agency Announcement calling for organizations and companies to collaborate in the development, piloting, testing, and scaling of innovative, practical, and cost-effective interventions to address human rights and anti-corruption in business activities globally. USAID seeks through this announcement to create more strategic, focused, and results-oriented approaches to generate solutions to rights abuses and corrupt practices in global commerce, and form partnerships to target risks and prevent violations. Under this umbrella announcement, USAID will continue its Supply Unchained initiative to better identify — and counter — human trafficking and other labor exploitation at its source.” – Implementing Department or Agency: USAID
“Wildlife Crime Tech Challenge: USAID’s Wildlife Crime Tech Challenge recently selected sixteen Prize Winners and four Grand Prize Winners who submitted the most creative, innovative, and promising science and technology solutions to combat terrestrial and marine wildlife crime, with a focus on combating corruption and reducing consumer demand for illegal wildlife products. Grand Prize Winner New England Aquarium’s solution will digitize customs paperwork and conduct real-time analysis to identify illegal wildlife products hidden in legitimate trade. The National Whistleblower Center, another Grand Prize Winner, will build a secure, transnational reporting system designed to fight corruption by incentivizing insiders to securely report wildlife crime.” – Implementing Department or Agency: USAID
Ongoing Commitments and Initiatives [page 14-5]
“Open Government Partnership (OGP): In 2011, President Obama joined seven other heads of state to launch the OGP, a global platform between governments and civil society to promote government transparency, participation, and accountability to citizens. By June 2016, OGP had grown to 70 member states that have made over 2,500 commitments to further government transparency and accountability in just five years. OGP member states — and hundreds of civil society leaders — are committed to working together to promote transparency, empower citizens and civil society, fight corruption, and transform how governments deliver services for their citizens. The United States has released three NAPs under OGP, most recently publishing an update to its third action plan this past September. In demonstration of U.S. commitment to OGP, the USG intends to provide $4 million to support the OGP Support Unit over the next four years, potentially including support to members in the development of National Action Plans, government and civil society consultations, peer learning and exchange, and technical assistance programs. In addition, USAID Missions have financed millions of dollars-worth of OGP-related activities — $14 million in FY2015 alone — ranging from sponsoring citizen consultations, to coordinating OGP workshops with senior government officials, to providing technical assistance with implementation of OGP NAP commitments.”
Facilitating RBC by Companies [page 17]
“The U.S. government is supportive of company efforts to voluntarily report on human rights impacts, anti-trafficking measures, transparency and anti-corruption efforts, and other related aspects of their global operations, including the opportunities and challenges they face.”
Outcome 3.1: U.S. Government Reports
Ongoing Commitments and Initiatives [page 18]
“Country Commercial Guides: Commerce will continue to include an anti-corruption section in U.S. and Foreign Commercial Service Country Commercial Guides.” – Implementing Department or Agency: State, DOJ, SEC, Commerce
“Anti-Corruption Publications: U.S. government agencies will continue to provide information to companies through a number of U.S. and international publications designed to assist firms in complying with anti-corruption laws, including The FCPA Resource Guide.” – Implementing Department or Agency: State
Outcome 3.2: Build U.S. Government Officials’ Capacity to Support RBC
Ongoing Commitments and Initiatives [page 19]
“FCPA Training: State and Commerce will continue to provide FCPA and related anticorruption training to Commerce’s U.S. and Foreign Commercial Service officers and State Foreign Service officers so that they may raise awareness about corruption and compliance programs and assist U.S. companies as appropriate when confronted with corruption overseas.” – Implementing Department or Agency: State, Commerce, DOJ, SEC
Outcome 3.3: Capacity Building and Technical Support to Promote Enabling Environments
Ongoing Commitments and Initiatives [page 20]
“Engagement with Companies on Anti-Corruption Issues: DOJ, SEC, Commerce, State and other U.S. government agencies conduct outreach to the business community and will continue to coordinate with the private sector on anti-corruption issues. To this end, DOJ will continue to provide businesses, through its FCPA opinion release procedures, the opportunity to seek an opinion as to whether certain prospective, non-hypothetical conduct conforms with DOJ’s enforcement policy. Commerce and State, including through Foreign Commercial Service officers and State Foreign Service officers, will continue to raise awareness about corruption and the importance of effective compliance programs, and assist U.S. companies as appropriate when confronted with corruption overseas. High-level Commerce officials also meet with business leaders around the world and advocate with government officials on rule of law and anti-corruption issues, and the Commercial Law Development Program (CLDP) meets regularly with U.S. businesses to better understand their concerns about, and provide programming in priority countries on, the legal and regulatory reforms needed to reduce corruption and level the playing field in developing countries for U.S. companies.” – Implementing Department or Agency: DOJ, SEC, State, Commerce
Recognizing Positive Performance [page 22]
“Rewarding activities helps affirm and draw attention to the significant efforts of deserving companies, and serves to reinforce how the U.S. government and U.S. firms work together to leverage comparative advantages to accomplish shared objectives, whether it be in environmental sustainability, labor rights and human rights, or anti-corruption measures.”
Annex II: Key Domestic Executive Orders and Regulatory Efforts [page 26-29]
“… The U.S. Foreign Corrupt Practices Act of 1977 (FCPA): In general, the FCPA prohibits certain classes of entities and individuals, including U.S. companies and citizens and companies publicly traded on a U.S. securities exchange, from offering to pay, paying, promising to pay, or authorizing payments to foreign officials to influence their acts or decisions or to secure other improper advantages.
”No Safe Haven” Initiative: The “No Safe Haven” initiative aims to deny entry into the United States and U.S. citizenship to the corrupt, to bribe payers, to those who benefit from corruption, those who commit certain human rights violations, and to human rights abusers and war criminals. The initiative is complemented by Presidential Proclamation 7750, which suspends the entry, in part, of public officials who accept bribes and the individuals who provide them, along with immediate family members of public officials who benefit from the corruption.
Kleptocracy Asset Recovery Initiative: DOJ uses legal tools to trace and recover the proceeds of foreign corruption in the United States. A team of prosecutors works with federal law enforcement agencies to track the proceeds of foreign corruption, prosecute those who launder the proceeds of corruption, and put forfeited assets to use for the benefit of the people of the country victimized by such abuses of public trust. The Initiative ensures that corrupt foreign leaders cannot seek to launder or spend their stolen wealth in the United States. DOJ also participates in various international fora on asset recovery and, along with the Departments of Treasury and State, pushes to strengthen the global implementation of the international anti-money laundering and counter-terrorist financing standards through the FATF. In addition to the Kleptocracy Initiative established in 2010, DOJ has five other anti-corruption programs. DOJ focuses on investigating and prosecuting domestic public integrity offenders, bribe payers, taxpayers who seek to conceal foreign accounts, and money launderers who facilitate the movement, use, and concealment of corrupt funds, and DOJ continues to provide legal assistance to its foreign partners to fight corruption and ensure it is not a profitable enterprise.
Money Laundering and Bank Integrity: Treasury administers the Bank Secrecy Act (BSA), which, among other things, requires financial institutions to maintain effective anti-money laundering (AML) compliance programs. Effective AML programs include, among other things, the ability to detect and report suspicious activity, including corruption, and to conduct due diligence and enhanced measures when banks, broker-dealers, or other institutions deal with senior foreign political figures. DOJ prosecutes criminal violations of the BSA focusing on criminal violations by financial institutions whose actions threaten the integrity of the individual institution or the wider financial system, as well as professional money launderers and gatekeepers. These unique cases reinforce the obligation on U.S. businesses in the financial sector to harden their infrastructure against financial crime—including bribery, misappropriation, and theft—and reinforce the private sector’s role as a strong line of defense against the introduction of ill-gotten gains to the U.S. financial system. …
“Transparency: The U.S. government is engaging in efforts to strengthen financial and corporate transparency to make our country even less attractive for the corrupt looking to spend the proceeds of their crimes. To that end, DOJ has submitted to Congress a package of legislative proposals that will improve the United States’ ability to combat money laundering, particularly when linked to foreign official corruption, and to locate and recover stolen assets and other criminal proceeds. Additionally, Treasury recently announced a final rule to increase transparency in the financial system. The final Customer Due Diligence rule, which was first noticed in 2014 and was subject to a public comment process, will require that financial institutions—including banks and other entities—collect and verify the personal information of the real people (also known as beneficial owners) who own, control, and profit from companies when those companies open accounts. It clarifies and expands BSA obligations and will be fully implemented by financial institutions no later than two years after its effective date (i.e. May 11, 2018). Finally, Treasury, on behalf of the Administration, sent to Congress draft legislation that would require companies formed within the United States to file adequate, accurate, and current information on its beneficial owners with Treasury. The proposed legislation includes penalties for failure to comply and is necessary to prevent the misuse of companies formed under state law. To address potential vulnerabilities in the domestic real estate market, Treasury uses its authorities to require certain title insurance companies to identify the natural persons behind shell companies used to pay “all cash” for high-end real estate in six major metropolitan areas.”