Mandatory human rights due diligence

The UN Guiding Principles on Business and Human Rights (UNGPs), Guiding Principle 17, states that:

“In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.”

The four elements of a due diligence process (Assessing actual and potential human rights impacts (Guiding Principle 18), Integrating and acting upon the findings (Guiding Principle 19), Tracking responses (Guiding Principle 20), Communicating how impacts are addressed (Guiding Principle 21)) are explored in depth in the UNGPs and the associated Commentary.

As well as measures which businesses should take, Guiding Principle 3, provides that states should “(p)rovide effective guidance to business enterprises on how to respect human rights throughout their operations”, with the Commentary noting that such advice should be provided on human rights due diligence and “should indicate expected outcomes and help share best practices”.

The Gender Guidance to the UNGPs, developed by the UN Working Group on Business and Human Rights, makes a number of recommendations surrounding gender sensitive human rights due diligence. Some of the more significant statements include the recommendation that “States should integrate a gender perspective in mandatory human rights due diligence laws, including those concerning modern slavery and transparency in supply chains” as commentary to Principle 1; the suggested action that “State should require all State-owned or State-controlled business enterprises to follow the gender framework and guidance in conducting human rights due diligence and in collecting sex-disaggregated data” as commentary to Principle 4; and the guidance that “business enterprises should explicitly integrate a gender perspective in carrying out all steps of human rights due diligence as per the Guiding Principles,” as guidance to Principle 17. In the same document, the Working Group recommends that States apply the gender framework and guidance in developing or revising all initiatives and measures, including national action plans on business and human rights, aimed at implementing the Guiding Principles.

DIHR’s paper on responsible business conduct as a cornerstone of the 2030 Agenda examines the value of human rights due diligence in this context. It is important to highlight that given the inter-relationship between many SDGs, business strategies that aim to contribute to the realisation of only certain SDGs are not a substitute for human rights due diligence. Without a clear understanding of how a company’s operations may affect human rights, there is a risk of failing to adequately address the overarching aim of the 2030 Agenda to “realise human rights of all”. However, by using due diligence as a tool that addresses the root causes for human rights violations, a business can maximize its contribution to the SDGs and support an environment in which human rights are protected.

12) Responsible Consumption and Production

The Committee on Economic, Social and Cultural Rights in General Comment No. 24 on State Obligations under ICESCR in the Context of Business Activities assert that:

“The obligation to protect entails a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights, to avoid such rights being abused, as well as to account for the negative impacts caused or contributed to by their decisions and operations and those of entities they control on the enjoyment of Covenant rights. States should adopt measures such as imposing due diligence requirements to prevent abuses of Covenant rights in a business entity’s supply chain and by subcontractors, suppliers, franchisees, or other business partners.”

General Comment No. 24 further states that in discharging their extraterritorial obligation to protect:

“States Parties should also require corporations to deploy their best efforts to ensure that entities whose conduct these corporations may influence, such as subsidiaries (including all business entities in which they have invested, whether registered under the State party’s laws or under the laws of another State) or business partners (including suppliers, franchisees or sub-contractors) respect Covenant rights. Corporations domiciled in the territory and/or jurisdiction of States Parties should be required to act with due diligence to identify, prevent and address abuses to Covenant rights by such subsidiaries and business partners, wherever they may be located. The Committee underlines that although the imposition of such due diligence obligations does have impacts on situations located outside these States’ national territories since potential violations of Covenant rights in global supply chains or in multinational groups of companies should be prevented or addressed, this does not imply the exercise of extraterritorial jurisdiction by the States concerned. Appropriate monitoring and accountability procedures must be put in place to ensure effective prevention and enforcement. Such procedures may include imposing a duty on companies to report on their policies and procedures to ensure respect for human rights and providing effective means of accountability and redress for abuses to Covenant rights.”

The due diligence guidance for responsible businesses conduct on how to conduct due diligence in accordance with the OECD Guidelines for Multinational Enterprises, and specific guidance in relation to sourcing of minerals from conflict affected and high-risk areas, the garment and footwear sector, and the financial sector. To assist businesses in their human rights due diligence processes, the UN Guiding Principles Reporting Framework, provides guidance to business on how to report on measures they have taken to respect human rights. The Corporate Human Rights Benchmark assesses large listed multinationals on their policies as well as on how they conduct human rights due diligence.

The report “Human Rights Due Diligence: The Role of States”, commissioned by ICAR, ECCJ and CNCA provides a good overview of the extent to which the legal systems of states already make use of due diligence to ensure that businesses respect established standards, as well as a description of a range of regulatory options States might use to take the next steps in ensuring businesses respect human rights,

State efforts to encourage due diligence stems from guidance to businesses to legal requirements. For example, the CSR Compass developed by the Danish Government, intends to help companies comply with international standards in the supply chain.

Some national legislatures have introduced their own forms of due diligence laws, including:

The 2017 French law on the duty of vigilance imposes due diligence obligations on large French companies (with at least 5,000 employees) to prevent human rights abuses in their operations and throughout their supply chains. To track its effectiveness, the Duty of Vigilance Radar, was created by NGOs to identify companies covered by the law and analyse their vigilance measures.
Other legislation encouraging due diligence includes the UK Modern Slavery Act 2015 which requires that businesses (with a turnover above £36m) prepare a slavery and human trafficking statement for each financial year.
In 2018, the Australian Modern Slavery Act established a national reporting requirement on large businesses in the Australian market with annual revenue of at least 100 million Australian dollars. Relevant businesses need to report on risks of modern slavery in their operations and supply chains as well as to provide actions to address those risks.
In May 2019, the Netherlands adopted the Child Labour Due Diligence Law which will enter into force in 2022 and will require companies to submit a statement to regulatory authorities declaring that they have carried out due diligence related to child labour in their full supply chains.
In June 2019, the Government in Finland published a plan to adopt mandatory Human Rights Due Diligence (mHRDD) legislation at the national level. In the initial stages of the plan, the government will conduct a study to assess the mHRDD proposal. The study will be conducted with employers’ associations, entrepreneurs associations and employees organizations, taking into consideration the position of SMEs. Read the Government’s programme (in Finnish) here.
In Switzerland, the counterproposal to the Swiss Responsible Business Initiative is anticipated to enter into force in 2022. Among other measures, the legislation will impose compulsory due diligence for supply chains on Swiss companies that provide services or products with suspected links to child labor. The SRBI will apply to companies with at least 500 employees and a balance sheet sum exceeding
CHF 20 million, or a turnover of CHF 40 million.
In June 2021, the Norwegian Parliament adopted the Transparency Act. It will enter into force in July 2022, requiring U.S-based multinationals with operations in Norway to conduct human rights due diligence and publish an annual human rights statement. The companies concerned will at least have sales revenues of NOK 70 million, a balance sheet sum of NOK 35 million and at least 50 full-time employees.
Similarly, the German Parliament passed the Act on Corporate Due Diligence in Supply Chains in 2021. Taking effect in 2023, it will initially cover companies with 3,000 or more employees, and from 2024 onwards companies with 1,000 or more employees.

In February 2022, the European Commission published a proposal for a the Corporate Sustainability Due Diligence Directive (CSDD). If adopted, the CSDD Directive would require companies in scope to identify and address their negative human rights and environmental impacts in line with key international frameworks including the UNGPs, OECD Guidelines and associated due diligence guidance. Companies would be required to conduct due diligence on their own operations, their subsidiaries and any entity with whom they have an “established business relationship”. The CSDD Directive would apply to large EU and non-EU companies and medium sized companies which operate in the following “high impact” sectors: textile, agricultural and extractive (DIHR).

In addition to actions taken to introduce mandatory due diligence obligations at the EU level through the CSDD, the European Commission has introduced a number of other initiatives which have the objective of encouraging responsible business conduct and respect for human rights by business, as well as contributions to sustainable development:

The Sustainable Finance Disclosure Regulation (SFDR) was adopted in 2019 and became operative in March 2021. It aims to strengthen the disclosures of
the financial services sector that pertains to investments promoted as having sustainability as its objective or as having environmental, social or governance (ESG) characteristics. (DIHR).
In July 2020, the Taxonomy Regulation entered into force, which provides a classification system of environmentally sustainable activities for investors by reference to six environmental objectives. For economic activities to be considered environmentally sustainable they need to contribute substantially to one or more of the six objectives, do no significant harm to the remaining objectives; and satisfy minimum safeguards including around human rights and governance matters (DIHR). The European Commission is currently discussing the potential for a Social Taxonomy document which would cover social impacts and set human rights standards when assessing economic activities.
In April 2021 the European Commission published a proposal for a Corporate Sustainability Reporting Directive (CSRD), which would replace the existing Non-Financial Reporting Directive (NFRD) adopted in 2014. The proposal extends the scope of the Directive to include large companies and listed SMEs and will introduce a new set of EU sustainability reporting standards that all reporting companies will be required to use (DIHR). In March 2022, the CSRD proposal moved to the final stage of the legislative process.
In November 2021, a proposal for a Deforestation Regulation was published, which would establish “mandatory due diligence rules for companies which want to place soy, beef, palm oil, wood, cocoa and coffee commodities, as well as derived products including leather, oil cakes and chocolate on the EU market” (DIHR).
Following the State of the Union Address in September 2021, Ursula Von der Leyen announced that the European Commission will propose a legislative initiative aiming at prohibiting products that have been made using forced labor on the European Union market. This initiative will cover both domestic and imported products and combine a ban with an enforcement framework. A call for evidence has been issued by the European Commission between May and June 2022 to collect inputs on stakeholders’ views on the need for action and the envisaged initiative. The DIHR was able to provide their feedback, highlighting the utmost need to “ensure that any measure places the needs of rightsholders at the center and is coherent with other parallel regulatory developments.”

References

UN CESCR, General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, E/C.12/GC/24, 23 June 2017
OECD, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas: Third Edition, 2016
OECD, OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector, 2017
OECD, Responsible business conduct for institutional investors, Key considerations for due diligence under the OECD Guidelines for Multinational Enterprises, 2017
Business and Human Rights Resource Centre, Human Rights Due Diligence Section
CSR Compass
Doing business with respect for human rights, Global Compact Network Netherlands, Oxfam, Shift, Nov 2016
M. Malloy, Addressing Adverse Human Rights Impacts Connected to Product Misuse. A Good Practice Note endorsed by the United Nations Global Compact Human Rights and Labour Working Group on 31 May 2017, United Nations Global Compact
L. Smith, Human Rights good practice for business operating in areas with violent crime. A Good Practice Note endorsed by the UN Global Compact Human Rights and Labour Working Group on 31 May 2017, United Nations Global Compact
UN Guiding Principles Reporting Framework, Shift & Mazars, Feb 2015
Corporate Human Rights Benchmark releases ranking results on human rights performance of 98 companies, Aviva Investors, Business & Human Rights Resource Centre, Calvert Investments, Vigeo-Eiris, Institute for Human Rights and Business, Nordea Wealth Management, & VBDO, 2017
OECD, Columbia – SIPA, Quantifying the Costs, Benefits and Risks of Due Diligence for Responsible Business Conduct Framework and Assessment Tool for Companies, June 2016
O. de Schutter, A. Ramasastry, M. Taylor, R. C. Thompson, Human Rights Due Diligence: The Role of States, 2012.
Mark B. Taylor, Human Rights Due Diligence: The Role of States, 2013 Progress Report, ICAR.
M.B. Taylor, L. Zandvliet and M. Forouhar, Due Diligence for Human Rights: A Risk-Based Approach, Corporate Social Responsibility Initiative Working Paper No. 53. Cambridge, MA: John F. Kennedy School of Government, Harvard University, 2009.
S. Cossart, J. Chaplier & T. Beau De Lomenie, The French Law on Duty of Care: A Historic Step Towards Making Globalization Work for All. Business and Human Rights Journal, 2017, 2(2), 317-323.

What National Action Plans say on Mandatory human rights due diligence

Belgium (2017 - open)

Action point 1

Develop a toolkit for companies and organizations on human rights

Elaborer une boîte à outils destinée aux entreprises et organisations concernant les droits de l’Homme

This point presents the action of developing, in collaboration with experts and its main human rights stakeholders and organizations, a toolbox that will help companies prevent human rights violations and promote the respect for human rights through their activities. This “Toolbox” will be composed of different elements including concrete tools for applying the principle of human rights due diligence.

Action point 15

Incorporate the principle of “due diligence” into the management of the company, also in the terms of human rights

Intégrer le principe de « diligence raisonnable » au sein des organismes de gestion de l’entreprise, également en matière de droits de l’Homme

This is the main action point on human rights due diligence. Concretely, the action will consist of contacting those responsible for the two Belgian corporate governance codes in order to examine the possibility of integrating international developments, in particular with regard to human rights, which will entail the attempt to minimize the administrative burden on public authorities or enterprises, but without impairing the application and implementation of ambitious criteria and controls. The integration of the ‘due diligence’ obligation for companies covered by the EU Directive 2014/95/EU concerning human rights in the instruments of corporate governance will allow for the creation of new business opportunities, as well as clarify the expectation of the plublic authority vis-à-vis compabies, in particular companies that do not yet have a comprehensive social responsibility policy, with an emphasis on prevention rather than punishment.

Action point 20

Promote state enterprises that are socially responsible

Promouvoir les entreprises publiques socialement responsables

This point touches upon human rights due diligence. The action’s objective is to create a learning network for public enterprises, which strives to bring together knowledge, to pool expertise and exchange experiences in order to realize CSR commitments and ambitions. Particular attention will be paid to how public enterprises can integrate and promote respect for human rights within their organization through tools such as reporting and/or “due diligence”.

Action point 22

Encourage responsible supply chain management with a sector-wide approach

Encourager la gestion responsable des chaînes d’approvisionnement avec une approche sectorielle

The NAP mentions human rights due diligence in reference to severel OECD guidelines such as:

The “OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas”
The “OECD-FAO Guidance for Responsible Agricultural Supply Chains”
The “OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector ”

Pillar 1: The State Duty to Protect Human Rights

Strand 1: Training in the Field of Business and Human Rights

Action Point 1.5 (pages 31-32)

The Ministry of Social Development will: …

Through the Division of Public-Private Cooperation, include the focus on business, human rights and sustainable development in training activities about Public Incentives to Benefit Social Development by means of: …

Workshop-seminars about Public Incentives to Benefit Social Development for Business Enterprises and public-private cooperation in accordance with the Guiding Principles and the 2030 Agenda, thus strengthening the State-Business nexus and promoting due diligence in human rights. …

Action Point 1.6 (pages 32-33)

The Ministry for the Environment will: …

In coordination with the Environmental Assessment Service, expand the training carried out in technical-environmental matters to representatives of the civil society and indigenous peoples to facilitate their involvement and the exercise of their rights during the process of citizen’s involvement.

Strand 2: Dialogue

Action point 2.4 (page 45)

The Ministry of Energy, through the Division of Participation and Dialogue, will promote the creation of formal and steady opportunities for dialogue between businesses and communities in localities where they expect to install energy projects. Aimed at a smooth management of these opportunities, the “Guide for Participation Standards in the Development of Energy Projects” will be available to promote the existence, from the public sector, of mechanisms allowing to decrease the asymmetries existing between the parties, such a registry of advisors and facilitators to be used by communities; a symmetry fund allowing to finance the advisors and facilitators; complaints mechanisms allowing to forward complaints to the authorities that the parties may have regarding compliance with
agreements; dispute resolution mechanisms allowing to resolve through alternative methods any disagreements that may arise in the dialogue process. Efficiency criteria set out in Guiding Principle No. 31 will be included in the design of the complaint mechanism.

Additionally, the Ministry will promote the development of “local governance mechanisms” in the localities where energy projects are installed. They will be composed of representatives from the community, business enterprises, local authorities and other actors that the parties may consider relevant, with the purpose of carrying out dialogue processes aimed at decision making connected with local development initiatives that may be developed from the presence of an energy project within the territory.

Strand 3: Inclusion and Non-Discrimination

Action Point 3.7 (page 39)

The Ministry of Energy will promote the respect of human rights of indigenous peoples in the development of energy projects. It will do this through the implementation of the Indigenous Chapter the 2050 Energy Policy, developing consultation and participation processes pursuant to ILO Covenant 169, and drafting a guide for indigenous participation in the development of energy projects.

Strand 4: Transparency and Participation

Action Point 4.1 (page 39)

The Ministry of Energy will:

Encourage, within the framework of the Local Development Policy, the participation of communities in the different stages of the life-cycle of energy projects so that their interests may become known and be taken into consideration, as well as contributing to the general development of the localities receiving them. Diverse mechanisms will be promoted to facilitate participation (detailed in theme 2) and transparency in the processes carried out. Considering the above, an online Transparency Platform will be developed for communities to have access to the dialogue processes that are taking or have taken place, the agreements reached and compliance, among other things.

Strand 5: Public Procurement

Action Point 5.1 (page 42)

The Chilean System of Public Purchases, (Chilecompra), has the mission to facilitate the contracting of goods and services by the State through a public market web platform, in the different purchase procedures. Chilecompra will:

Incorporate an “Integrity Agreement” clause, where the supplier bounds himself/herself to respect human rights in accordance with the Guiding Principles. Through the integrity agreement, suppliers commit, inter alia, to act with transparency, probity and truthfulness regarding the information and details submitted in the tender papers. This clause will be included in all terms and conditions of the Framework Agreement, and use thereof will be encouraged in the terms and conditions of public tenders. For the correct understanding of this clause, Chilecompra will train suppliers in its contents, including the issues of business and human rights.

Strand 8: Legislation, Policies and Incentives

Action Point 8.1 (page 49)

The Ministry of Economy will support the legal provision committed in the Agenda for Productivity, Innovation and Growth seeking to create a legal framework for social business enterprises, by encouraging the incorporation of business and human rights criteria.

Strand 9: State Business Enterprises

Action Point 9.1 (page 49)

The National Copper Corporation (CODELCO) will carry out a due diligence pilot project about human rights in one of its operations, in accordance with the commitments set out in the Corporate Sustainability Policy passed in December 2016.

Action Point 9.2 (pages 49-50)

The National Oil Company (ENAP), with the support of independent experts, will prepare a baseline to identify eventual impacts on human rights and the promotion and respect actions the company is currently performing. This has the purpose to identify gaps and manage the relevant plans for human rights remediation and mitigations. Priority subjects included in the study will be: life, health, environment, water, communities and workers. This initiative is based on the new Sustainability Policy passed by the Board of Directors in December 2016. It is composed of four strands: consideration of stakeholders, environment, integrated management and human rights.

Action Point 9.3 (page 50)

The Ministry of Economy, Development and Tourism will support the incorporation of the Guiding Principles in the business enterprises forming part of the System of Public Business Enterprises (SEP)

To strengthen coordination between the Ministries forming part of the Inter-Ministerial Working Group, amplify the impact of this Action Plan, and make known its progress, the Group will carry out the following actions: …

2. Encourage the adoption of policies, statements or codes of conduct by business enterprises and urge the implementation of mechanisms of due diligence.

Pillar 2: The Corporate Responsibility to Respect Human Rights

What does the Government expect from business enterprises? (page 65)

That they comply with and respect the existing legislation.
That they know and get acquainted with the international instruments on social responsibility, such as the UN Guiding Principles on Business and Human Rights, OECD Guidelines, and ILO Tripartite Declaration.
That they apply due diligence in the field of human rights with the purpose of identifying the potential risks of impacts on human rights by their operations.
That they create operational-level grievance mechanisms allowing them to identify potential impacts and establish remedial actions in case these occur.

Strand 2: Promotion of Corporate Due Diligence in the Field of Human Rights

Action Point 2.2 (page 71): The Ministry of Economy, Development and Tourism will: …

Create working groups in conjunction with the Under-Secretariat of Fisheries and Aquaculture and the Under-Secretariat of Tourism, which will have the duty to analyse and create mechanisms to monitor these sectors regarding their respect for human rights. It will encourage and work with SEP for the adoption of an audit system in the field of human rights.

II. CHALLENGES

(…)

Indeed, for a company, observing Responsible Business Conduct standards and implementing due diligence in its response to the Covid-19 crisis will help ensure that its business decisions avoid and address potential adverse impacts on people and the planet, including in its supply chain. Those companies that take proactive steps to address Covid-19 risks in a way that mitigates adverse impacts on workers and supply chains are more likely to generate greater long-term value and resilience.

III. OBJECTIVES

(…)

… the specific objectives that will develop the general objective mentioned above are the following:

(…)

Encourage the adoption and appropriation of corporate due diligence processes to strengthen respect for human rights and eventual remediation of adverse impacts.

VIII. FUNDAMENTAL PILLARS

i. Fundamental Pillar 1: The State’s obligation to protect human rights

Strand 9 [Eje nº 9]: The state as economic actor

(…)

The Ministry of Finance and Public Credit will adopt commitments to respect human rights and good reporting practices (GRI methodology) to monitor company performance.

ii. Fundamental Pillar 2: The duty of business to respect human rights

(…)

Strand 2 [Eje nº 2]: Promoting corporate human rights due diligence

The business associations will provide training opportunities aimed at promoting due diligence in the development of business activities. This will be done through the dissemination of the OECD Guidelines described in chapter IV “International Standards”.
The Presidential Advisory Office for Human Rights and International Affairs, together with business associations, will be responsible for promoting responsible supply chain management in the area of human rights, with an emphasis on small and medium-sized enterprises.
The Presidential Advisory Office for Human Rights and International Affairs will disseminate methodologies, tools and recommendations to inform corporate human rights due diligence processes.
The Procurement Agency [Colombia Compra Eficiente] will disseminate the due diligence framework established by the entity in the Guide for Socially Responsible Public Procurement within state entities.

UN Guiding Principles on Business and Human Rights [page 5]

“…The second pillar, declaring the corporate responsibility to respect human rights, is aimed at businesses, who are responsible for not breaching human rights actively, not being directly involved in human rights infringements, and acting with due diligence to lay bare any such violations. …”

Disqualification of a member of a body [page 13]

“Current state of play:

The disqualification of members of governing bodies from holding such office was introduced into Czech law in 2014 by the Business Corporations Act. This makes it possible to punish those who have bankrupted their company or have repeatedly and seriously breached the tenet of due diligence. They may be disqualified for up to 3 years.”

Supply chains and conflict minerals [page 21]

“Current state of play: …

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.

Tasks:

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”

State aid, guarantees and subsidies [page 25]

“In June 2012, the OECD Council adopted the Recommendation on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence, which expands and reinforces the original provisions on the environmental and social aspects of officially supported exports.”

Pillar II baselines: Human rights as a moral and ethical obligation [page 29]

“The introduction of efficient mechanisms to safeguard respect for human rights is not only moral and ethical, but also purely pragmatic: damages for human rights abuse can be sought in judicial proceedings. Modern legal systems allow high levels of damages to be awarded, and any such judgment could generate very bad publicity among customers, partners and the general public. Reasonable control mechanisms and thorough due diligence in keeping with best practice make it possible to work around – or at least curb – such risks even if damage has already been caused.”

Pillar II, Scope and content of the obligation to respect human rights [page 32]

“How should respect be shown? Recommended measures will differ depending on the size of a business, the market on which it is active, the sector, and a host of other factors. The UN Working Group on Business and Human Rights makes the following recommendations in particular: …

Introduce and apply the internal control mechanism of “human rights due diligence”.

Due diligence [page 35-36]

“The Government of the Czech Republic recommends that businesses consider introducing an internal due diligence mechanism to spot and eliminate human rights risks, or incorporate human rights risks – as another evaluation criterion – into their existing due diligence mechanisms.

The term “due diligence” is broadly known in the business community and denotes in-depth reviews into businesses and or the transactions they are preparing. The UN Working Group on Business and Human Rights defines human rights due diligence as a process to identify and evaluate human rights risks, a series of steps to understand how a company’s activities can affect human rights. It must also include appropriate responses to the findings. A fundamental difference between financial risk and human rights risk is that, while financial audits and financial due diligence explore the ramifications for the business itself, human rights due diligence examines the effects on third parties – the holders of human rights (customers and people living in the vicinity of a business or who are affected by its operations).

The search for and eradication of human rights risks should form part of all major commercial operations, not just because any violations of human rights that are exposed could lead to hefty financial losses (compensation, loss of customers, a tarnished reputation), but mainly because – unlike economic loss – human rights loss cannot be fixed so easily.

An effective due diligence mechanism should meet the following criteria:

Consider the internal risks (stemming from the business’s own operations) and external risks (particularly in relation to business partners and other entities with which the business works).
Identify existing risks (with a view to eliminating them) and potential risks (with a view to preventing any loss or damage).
Adapt the mechanism to the size of the business, the nature of its operations and specific local factors.
Implement the mechanism in the internal management system.
Regularly update the mechanism to reflect evolving conditions.
Leverage the experience and knowledge of independent experts who operate externally or maintain a high degree of personal independence.
Engage employees, as they should have the opportunity to draw attention to risks and provide assistance in the removal thereof.
Engage the public directly concerned, stakeholders in the community and vulnerable groups in the formation of the mechanism.

Public engagement can take many forms. First of all, this may entail consultations with those affected by businesses’ operations (holders of human rights) because these people are best placed to highlight the problems looming over them. Likewise, employees should be involved as they need to know how to deal with the knowledge they accrue in their work. Finally, public engagement may comprise external expert opinions, opposing views, etc.

Most companies have already introduced control mechanisms that can be tweaked so that they also apply to human rights risks. These tend to be compliance mechanisms, used by businesses to keep track of requirements imposed by legislation, regulators, investors and capital markets (the conditions for participating on the stock exchange etc.). Businesses should view the obligation to respect human rights as a legal compliance matter. Even if the duty to comply with human rights in the course of business operations may not derive directly from a particular country’s legal system, businesses should act as though this were the case and attribute the weight of the law to moral and ethical rules in their internal decision-making. This will enable them to incorporate human rights protection into existing mechanisms used to run checks on legal obligations. As a result, businesses will comply with their duty to respect human rights and take due care at minimum extra cost, thereby making big savings.

Human rights auditing should extend beyond the actual business to some extent and touch on the activities of external entities, such as those in the supply chains. Businesses could have a hand in violations of human rights through their own negligence, including via their subsidiaries and suppliers. Such conduct, despite not being wilful or intentional, does not relieve a business of liability as it could be viewed – by the courts and the public – as a form of negligence or failure to engage in appropriate supervision.

Although it is impossible for a business to carry out due diligence at an external entity to the same extent as internal due diligence, those areas that are most at risk should be identified, someone should be singled out as liable for infringements of rights and, where possible and feasible, specific steps to eliminate these risks should be demanded. If external risks identified, businesses should exercise any influence they have to stave off those risks, for example by sharing good practices and their own experience. Businesses lacking such influence should leverage their links with other entities (customers, suppliers, business associations, trade unions and bodies of public administration). If they have no way of influencing such conduct, they should weigh up the option of terminating cooperation.

Businesses who decide to publish the results of due diligence should:

Choose a form that the general public can readily understand. Besides conventional reports, they might consider personal meetings, online discussions and public hearings.
Choose a scope and frequency that enables them to pass on all necessary information without overwhelming the reader.
Publish not only the risks that have been identified, but also the steps to tackle them.
Withhold information that could encroach on the privacy or other legitimate interests of employees and other persons, and refrain from disclosing business secrets.”

Voluntary non-financial reporting [page 38]

“What should be included in a report? Human rights standards, as opposed to financial reporting, which is governed by sophisticated and internationally reputed respected standards, are still inchoate. Even so, the following information should not be left out of a report:

Whether a human rights commitment has been made, how it has been devised, whose rights it affects, how it is communicated, and whether and how responsibility for compliance is addressed within the business.
A specification of key issues, i.e. areas viewed by the company as operationally risky, or in which it is most involved. Information about how such issues have been identified and, if the company has operations in multiple countries, information as to which countries are affected.
Information on how these risks are addressed and what measures have been taken.

Significant events that have occurred in the past year.”

2. The state duty to protect human rights

2.2 Recommendations from the Council for CSR on the state duty to protect [page 10-11]

“In November 2011, the Danish Council for CSR started working on recommendations to the Government on how the UNGPs on the state duty to protect could be implemented. The council finished its work in January 2012 where the recommendations were handed over to the Government.

Among other initiatives, the Council for CSR recommended that the Danish Government:

Expands the existing Danish corporate non-financial reporting requirement to include mandatory reporting on human rights;
Encourages responsible public procurement by requiring government contractors to perform due diligence on human rights in relation to the products or services covered by the contract, including regularly supervising the contractual requirements;
Requires state-owned companies and governments agencies which distribute significant government funds to incorporate due diligence in their business activities; …”

2.3 Actions taken

Danish Government’s expectations to companies [page 11]

“… at Danish embassies in emerging markets, the Trade Council in co-operation with the Danish Business Authority holds workshops in responsible supply chain management, especially focusing on small and mediumsized companies and their local business partners (GP 3c). The courses are held on an annual basis. They include practical guidance on how to demonstrate due diligence in business operations in regard to adverse impacts on human rights.”

Protection of human rights through state regulation and policy [page 12]

“Companies involved in Danida Business Partnerships – an instrument that facilitates and provides economic support to develop commercial partnerships between Danish companies and partners from developing countries – are now required to integrate CSR strategically in their business operations and to demonstrate due diligence, including human rights, in order to mitigate adverse impact.”

Companies that receive substantial support and services from State agencies [page 13]

“The Environmental & Social Due Diligence Policy of the Danish Export Credit Agency (EKF) states that EKF is committed to implementing the UN Guiding Principles on Businesses and Human Rights (GP 4).”

Providing effective guidance on how to respect human rights [page 13-14]

“…To ensure that companies have the right tools and the necessary guidance to handle the new due diligence requirements, the Government has updated the existing web tool, the CSR Compass and the Global Compact Self-Assessment Tool in accordance with the due diligence requirements of the UNGPs. The revised Compass includes a guide for small and medium-sized companies on how to exercise due diligence (GP 17) and also gives guidance on ways to solve company conflicts by actively engaging in a dialogue with the company’s stakeholders (GP 29). The revised Global Compact SelfAssessment 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 followup action plan.”

3. The corporate responsibility to respect human rights

Introduction [page 17]

“While, the Danish Government has an important role in promoting the UNGPs by clarifying and communicating expectations towards companies, the Government acknowledges that in the short term it can be a significant challenge for companies to implement due diligence in their business operations – especially if the company has a complex supply chain or if the company is an SME. Thus, the Government supports the implementation of the corporate responsibility to respect by carrying out initiatives which are aimed at supporting and assisting companies with this effort.”

3.1 UNGPs on the corporate responsibility to respect human rights [page 17]

“In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: …

b) A human rights due-diligence process to identify, prevent, mitigate and account for how they address their adverse impacts on human rights; …”

4. Access to remedy

4.3 Actions taken

Access to non-judicial remedy [page 20-21]

In the second national action plan for CSR from March 2012, the Danish Government announced the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct. …

The institution will base its assessments on the OECD Guidelines for Multinational Enterprises, which incorporate the UN Guiding Principles on Business and Human
Rights, including in particular the due diligence concept as described in the UN Guiding Principles, when looking at a complaint. …

So far the promotional activities have included among other:

Development of guidance on due diligence in the supply chain and company-based conflict resolution;”

Appendix 1, GP 2

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 24]

“In 2004 the Ministry for Business and Growth in collaboration with the Confederation of Danish Industry developed the CSR Compass. The CSR Compass is an online tool which Danish companies can use when requiring customers and suppliers to respect human rights and perform due diligence.”

Appendix 1, GP 2 continued

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 25]

“Together with other OECD members, Denmark has worked and will continue to work to ensure that project-related social and human rights impacts are included in the OECD Common Approaches, including that relevant elements from the UNGP and Human Rights become part of the way export credit agencies undertake their due diligence”

Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 25]

“Denmark has contributed actively to the discussions in OECD on how to embrace Human Rights in the ”Recommendation of the Council on the Common Approaches for Officially supported Export Credits and Environmental and Social Due Diligence (Common Approaches)”. Together with other OECD members, Denmark has worked to ensure that project-related social and human rights impacts are included in the OECD Common Approaches, and also that relevant elements from the UNGPs and Human Rights become part of the way export credit agencies demonstrate due diligence. Furthermore, the revised Common Approaches now ensure policy coherence with the OECD Multinational Guidelines.”

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]

“…The Trade Council under the Ministry of Foreign Affairs advises Danish companies and their local partners on how they should handle their social responsibility in a number of export markets. The advisory services include human rights due diligence.
The Trade Council in co-operation with the Danish Business Authority holds workshops in Responsible Supply Chain management, especially focusing on small and medium-sized enterprises and their local business partners (GP 3c). The courses are held on an annual basis. They will include practical guidance on how to demonstrate due diligence in business operations in regard to adverse impacts on human rights. To further assist the Danish companies in emerging markets, the embassies are also conducting free CSR reviews of local business partners. The reviews include a due diligence component. …
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.
The ministry of Foreign Affairs is also working on competence development courses within UNGPs and CSR for embassy staff, including e-bites, guidance on how to perform CSR due diligence and workshops for Danish companies operating abroad and local companies in new growth markets. …”

Appendix 1, GP 4

State Duty to Protect [page 28]

“States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.”

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 28]

“EKF’s Environmental & Social Due Diligence Policy states that EKF is committed to implementing the UN Guiding Principles on Businesses and Human Rights.
When conducting due diligence IFU uses the Global Compact SelfAssessment tool, which contains a robust assessment of human rights conditions.”

Government covering note on the UN Guiding Principles on Business and Human Rights National Action Plan

Legislative report

“A report on legislation pertaining to national and international business and human rights is to be drafted based on the principles stated in the UN Guiding Principles. The objective is to examine whether legislation corresponds with the aims of the UN principles and determine the necessity of initiatives taken to otherwise improve corporate operating practices, particularly where due diligence, corporate reporting obligations and remedies for victims of human rights violations are concerned. It is also to propose concrete recommendations for change, wherever necessary.”

Due diligence

“With regard to the due diligence, the working group rightly emphasises in its report the need to identify best practices and the concept of more functional international specifications. At the same time, it is vital that the discussions be continued also at the national level. The aim of the round table discussions presented in the report should be to not only increase dialogue, but also to establish as broad a national understanding as possible on what due diligence means and how it can be properly implemented in various sectors and business areas. Stakeholders from different fields are invited to the round table discussions, whose final outcomes are addressed by the Committee on Corporate Social Responsibility.”

Introduction [page 11]

“…companies have the responsibility to respect human rights, regardless of the states’ obligation. Companies should therefore carry out due diligence …”

1 The state obligation to protect human rights

1.2 Activities in international organizations [page 14]

“In international human rights bodies, Finland has emphasised development related to due diligence.”

1.3 Activities in the EU [page 16]

NON-FINANCIAL REPORTING

“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. The declaration should contain a short description of the business model, a description of the policies related to the areas mentioned above as well as the due diligence related to them, the results obtained in the policies, the main risks and risk management that apply as related to the areas mentioned above, and the non-financial performance indicators significant for company business. Instead of a declaration attached to the annual report, companies may also publish separate reports on certain conditions.”

3 Expectations towards companies and support services

3.1 Clarification of due diligence [page 24-26]

“The OECD Guidelines for Multinational Enterprises12 were updated in 2011. In the same connection, the UN Guiding Principles on Business and Human Rights were included in the Guidelines along with due diligence. In the OECD Guidelines, due diligence is seen as an examination process with which companies identify and prevent the actual and potential adverse impacts of their activities in their decision making and risk management. This means that due diligence is not a single action. Instead, it is an ongoing process where the human rights impacts of business activities are assessed with appropriate and sufficient care.

Due diligence also includes the mitigation of adverse impacts and communication on how companies deal with these adverse impacts. Potential effects are dealt with by preventing or mitigating them, whereas actual impacts will be dealt with by remedying them.

By following due diligence, an attempt is made to prevent the adverse impacts which a company will either cause itself, to which it will considerably contribute towards, or which are directly related to the company’s activities, products or services through a business relationship.

The contribution refers to a situation where that contributing impact is substantial. This means activities resulting in indirect adverse impacts caused, promoted or encouraged by another party. This does not cover minor or insignificant contributions. If a company contributes to a detrimental effect on human rights, it should take the necessary measures and use its influence to prevent or alleviate the adverse impact.

In the Guidelines, business relationships cover relations with business partners, supply chain operators and other operators independent of the state and governmental operators that are directly related to the company’s business activities, products or services. If the company has a lot of suppliers, it should identify the areas where the risk of adverse impacts is highest and contribute to the prevention of these risks.”

WHAT IS SUFFICIENT?

“At the consultation events organised by the working group, it was suggested that a new statutory obligation on due diligence should be established for companies when implementing the UN principles on a national level13. Transforming the due diligence described above into a legally binding obligation is difficult to envisage. The problem with statutory due diligence for respecting human rights is the difficulty of defining the obligation included therein. On a national level, respecting human rights is defined in appropriate legislation, and careful actions may be important for assessing company responsibilities. Extending national legislation to international activities is even more challenging. The special questions related to the regulation of international business activities have been described above in Section 1.1.

According to the international guidelines, the sufficiency of following due diligence and the possibilities of making a difference are always weighed on a case-by-case basis. The issues mentioned above (such as the size of the company, branch of activity, operating conditions, ownership and business structure) are taken into consideration. The seriousness of the adverse impacts caused is important as well. Since both the UN principles and the OECD Guidelines emphasise prevention, a retrospective assessment on sufficiency will cause challenges of its own for preparatory actions.

The discussion on the content of due diligence and the ways it is applied also continues in international organisations.

Though there is no binding regulation on due diligence, it is a central concept in managing human rights risks related to international business activities. For these reasons, more discussion and information is required on the types of risks and possibilities related to each branch of activity, on the types of risk management needed, and on the expectations for observing due diligence in various branches of activities.

As a follow-up measure, the working group proposes that

companies, non-governmental organisations and other key stakeholders are invited to a roundtable discussion by branch of activity. For example, the discussion could begin with the forest industry, the consumer goods trade and the textile industry. With the discussions, an attempt shall be made to create a dialogue amongst various stakeholders and to establish the essential risks for each branch of activity as well as sufficient risk management and due diligence.
In co-operation with the business sector, the collective industrial organisations and non-governmental organisations, sharing of due diligence best practices is promoted in order for companies to apply them.
Principal responsible parties: Ministry for Foreign Affairs and Ministry of Employment and the Economy, schedule by the end of 2015.”

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 …

4. The International Organisation for Standardization (ISO) [page 15]

France actively contributed to work completed by ISO which resulted in the adoption of the ISO 26000 standard on social responsibility for businesses and organizations. This standard seeks to promote a common understanding of social responsibility, but cannot be used for certification. The ISO 26000 standard deals with seven core subjects, one of which is human rights …

… The standard also defines the concept of due diligence, describing it as a “comprehensive, proactive process to identify the actual and potential negative social, environmental and economic impacts of an organization’s decisions and activities over the entire life cycle of a project or organizational activity, with the aim of avoiding and mitigating negative impacts”…

Actions Underway [page 16]

France actively contributes to OECD activities in the field of responsible business conduct, particularly its work on due diligence (in the textile and finance sectors) and reinforcing the OECD Guidelines to mark their 40th anniversary (from June 2016 onwards).

The European Framework

6. The Council of Europe [page 17]

… the Recommendation CM/Rec(2016)3 on human rights and business was adopted by the Committee of Ministers of the Council of Europe on 2 March 2016. Currently this recommendation includes the following provisions:

Article 20: Member States should apply such measures as may be necessary to encourage or, where appropriate, require that:

business enterprises domiciled within their jurisdiction apply human rights due diligence throughout their operations;
business enterprises conducting substantial activities within their jurisdiction carry out human rights due diligence in respect of such activities; including project-specific human rights impact assessments, as appropriate to the size of the business enterprise and the nature and context of the operation.”

7. The European Union (EU) [pages 17-18]

… Following the proposal for a European regulation on the traceability of minerals from conflict zones, 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.

France could play a key role in the adoption of a common European framework on due diligence. The French National Assembly launched a parliamentary “green card” initiative to this effect.

Actions Underway

France is promoting the notion of due diligence at the European level to encourage the creation of a common framework based on the legislative framework adopted in France.

The National Framework

10. The Reinforcement of Legislation [page 23]

Recent public policies have led France to adopt new legislative measures supporting CSR.

An act on a duty of vigilance for parent companies and outsourcing companies was promulgated on 27 March 2017. Under this act, companies that employ more than 5,000 employees in France, or more than 10,000 employees in France and abroad, must draft and implement due diligence plans. Plans must set out reasonable measures to identify risks and prevent serious abuse of human rights, fundamental freedoms, health, personal safety and the environment, arising as a result of the operations of the company, of companies under its direct or indirect control, or of subcontractors and suppliers with which it has well-established commercial relationships.

…

Actions Underway [page 27]

France is implementing the act on the corporate duty of vigilance.

13. The Role of Public Agencies [page 26]

The NAP recalls the CNCDH’s 2013 recommendation regarding France’s export credit agency COFACE, namely the establishment of human rights due diligence procedures including exhaustive human rights impact assessments, better transparency and information, and better civil society and affected stakeholders participation. It also recalls the CSR Platform’s recommendation for the development agency AFD and the export credit agency COFACE to reinforce their due diligence procedures and to establish grievance mechanisms.

Actions Underway

COFACE is continuing efforts to make information on reasonable due diligence in the social and environmental fields (which include human rights) visible and accessible on its website.

Actions to be Implemented

Make AFD funding for businesses conditional on implementing or undertaking to implement non-financial reporting and a CSR due diligence plan for projects, or on the enforcement of host country or international standards.

15. Economic Sectors and Human Rights

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.

Actions for all Economic Sectors

Reinforce due diligence, particularly in sectors and countries at risk of human rights abuses.
Encourage French businesses to develop and implement due diligence plans on the basis of their size.

…

The Textile and Garment Sector

… the OECD set up a working group to develop a guide for the enforcement of the guidelines in the textile sector, at France’s insistence. This working group brings together international organizations such as ILO, the private sector, civil society, NCPs and States. The guide will include reinforced due diligence measures to be implemented in this specific sector. The OECD has also planned to set up a platform for shared dialogue and good practices …

Actions Underway

France is helping to finalize the OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector.

…

The Extractive Sector

Extractive industries are often considered opaque and at high risk of environmental and human rights abuses. As such, they are subject to heightened due diligence measures and initiatives seeking to address sector-specific risks.

France’s actions in this field focus on multilateral and European initiatives reinforcing the legal and regulatory framework for businesses working in the extractive sector, especially in regions with fragile governance systems.

France helps monitor and finance the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and HighRisk 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 also helped draft and adopt the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. This guide contains recommendations to help businesses in the sector identify and manage the adverse impacts of their operations on communities affected by mining projects.

Actions Underway

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).

The Financial Sector

In a statement dated 27 May 2013, the OECD’s Norwegian NCP specified that like other enterprises, investors are expected to comply with due diligence requirements recommended by the OECD Guidelines for Multinational Enterprises regarding the respect and protection of human rights including in relation to minority shareholdings. The OECD also set up a multi-stakeholder Working Party on Responsible Business Conduct in finance, and developed recommendations to support the implementation of the Guidelines in this sector. France monitored this work closely. Recommendations on responsible business conduct for investors have been established.

Actions Underway

France promotes, at the national and European levels, investment policies that incorporate due diligence and highlight the principles and practices of institutional investors.

II- Businesses’ Responsibility to Respect Human Rights

Introduction [page 37]

In March 2015, the National CSR Platform agreed on the following points with respect to due diligence:

Parent companies and outsourcing companies should undertake due diligence (which some considered should be voluntary and reasonable, and which others considered should be compulsory) with respect to subsidiaries and subcontractors in order to improve human rights and environmental risk prevention.

This due diligence could include the following measures:

Defining the scope of the fundamental rights concerned. The Universal Declaration of Human Rights, the UN Guiding Principles on Business and Human Rights, the OECD Guidelines for Multinational Enterprises and the Charter of Fundamental Rights of the European Union could serve as a basis for this definition.
Setting a size threshold over which companies and groups would be obliged to implement due diligence processes.
Defining the operational content of reasonable due diligence processes for companies in due diligence plans. These plans would distinguish between subsidiaries and subcontractors given the different due diligence processes applicable to each of these cases. The goal of these plans would be to identify and prevent human rights and environmental risks resulting from business operations. The French NCP’s work on the textile and garment sector could be a useful reference. Parent companies and outsourcing companies would have to disclose the due diligence processes they implement, in compliance with the European directive on non-financial reporting.

III- Access to Remedy

Introduction [page 46]

In its 2013 opinion, the CNCDH made the following recommendations:

Drawing inspiration from the duty to protect and remedy in the environmental sphere, the CNCDH recommends that a duty of vigilance on the part of the parent company with regards to its subsidiaries be legally imposed with the aim of preventing any violations of human rights that might occur over the course of its activities.

…

2. Non-Judicial Mechanisms – At the International Level

2.1 The OECD National Contact Point (NCP) [page 54]

The French NCP is very active in promoting responsible business conduct and the OECD Guidelines for Multinational Enterprises. Following the Rana Plaza tragedy, the NCP stepped up its activities, especially in the field of due diligence for supply chain risks, human rights and workers’ rights …

Appendix

The Positions Adopted by the Different Groups of the National CSR Platform

Proposals by the civil society and trade union groups [page 61]

Civil (and possibly criminal) liability and a duty of vigilance should be introduced for French parent companies and outsourcing companies that commit human rights violations in France or abroad over the course of their activities or those of their subsidiaries or subcontractors. Under this regime, the burden of proof would be on companies, enabling victims to trace the abuse to the highest level of the chain of responsibility.

…

III. Federal Government expectations regarding corporate due diligence in respecting human rights [page 7-12]

“With regard to corporate respect for human rights, the Federal Government expects all enterprises to introduce the process of corporate due diligence described below in a manner commensurate with their size, the sector in which they operate, and their position in supply and value chains. This applies especially when they operate in countries where the rule of law is not enforced or is only partly enforced. Such expectations are without prejudice to the fundamental duty of a state to guarantee the protection of human rights within its territory.

Scope and practical structuring of due diligence in the field of human rights

“The responsibility to exercise due diligence applies in principle to all enterprises, regardless of their size, the sector in which they operate, or their operational context within a supply or value chain with an international dimension. The nature and exercise of due diligence for any given enterprise should be commensurate with these factors; it should be possible for the enterprise to incorporate its due diligence obligations into its existing processes in an appropriate manner without the creation of undue bureaucratic burdens.

Enterprises should prevent and mitigate any adverse impact of their business activity on human rights. When due diligence in the realm of human rights is defined and exercised, consideration should be given to the beneficial effects of corporate activity and to the diverse perspectives of the company’s own employees, the relevant stakeholders and others who may be affected. Within large enterprises, these include the staff of the human resources, purchasing, compliance and sales divisions. From outside the enterprise, suppliers, customers and trade unions but also bodies from civil society, business organisations and governments should be involved. Particular attention should be given to the rights of their respective employees and to those of local populations who may be affected.

Depending on the size of the enterprise, the nature of its products or services, the potential risk of particularly adverse impacts on human rights and the operating context, the measures to be taken are likely to vary in scope. It may be appropriate to conduct certain elements of the process in combination with other enterprises within an association or industry, subject to compliance with antitrust legislation. Small and medium-sized enterprises in particular should make use of the advisory and support services to be offered by the Federal Government and business associations under the National Action Plan. The expertise of organisations within civil society and trade unions should also be brought to bear.

The elements of human rights due diligence described in binding form in the following paragraphs are not to be understood as a rigid sequence. On the contrary, findings relating to one element should be used continually for the revision and development of the other elements so that learning processes can take place. There must be scope for the incorporation of present and future legal requirements for the exercise of human rights due diligence.”

Core elements of due diligence in the field of human rights

“a human rights policy statement
procedures for the identification of actual or potential adverse impact on human rights
measures to ward off potentially adverse impacts and review of the effectiveness of these measures
reporting
a grievance mechanism”

Policy statement

“With the aid of a policy statement, enterprises should state publicly that they are meeting their responsibility to respect human rights. This statement should be adopted by the senior management of the enterprise and be communicated both internally and externally. It should be used, on the one hand, to address human rights issues of particular relevance to the enterprise and/or the sector in which it operates, citing the international reference instruments in the field of human rights and, on the other hand, to describe the procedure used by the enterprise to exercise human rights due diligence. In particular, this includes the clear assignment of responsibilities within the enterprise, underpinned by the necessary training of staff employed in the relevant divisions. The statement should be continually revised and developed.”

Procedure for the identification of actual and potential adverse impacts on human rights

“Central to the exercise of due diligence is the establishment of a procedure that serves to identify, to prevent or to mitigate potentially adverse effects of corporate activity on human rights. It is not – or not only – a matter of considering risks to the company’s own business activity but is primarily about risks to the human rights of those who may be affected by corporate activity, such as employees of the enterprise itself or of other companies in the supply chain, local populations and customers.

The consideration of potentially adverse impacts on human rights is a continuous task that accompanies work processes and, in particular, is performed with a sectoral focus. It should take place when new divisions, products or projects are launched as well as in the context of existing business activities. When potential risks are examined, a distinction must be made between the following types of impact:

those generated directly by the enterprise itself,
those to which the enterprise contributes, for example through direct contractual relations with suppliers, and
those connected indirectly with the enterprise through its business relations, its business activity or its products or services even though no direct contractual relationship exists, for example in situations involving numerous intermediary dealers. Granting loans, issuing credit lines and providing other financial services to other banks, insurers or other financial service providers do not in themselves constitute a relationship in the above sense if those transactions cannot be unambiguously attributed to a particular business activity in the real economy.

This systematic approach to identifying key impact factors and risks is nothing new and is already part of established management systems and processes, as may be seen, for instance, in Annex I to Regulation (EC) No 1221/2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS), which deals with the internal environmental review to be conducted by participating organisations.

The size of an enterprise, the sector to which it belongs and the nature of its business activity directly influence the risk that its operations will have an impact on human rights. The required depth and breadth of the risk assessment depends on these factors. An initial risk analysis on the part of an enterprise should be conducted for each division or each product category and possibly for each location too. The starting point may be a simple overview of the company’s main activities and of the value chains and business relations these activities entail. On the basis of this overview and with due regard to the international human rights standards enshrined in instruments such as the Universal Declaration of Human Rights, the International Covenants on Human Rights, the ILO Core Labour Standards and the OECD Guidelines for Multinational Enterprises, potential risk areas can be identified. Contextual circumstances such as the political framework and the presence of vulnerable groups of people (indigenous populations, for instance) should be factored into the analysis. The choice of method and the assessment of risks can be made on the basis of the analysts’ own research, interviews in-house, in subsidiary enterprises and/or with business partners and input from external specialists.

With the aid of this analysis, enterprises should determine whether an in-depth review is needed. This is most likely to be the case if the risk of an adverse impact on the human rights of particular groups is particularly high and fuller information is required before any action can be taken. For this reason, the recognised problem areas should be ranked in order of priority.

The risk of a particularly adverse impact arises, for example, in cases where a large number of people may be affected or the potential impact would have serious, unforeseeable, or irreversible consequences. The in-depth review should at least include local dialogue with actually or potentially affected parties and recourse to both internal and external expertise in the field of human rights.”

Measures and effectiveness tracking

“On the basis of the results of the analysis, measures should be identified and incorporated into business activity. Such measures may, for example, comprise specialised training of particular employees in-house or with suppliers, adaptation of particular management processes, changes in the supply chain and participation in sectoral initiatives. So that potential or actual impacts can be properly addressed, enterprises should define clearly where competence lies for particular issues and establish the corresponding review mechanisms. Depending on the type of impact, an enterprise itself can initiate remedial measures. If the enterprise does not possess sufficient leverage to implement successful measures, it should cooperate with other players to increase its influence. Withdrawal from an area of business activity or from a location should only ever be a last resort in such situations. The enterprise should focus first and foremost on developing remedial measures. To this end, objectives should be formulated and be communicated internally and externally as the relevant measure dictates. With the aid of effectiveness tracking, the enterprise should regularly review the efficacy of the measures it has taken and, to this end, engage in dialogue with affected stakeholders.”

Reporting

“Enterprises should keep information at their disposal and communicate it, where appropriate, to external recipients in order to demonstrate that they are aware of the actual and potential impact of their corporate activity on human rights and are taking appropriate steps to address the situation. The form in which this information is communicated should be tailored to its recipients. Enterprises whose business activity poses a particularly high risk of adverse impacts should issue regular public reports on that subject. Such reporting may be done in the framework of the company’s existing reporting format or take the form of separate reports focused on human rights. At the same time, such reporting obligations should not impose disproportionate administrative burdens on the reporting companies or on the SMEs in their supply chains.”

Grievance mechanism

“For the early identification of (actual or potential) adverse impacts, enterprises should either establish their own grievance procedures or play an active part in external procedures. Such procedures may, for example, be established by sectoral associations. The mechanism should be structured to match the target group. Accordingly, the target group should be consulted when the procedure is being devised. When new mechanisms are established as well as when existing mechanisms are used, care should be taken to ensure that they provide a fair, balanced and predictable procedure which is accessible to all those who might be affected (for instance by eliminating linguistic or technical barriers). As an extra measure, consideration should be given to the creation of offices with which complaints can be lodged anonymously.

The procedure should provide for maximum transparency for all stakeholders and should comply with international human rights standards. Existing complaints offices within an enterprise or its environment should be screened for compliance with the criteria defined above.

The grievance mechanism of each enterprise and its whole process of corporate due diligence should be subjected to regular practice-based reviews to assess their effectiveness.”

Measures

The Federal Government expects all enterprises to introduce the processes described above in a manner commensurate with their size, the sector in which they operate and their position in supply and value chains. Their compliance will be reviewed annually from 2018. In the absence of adequate compliance, the Federal Government will consider further action, which may culminate in legislative measures and in a widening of the circle of enterprises to be reviewed (see chapter VI below).
The National Corporate Social Responsibility (CSR) Forum of the Federal Government, comprising representatives of the political and business communities, trade unions, civil society and academic professions will draw up an intersectoral “CSR consensus” paper on corporate responsibility in value and supply chains and present it to the Federal Government as a recommendation. One element of that paper, among other things, is to reinforce the expectation of a responsible management of due diligence in the realm of human rights as described in the present chapter. Further information is made publicly accessible online at csr-in-deutschland.de. The possibility to join the “CSR consensus” is open to all enterprises that operate in Germany. The list of companies that have joined will be updated continuously and made publicly available at www.csr-in-deutschland.de.
The aim is that at least 50% of all enterprises based in Germany with more than 500 employees will have incorporated the elements of human rights due diligence described in this chapter into their corporate processes by 2020. Enterprises which have not adopted particular procedures and measures should be able to explain why they have not done so (the ‘comply or explain’ mechanism). If fewer than 50% of the enterprises defined above have incorporated the elements of human rights due diligence described in chapter III into their corporate processes by 2020 and the target is thus missed, the Federal Government will consider further action, which may culminate in legislative measures. In this context, the Federal Government will also examine, in consultation with the National Regulatory Control Council, the necessity of the corporate compliance costs arising from this plan and will consider a widening of the number of enterprises to be reviewed, in order to potentially include enterprises with fewer employees in future assessments and subsequent additional [sic]”

1. Key areas for action [page 13]

In relation to the three pillars of the UN Guiding Principles, the following are the primary areas for action: …

effective exercise of corporate due diligence with regard to human rights …”

1.1 Basic rules of economic policy

Development policy

Measures [page 20]

“ The instruments of development policy relating to cooperation with business will be reviewed for compliance with the requirements of the UN Guiding Principles. In particular, the contractual clauses of the develoPPP.de programme are to be fleshed out to include the due diligence requirements with regard to human rights. …
The requirements set out in the UN Guiding Principles and in the National Action Plan, in particular in its chapter III, on due diligence with regard to human rights, also apply to the organisations that implement development policy, including bodies that provide financing for development. They also serve as a basis for further assessment and monitoring and, where appropriate, further development of the grievance procedures that state implementing organisations, including financing bodies, have already established. …”

Public procurement

Measures [page 22]

“The Federal Government will examine whether and to what extent binding minimum requirements for the corporate exercise of human rights due diligence can be enshrined in procurement law in a future revision. It will draw up a phased plan indicating how this aim can be achieved.”

1.2 State support

Subsidies

Measures [page 23]

“The Federal Government will examine to what extent the sustainability assessment for which the Subsidy Policy Guidelines provide is consistent with the requirements set out in the UN Guiding Principles and how enterprises receiving significant subsidies can be subjected to a future obligation to apply the elements of due diligence described in chapter III above.”

Export credits, investment guarantees and other instruments for the promotion of external trade

Measures [page 25]

“Better information and greater transparency will serve to draw corporate attention, as early as during the initiation stage of projects, to the great importance attached to human rights due diligence and to the OECD Guidelines. In particular, the Federal Government will extend its support for the affected enterprises in the form of information material.
In addition, it is planned to introduce human rights due diligence reports into the assessment procedures of the insurance instruments for foreign trade in cases where there is a high probability of serious implications for human rights. …
The detailed procedure for assessing applications for the provision of export credit guarantees, guarantees for direct investments abroad and untied loan guarantees will be further reinforced as regards respect for human rights; this will entail measuring the procedure against the specific requirements set out in the NAP. To this aim, human rights will be treated as a separate point in future project assessments. The aim is to ensure that enterprises which avail themselves of foreign trade promotion instruments exercise due diligence. In particular, this includes participation in grievance proceedings initiated against them before the German National Contact Point for the OECD Guidelines for Multinational Enterprises.”

2.1 Ensuring the protection of human rights in supply and value chains [page 28-30]

“Throughout the world, the expectations of consumers, civil society and trade unions in terms of product quality and transparency of production are rising. Their attention is increasingly focused on factors such as environmental protection and social and employment standards along manufacturers’ supply chains. In many cases these supply chains are not transparent, and it is difficult to assess the situation with regard to individual enterprises within the chain. This increases the risk of adverse impacts on human rights and on social, labour and environmental standards in host countries. These countries often lack an adequate legislative basis or state supervision and enforcement of compliance with existing laws.

The Federal Government nevertheless expects enterprises to discharge their responsibility to exercise due diligence as regards human rights and therefore to create and apply appropriate management instruments that minimise the risk of involvement in the generation of any adverse impact (see chapter III above).”

The current situation

In the framework of the German presidency of the G7 in 2015, the Federal Government was a driving force behind the successful proposal to include a chapter on responsible supply chains in the Leaders’ Declaration. In that chapter, the private sector is being urged to exercise due diligence with regard to human rights. Together with the Heads of State or Government of the other G7 nations, the Federal Chancellor declared the Government’s support for the promotion of sustainability standards in global supply chains, including decent working conditions. To this end, the G7 are to:

support efforts to set up substantive national action plans for the implementation of the UN Guiding Principles,
increase transparency within supply chains,
promote instruments for the identification and prevention of risks,
strengthen grievance mechanisms,
encourage best practices
and, in particular, assist small and medium-sized enterprises in developing a common understanding of due diligence and responsible supply-chain management.

…

The Partnership for Sustainable Textiles, which was initiated by the Federal Ministry for Economic Cooperation and Development, has established an obligation to comply with sustainability standards and to guarantee corporate due diligence in the textile and clothing sector. All members of the Partnership are required to pursue its social and environmental objectives. They submit to a review process, which is conducted by an independent third party and is designed to bring about continuous improvement. Individual schedules of measures (road maps) are compiled annually by all members; the first of these is to be produced by the end of January 2017. A robust sanctions regime and regular reporting on the implementation of the road maps will ensure credibility and transparency. The Textile Partnership creates a reference framework and an independent review system of international scope.”

Measure

“The Federal Government will publish a study identifying high-risk sectors and regions of particular relevance to the supply and value chains of German business. On the basis of this study, with the Federal Government in a moderating role, sector-specific guides to the exercise of human rights due diligence and examples of best practice will be drawn up in cooperation with the relevant business associations and with the aid of dedicated multi-stakeholder forums. …
By means of the Partnership for Sustainable Textiles, the Federal Government supports a multi-stakeholder initiative combining voluntary and compulsory elements. The Textile Partnership is designed to comply with the UN Guiding Principles. The aim is to have 75% of the German textile and clothing market signed up to the Textile Partnership by 2018. The Partnership should serve as a model for the definition of due diligence requirements in other industries.
The “Round Table on Human Rights in Tourism”, a model initiative for the development of a specific sectoral understanding of due diligence with regard to human rights, will receive increased financial support from the Federal Government.”

2.2 Transparency and communication regarding corporate impacts on human rights [page 30]

“Transparency requirements for corporate activity are an elementary component of due diligence with regard to human rights. These requirements are not limited to formal sustainability reporting but also entail willingness to engage in open dialogue with consumers, customers and actual or potential stakeholders and to share information on request.

2.3 Business activity in conflict zones [page 32-33]

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.”

Measures

“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.”

3. Available means of practical implementation support

Measures [page 35-36]

“III. Opportunities for training and dialogue

The range of advisory and training services offered by the German Global Compact Network will be expanded and supplemented by services such as a graduated range of webinars and other formats relating to specific elements of human rights due diligence just like practical questions and answers. …

Creating a global level playing field

In multilateral forums such as the G20, the EU and ASEM and in close cooperation with international organisations such as the ILO, the OECD and the UN, the Federal Government will press for the creation of a global level playing field with regard to terms of competition. To this end, the G7 leaders decision on sustainable supply chains will be further fleshed out with a view to arriving at a common global understanding of due diligence and of sustainable supply chain management.”

4.2 National Contact Point for the OECD Guidelines [page 39]

“Among other things, the NCP is responsible for complaints of insufficient respect for human rights and of insufficient consideration for human rights in the exercise of companies’ due diligence as defined in the OECD Guidelines.”

V. Ensuring policy coherence [page 40]

“The Federal Government will continue to press in global as well as other forums for a common understanding of due diligence.”

VI. Monitoring [page 41]

“The National Action Plan marks the starting point of a process that will be continuously updated and developed. The process will be shaped by the implementation of the measures for which this Plan provides as well as by a comprehensive procedure for monitoring the implementation of these measures by all players.

To this end, the Federal Government is planning, subject to budgetary approval, the immediate execution of the following steps: …

The interministerial committee will verify the implementation and coherence of the adopted measures and drive forward the development of the NAP implementation process. The main areas of activity to come under its scrutiny will be the measures relating to the state duty to protect (public procurement, promotion of external trade, etc.) and the fleshing-out of due diligence obligations (chapter III above), including the planned definition of sectoral specifications and the corresponding support services. …
Progress in the corporate implementation of the elements of human rights due diligence described in chapter III above will be reviewed by means of an annual survey conforming to current scientific standards, beginning in 2018. The survey will be conducted on the basis of a representative sample to establish the number of enterprises that have introduced the elements of due diligence listed in chapter III above and will also include qualitative interviewing on the substantive depth of these measures and the challenges encountered during their implementation in enterprises. The yardstick for this review will be the objectives formulated in chapter III.
On this basis, the review will establish whether at least 50% of all German-based enterprises with more than 500 employees have incorporated the elements of human rights due diligence described in chapter III into their business processes by 2020. The review will also include a ‘comply or explain’ mechanism, whereby enterprises that are not implementing particular procedures and measures can explain why this has not been happening. An updated status report will be produced in preparation for a revision of the 2016 – 2020 National Action Plan.”

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.

Irish expertise has also been commissioned by multi-national corporations and technical cooperation programmes to undertake third party audits in the context of supply chain due diligence on factory standards. The design and implementation of a long-term building inspection and enforcement regime for all buildings in Bangladesh has, for example, been greatly assisted by Irish engineering expertise. Where possible, including through our Overseas Development Assistance, the Government will look to support such initiatives.”

Section 3: Actions

II: Initial priorities for the Business and Human Rights Implementation Group [page 18]

“i. develop a practical toolkit on business and human rights for public and private entities within 12 months to assist them in their human rights due diligence

iii. Encourage and support awareness of effective human rights due diligence by State owned or controlled companies.

iv. Encourage and support effective human rights due diligence in the context of State support to business and NGOs.

vii. Promote awareness of relevant multi-stakeholder and multilateral initiatives such as the UN global Compact, the Principles for Responsible investment and the Children’s Rights and Business Principles among state owned or controlled companies.

ix. Encourage companies and NGOs funded by the State to carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risk of adverse human rights impacts.

xi. Encourage and facilitate the sharing of best practice on human rights due diligence, including effective supply chain audits”

Annex 1 – List of additional and ongoing actions to be carried out across Government commits

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.”

I. Guidelines and general principles

“(…) the second Italian NAP-BHR intends to strengthen the application of the UNGPs through a series of complementary measures, referring in particular to the following guidelines:

– the need to study in depth innovative issues related to technological development and artificial intelligence – also in relation to the Declaration of Rights in the Internet adopted by the Italian Parliament on 31 July 2015, in order to highlight their possible impact on the enjoyment of human rights, as well as an adequate action of corporate Due Diligence, and further innovative issues related to activities promoted by cultural companies with an important impact on the promotion of human rights” (p. 7)

II. Premises

b) Italy and the United Nations Guiding Principles on Business and Human Rights (UNGPs)

“The NAP addresses the issue of the negative impact of business activities on human rights and identifies specific commitments with the aim of effectively integrating the UNGPs into the national system and business activities and introduces limited objectives and actions, with reference to the national context translated into the following priorities:

The promotion of corporate processes of Human Rights Due Diligence, aimed at identifying, preventing and mitigating potential risks, with particular attention to small and medium-sized enterprises” (p. 10)

c) National Priorities

“1. Strengthening of the process to outline a regulatory framework for human rights due diligence, in accordance with international standards and developments in the EU, in order to identify, prevent and mitigate risks and manage eventual human rights violations by business companies.

(…)

4. A collective awareness of the impact that new technologies, especially artificial intelligence, could have on the enjoyment of human rights, while paying attention to the promotion of corporate due diligence processes on human rights within the activities of those companies involved in research and development of new technologies.” (p. 11)

III. Expectations towards business companies

“A more recent shift in 2020 has been recorded in the debate focused on the principle of Due Diligence in the supply chain, which is considered fundamental for companies wishing to carry out sustainable production activities that respect human rights.” (p. 12)

IV. Italian ongoing activities and future commitments

Gender dimension

“Italy has domestically transposed Directive (EU) 2014/95 on non-financial reporting through Legislative Decree No. 254/2016 and, in this context, an important inspection and verification activity by CONSOB of non-financial reporting is being conducted. Its ultimate aim is to verify adequate and transparent information along the supply chain, and also on processes of Due Diligence and management of the risk of violation of human and labour rights along the supply chain.” (p. 34)

Responsible Conduct and Due Diligence in the framework of the United Nations, OECD and European Union

“Italy has followed the above-mentioned process and will continue to provide its contribution to the international debate, taking into proper consideration not only potential risks depending upon lack of Due Diligence but also the factual impact of business conduct stemming from a scarce Due Diligence.” (p. 44)

Training activities on human rights

“(…) the Committee has received and submitted to the attention of the GLIDU, an “open letter” addressed to institutions by academia on the issue of Due Diligence, in the perspective of the synergic relationship between business and human rights.” (p. 45)

Internationalization of companies

“The strategic role of public agencies (in Italy SACE and SIMEST, with reference also to the Cassa Depositi e Prestiti – CdP system) makes them more exposed to the risk of being associated or directly linked to human rights violations: both agencies have integrated the OECD Common Approaches and carry out a Due Diligence analysis on the potential social and environmental impacts of their operations. In the management of financial instruments of development cooperation, with particular regard – but not limited to – facilities to Italian companies participating in joint ventures in partner countries (…)” (p. 51)

“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

“15. Conduct a systematic review of the legislative system in accordance with international standards on Due Diligence of companies.” (p. 63)

“26. Promote the dissemination of EU and international Due Diligence standards to businesses.” (p. 66)

“32. Participate in relevant OECD, European Union and other international initiatives on sustainable supply chains, human rights and Due Diligence.” (p. 66)

“34. Through new mechanisms of monitoring and recognition of business activities, provide for an analysis of the Due Diligence of public or state-controlled companies, including non-financial reporting.” (p. 66)

“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.” (p. 67)

“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”).” (p. 67)

“44. Support initiatives in all major international systems with the aim of developing tools to promote and strengthen ‘fair competition’ for the promotion and protection of human rights, including through the use of Due Diligence mechanisms, and foster the exchange of experiences with partner countries, both at European and international level, and with international organizations such as the United Nations, UNECE, OECD, ILO, UNICEF, IOM and the European Union.” (p. 67)

“48. Disseminate principles adopted in relation to emerging technologies such as artificial intelligence for human rights compliance with a Due Diligence approach.” (p. 68)

“50. Contribute, through exchange with governments and social partners, to good practices and common strategies to support the application of Due Diligence mechanisms in the debate on “Decent Work in the Global Supply Chain” promoted by ILO.” (p. 68)

The state’s expectations of business enterprises

With this Action Plan, the Government commits to encouraging the development and promotion of human rights due diligence in business and puts forward the recommendation and the expectation that economic operators will set up a mechanism for human rights due diligence. (pg. 7-8)

Principle 2 – States sets expectation for respecting human rights

[T]he Government of the Republic of Slovenia expects economic operators to set up a human rights due diligence mechanism to facilitate the identification, prevention and mitigation of adverse human rights impacts, as well as to report on their mitigation measures. Human rights due diligence includes assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed. Enterprises provide human rights due diligence reports as part of their financial or sustainability reports. The Government of the Republic of Slovenia will strive for the development and implementation of human rights due diligence in business and will maintain dialogue with stakeholders concerning the implementation of human rights due diligence in practice. This Action Plan provides further information on human rights due diligence in the annex ‘Guidelines on the implementation of human rights due diligence in business’. (pg. 11)

Principle 3d – Human Rights Due Diligence

With this Action Plan, the Slovenian Government recommends that business enterprises based in Slovenia practice human rights due diligence throughout the business process to guarantee human rights in business in accordance with the UN Guiding Principles. It also recommends they include due diligence reports in their annual reports or in sustainability reports. The Guidelines on Corporate Human Rights Due Diligence are included as an annex to the Action Plan to help draft due diligence reports. (pg. 22)

The Slovenian Government will strive to develop and foster human rights due diligence in business operations, and promote its recommendations for business enterprises, with a focus on those owned or co-owned by the state. When monitoring the implementation of the Action Plan, the Slovenian Government will continue the dialogue with the business sector, trade unions, NGOs and other partners on the implementation of human rights due diligence in practice, including the designing of mechanisms and tools for this purpose. To support the implementation of human rights due diligence, the Government will examine the possibilities of carrying out projects aimed at informing enterprises of the content and methodology of due diligence plans, including by providing counselling for its drafting. (pg. 23-24)

Principle 31 – Operational-level mechanisms

Slovenia will continue its efforts to establish cooperation with non-governmental organisations, businesses, trade unions and academia, to encourage enterprises to strive for continuous development and to apply the relevant appeal mechanisms to address the alleged or potential violations of human rights in business processes, also through human rights due diligence. (pg. 42)

Implementation of the National Action Plan

The review of the fulfilment of commitments with further proposals is conducted in multi-stakeholder form. Furthermore, the Ministry promotes, and steers activities aimed at developing mechanisms and tools for conducting human rights due diligence. (pg. 43)

Annex I – Human Rights Due Diligence

The UN Guiding Principles on Business and Human Rights define human rights due diligence as a process carried out by business enterprises to identify, prevent and mitigate adverse impacts on human rights, as well as to report on methods to reduce such impacts. Human rights due diligence is a permanent internal process and must be carried out by a responsible company to an extent appropriate to its size, sector, nature and geographical area to ensure respect for human rights. In addition, it is recommended that an enterprise also carry out human rights due diligence with its contractual partners and uses its influence to contribute to the acceptance of, and respect for, human rights. Human rights due diligence falls into the context of other careful assessments within the framework of the enterprise’s risk management. (pg. 44)

Annex I – Human Rights Due Diligence in Practice

The implementation of human rights due diligence can be summarised in five steps, which include adopting the commitment to respect human rights throughout business operations, setting up a structure for due diligence in all internal and external relations, a priority analysis, due diligence implementation through mechanisms for detecting, and responding to, violations and monitoring of, and reporting on, due diligence and respect for human rights. (pg. 45)

Guiding Principle 2

The State expects from Spanish companies, in Spain and abroad, a behavior consistent with its responsibility to respect human rights, which implies that they must act with due diligence, depending on their size and circumstances, to avoid the violation of the rights of third parties and to deal with the adverse impacts of their activity. In this regard, in addition to recalling the obligation incumbent upon the State to protect human rights, which includes abuses that may result from business activity, also the need to preserve the reputation of the State and to promote the Brand Spain should be noted.

Measure 7

“The Government will establish networks among Spanish companies or that the ones that operate in Spain for the promotion of: measures, procedures or internal systems that can effectively contribute to the prevention and/or mitigation of the negative consequences of business activities on human rights; as well as for the dissemination of good practices aimed to avoid these consequences, or to influence their avoidance, reduction or remedy. The establishment of procedures for internal assessment and determination of action will be promoted in a manner that avoids other negative consequences on human rights.”

Measure 8

“The Monitoring Commission will design and submit to the Government the adoption of an incentive system that includes both large companies and Small and Medium Enterprises (SMEs) that carry out policies in the field of human rights. These incentives may be economic, commercial, visibility and image, or other nature, to encourage companies to have policies and reliably certify that they have implemented adequate procedures at a global level according to their size and circumstances, namely:

A public commitment to assume its responsibility to respect human rights in accordance with the provisions of the Principle no. 16;
A process of due diligence aligned with the sectorial guides regarding the OECD (due diligence guidance), and based on the dialogue with stakeholders that allows identification, prevention, mitigation, and accountability of how they address the impact of their own activities and those that are directly related to their business relationships in accordance with the provisions of Principles no. 17 to no. 21;
Some processes that allow to remedy all the negative consequences on human rights that have caused or contributed to provoke according to what is established in Principles no. 22, no.29, no. 30, no. 31.”

Guiding Principle 3

Measure 9

“The Government will train the personnel of the State Foreign Service, in accordance with Law 2/2014, of March 25, of the Action and of State the Foreign Service, as well as to the agencies in charge of the internationalization of business abroad about the responsibility of companies to respect human rights and due diligence and redress procedures, and will incorporate the Guiding Principles into the Annual Plans for External Action and the Brand Spain. Likewise, through its Diplomatic Missions, Permanent Representations and respective Sectorial Offices, especially the Economic and Commercial Offices, as well as through the Consular Offices, Technical Cooperation Offices and Training Centers of Spanish Cooperation AECID abroad, will disseminate tools and guidelines according to the characteristics of each country.”

Measure 10

“In order to increase transparency, and the confidence of consumers and investors on Spanish companies, the Government will compile the reports that companies write voluntarily, in accordance with the Spanish Strategy for Corporate Social Responsibility, and the Article 39 of the Sustainable Economy Law. It will be encouraged that these take into account the impact of their activities on human rights, including the value chain, introducing a specific chapter for that purpose. Likewise, and in relation to the reports and reports mentioned in the article 35 2 a) of the Sustainable Economy Law, which binds state business corporations, and public business entities attached to the General State Administration, it will be promoted the inclusion of a section on human rights. In addition, the transposition of Directive 2014/95/EU on disclosure of non-financial information and information about diversity by certain large companies and certain groups will be carried out.”

Guiding Principle 4

… Spain supports the OECD Council Recommendation on common approaches for export credits which benefit from official support and social and environmental due diligence.

Guiding Principle 7

Measure 4

“The Government will promote the application of the OECD Due Diligence Guide for Supply Chains Responsible for Minerals in Conflict or High Risk Areas.”

Guiding Principle 25

Measure 1

“Within one year from the approval of this Plan, the Monitoring Commission will prepare a report on the legal mechanisms through which the civil liability of companies that cause damage or harm to human rights, including damage or harm caused through the lack of action on due diligence for the prevention of their own behavior, or that of their employees or agents, or that of the companies belonging to the same business group.”

2 The corporate responsibility to respect human rights [page 14]

“In keeping with the UN Guiding Principles, businesses’ human rights efforts are expected to include the following main points: …

Procedure …

Establish an integrated and ongoing process in the company to identify, prevent and manage human rights risks and opportunities, as appropriate to the size, nature and context of the operations, i.e. due diligence”

Annex: Measures taken [page 22-24]

The State as actor

“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).”

Action by government agencies

“Over and above the projects and sectors covered by the OECD’s ‘Common Approaches’ recommendations, the EKN has requirements and processes in place for conducting due diligence with respect to the environment and human rights in all other business transactions. The EKN also produces country risk analyses for many countries (www.ekn.se). The due diligence and any more in-depth review proceed from the potential seriousness of the impact of a business transaction and depends on the size of the transaction. …
The Swedish International Development Cooperation Agency (Sida) has developed forms of cooperation with the private sector with a view to mobilising additional resources for development. CSR is a precondition for cooperation. Based on the UN Guiding Principles on Business and Human Rights, the OECD Guidelines for Multinational Enterprises and the principles of the UN Global Compact, a due diligence tool has been developed for assessing and facilitating dialogue with potential partners on business and human rights. …”

Annex: Measures planned [page 28-29]

How can the State support the business sector?

“The Government Offices is considering conducting special due diligence in sectors facing distinct challenges.”

The State as owner

“The Government will work to increase knowledge about the UN Guiding Principles on Business and Human Rights in state-owned companies and will ensure that these companies, where appropriate, conduct human rights due diligence in order to assess and address any significant risk to human rights.”

Corporate action

“The Government’s clear expectation is that companies operating in Sweden or abroad comply with the UN Guiding Principles for Business and Human Rights and other relevant guidelines in this area, and review their due diligence and redress mechanisms. Companies operating in markets where human rights challenges are particularly serious should place special emphasis on work in the area.”

Objectively verifiable indicators	– Benchmark: NAP 1 and National Baseline Assessment (NBA) [Etude de base] – Contacts made by the political level – Follow-up by the administrative level – Reactions from the business community
Verification sources	× Letters, e-mails and minutes of meetings × Discussions and decisions at internal governance level × Annual reports × Signings of the National Pact [Pacte National]
Expected results	× Presentation of the National Pact to the companies × Increase in: § Formal commitments to apply the UNGPs § Due diligence processes in place § Remedies in place § Centralisation of documentary resources for economic actors × Serve as good practice for other companies, including those in which the state has a minority stake
Implementation timeline	× 1st phase: first semester 2020 × 2nd phase: duration of NAP 2
Means of implementation	× Means of the ministries concerned × Internal resources of the companies concerned × Under the direction of: MAEE (Ministry of Foreign and European Affairs)

Objectively verifiable indicators	× Benchmark: NAP 1, National Baseline Assessment (NBA) [Etude de base], CCDH’s (Commission consultative des Droits de l’Homme) Position Paper, position paper of l’Initiative pour un devoir de vigilance, position of the UEL (Union des Entrepises Luxembourgeoises) × A number of meetings for discussing the issue
Verification sources	× Study on the possibility of legislating a duty of care × Work of the Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »] × Eventually, the work of an inter-ministerial sub-group
Expected results	× Definition of the scope and content of the study × Analysis of legislative initiatives abroad, at the European and at the UN level × Assessment of the pros and cons and opportunities and limitations of a legislative approach × Analysis of the existing legislation × Analysis of the possible impact of legislation on the respect of human rights in the economic activities of companies × Level playing field for companies
Implementation timeline	2020
Means of implementation	× MAEE (Ministry of Foreign and European Affairs) / Ministry of Justice × CCDH (Commission consultative des Droits de l’Homme) × l’Initiative pour un devoir de vigilance (Inititative for the duty of care) × Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »] × External experts

Objectively verifiable indicators	× Benchmark: Coalition agreement
Verification sources	× Report from the MAEE (Ministry of Foreign and European Affairs) × Follow-up in the Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »]
Expected results	Regular information of the working group members, sharing of published official documents and proposal of the working group to the Ministry
Implementation timeline	Duration of NAP 2
Means of implementation	× MAEE (Ministry of Foreign and European Affairs)

Objectively verifiable indicators	× Benchmark: NAP 1 × National Baseline Assessment (NBA) [Etude de base] × Evaluation from the “Business Partnership Facility”
Verification sources	× Letters, e-mails and minutes of meetings × Discussions and decisions at internal governance level × Annual reports × Signings of the National Pact [Pacte National]
Expected results	Increase in: × formal commitments to apply the UNGPs × due diligence processes in place
Implementation timeline	Duration of NAP 2
Means of implementation	× Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »] × Competent ministries × Directorate for Cooperation and Humanitarian Action

Objectively verifiable indicators	× Content of university courses in law and economics
Verification sources	× University of Luxembourg, Faculty of Law, Economics and Finance
Expected results	× Modules on the UN Guiding Principles and due diligence are integrated into existing training (e.g. in the context of a Master in Management) × Coherence of training content
Implementation timeline	Duration of NAP 2
Means of implementation	× University of Luxembourg × MAEE (Ministry of Foreign and European Affairs), MENJE (Ministry of Justice) × House of Training × Employers’ chamber [Chambre des salariés] × NGO