Mandatory human rights due diligence

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 ”

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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.

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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.

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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.”

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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.”

Read more about Denmark

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.”

Read more about Finland

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.

…

Read more about France

There is no explicit mention of human rights due diligence in the Business and Human Rights Chapter of the Georgian Human Rights NAP.

Read more about Georgia

The German NAP includes a chapter on due diligence and reference is made to due diligence throughout the NAP.

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. …

1. 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.”

Read more about Germany

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.”

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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)

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Chapter 2. Action Plan

2. Areas of the NAP

(3) Measures of the Government Promoting Corporate Responsibility to Respect Human Rights

A. Measures Related to Domestic and Global Supply Chains and Promotion of Human Rights Due Diligence Based on the UNGPs

(Existing framework/Measures taken）

Japan’s Stewardship Code and Corporate Governance Code refer to grasping the status of investee companies and corporate information disclosure to promote sustainability initiatives, including elements of ESG issues. In addition, the Stewardship Code, which was revised again in March 2020 also includes reference to consideration on sustainability when holding dialogue between institutional investors and investee companies. Furthermore, the Guidance for Collaborative Value Creation was published as a guideline for dialogue and disclosure on voluntary and proactive initiatives of companies on non-financial information, including ESG factors.

Under the Women’s Participation Act, businesses that regularly employ 301 or more workers are obligated to: (1) understand the status of women’s participation and advancement in business enterprises and analyze issues; (2) establish, notify, disseminate, and publish an action plan incorporating quantitative goals and initiatives based on the understanding of the status and analysis of issues; and (3) publish information on the company concerning women’s participation and advancement in the workplace. These initiatives were enhanced with the partial revision of the Women’s Participation Act in May 2019.

With respect to the environment, corporate initiatives are being promoted with the establishment of the Environmental Reporting Guidelines. In August 2020, the “Introductory Guide on Environmental Due Diligence along the Value Chains: Referencing the OECD Guidance” was issued as a manual, including points to note in conducting environmental due diligence in relation to risk management and value chain management stated in the Environmental Reporting Guidelines. The Guidelines state that human rights are integral to address some measures regarding environmental issues, and explains that environmental due diligence is required as part of responsible business conduct and integrated with human rights.

In terms of awareness-raising activities and support, studies and research have been conducted by relevant institutions, including the Institute of Developing Economies of the Japan External Trade Organization (IDE-JETRO) and the Business Policy Forum, Japan. The results have been issued for the benefit of business enterprises.

For Japanese business enterprises engaging in overseas businesses, contact points for Japanese business enterprises (Japanese business support officers) have been established at Japanese embassies and consulates to enhance support for Japanese business enterprises’ overseas expansion.

Among international organizations, ILO provides information to both company managers and workers on how to better align business operations with international labour standards and build good industrial relations through the ILO Helpdesk for Business on International Labour Standards.

In addition to the above, international initiatives, including the Extractive Industries Transparency Initiative and measures against Illegal, Unreported and Unregulated fishing are being implemented, and Japan makes an active contribution to such initiatives.

 

(Future measures planned)

(a) Publicize the NAP and raise awareness of human rights due diligence among Japanese business enterprises in cooperation with industry groups and other relevant bodies

• Promote responsible business conduct by publicizing the NAP among corporations and raising awareness of human rights due diligence, including in supply chains, among industry groups and other relevant bodies. [All Ministries]

(b) Continue to raise awareness on the OECD Guidelines for Multinational Enterprises

• Continue to raise awareness on the OECD Guidelines for Multinational Enterprises in cooperation with relevant organizations to promote responsible business conduct. [Ministry of Foreign Affairs, Ministry of Health, Labour and Welfare, Ministry of Economy, Trade and Industry]

(c） Raise awareness on the ILO Declaration and ILO MNE Declaration

• Continue to raise awareness on the ILO Declaration and the ILO MNE Declaration on the websites of relevant ministries and agencies in cooperation with relevant organizations. [Ministry of Health, Labour and Welfare]

(d）Publicize the NAP and raise awareness of human rights due diligence to Japanese business enterprises operating overseas via Japanese embassies, consulates, and overseas offices of government-related entities

• Publicize the NAP and raise awareness of human rights due diligence with possible cooperation with local agencies and organizations by Japanese embassies and consulates. In so doing, sufficient attention is to be paid to the issue of protection of human rights of workers in supply chains, including the socially vulnerable such as women and children. [Ministry of Foreign Affairs, Ministry of Finance, Ministry of Economy, Trade and Industry]

(e） Raise awareness on the Guidance for Collaborative Value Creation

Continue to boost efforts to raise awareness of the Guidance for Collaborative Value Creation, which is useful for holding dialogue and disclosure relating to non-financial information, including ESG factors for investors and corporate managers and directors. The Guidance can be used as a guide for voluntary and proactive initiatives of companies. [Ministry of Economy, Trade and Industry]

( f ）Steadily implement the Act on the Promotion of Women’s Participation and Advancement in the Workplace

• The revised Act was adopted and enacted at the ordinary parliamentary session in 2019 (effective from June 1, 2020). The expansion of the Act’s scope (to be effective from April 1, 2022) included: expansion of the obligation to develop action plans and to have information disclosure for business enterprises employing 101 or more employees, and the obligation to reinforce information disclosure applied to business enterprises employing 301 or more employees. Going forward, disseminate information on the contents of the revision, and provide support for SMEs to develop action plans for smooth implementation of the revised Act. [Ministry of Health, Labour and Welfare]

(g）Promote information disclosure by business enterprises in accordance with the Environmental Reporting Guidelines

• Promote understanding of environmental due diligence and information disclosure by publicizing the Introductory Guide on Environmental Due Diligence issued in August 2020. [Ministry of the Environment]

(h）Support initiatives by international organizations overseas

• Continue to provide support for efforts, including voluntary contributions to the ILO, such as promoting decent work of workers at the lower tiers of global supply chains and disseminating good practices discovered through those activities. [Ministry of Health, Labour and Welfare, line Ministries]

 

C. Support for Small and Medium Enterprises (SMEs) regarding Business and Human Rights

(…)

(Future measures planned)

(…)

(b) Conduct seminars targeting SMEs in cooperation with economic organizations and civil society

• Continue to implement human rights education and awareness-raising seminars for business enterprises targeting SMEs as part of the project called the Support for Human Resources Development in SMEs and enhance understanding for human rights due diligence. [Ministry of Economy, Trade and Industry]

 

 

Chapter 3. Government’s Expectations towards Business Enterprises

(…)

(2)The Government expects Japanese enterprises, regardless of their size and sector of industry, to respect internationally recognized human rights and the principles concerning the fundamental rights set out in the ILO Declaration; introduce the process of human rights due diligence based on the UNGPs and other related international standards; and engage in dialogue with stakeholders, including those that are part of supply chains. Furthermore, the Government expects Japanese business enterprises resolve issues through effective grievance mechanisms.

 

 

Chapter 4. Framework for Implementation and Review of the NAP

4. The Inter-Ministerial Committee will, particularly during the first year, discuss the following points. For this, the Inter-Ministerial Committee will promptly commence its work after the launch of the NAP.

1. Consider methods for effective and sustainable follow-up (including the discussion on appropriate evaluation indicators).
2. Consider what information is sought by business enterprises in corporation with industry groups and other organizations to ensure that the implementation of the NAP contributes to the introduction of human rights due diligence by business enterprises, as indicated in Chapter 3 under “Government’s Expectations towards Business Enterprises.” Examples of such information could include successful and problematic cases and necessary steps to take going forward. The aforementioned “implementation of the NAP” particularly refers to publication of and awareness-raising for the NAP, and provision of information on the NAP for business enterprises, as mentioned in Chapter 2.2. Areas of the NAP (3) Measures of the Government Promoting Corporate Responsibility to Respect Human Rights.
3. Consider providing opportunities for business enterprises to air their views in cooperation with industry groups and other organizations, to monitor to what extent human rights due diligence has been promoted as a result of the formulation and implementation of the NAP.

 

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CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS 2.2 Kenya’s Experience with Business and Human Rights [Pages 6-7] To develop a sustainable and equitable extractive sector, these challenges must be addressed especially since they have a far reaching impact on human rights. There is need to embed international human rights standards early into the exploration and drilling contracts, impact assessments, due diligence mechanisms and business reporting. This National Action Plan clarifies the Government’s expectation from concerned businesses in this regard.   CHAPTER THREE: POLICY ACTIONS Policy Actions [Page 21] The Government will: i.    Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses; […]   3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18] Human rights due diligence is the primary tool that ensures that businesses identify the human rights risks of their activities, take measures to avoid or mitigate them, and where the harm has already occurred, ensure that the victims have access to an effective remedy. This responsibility extends beyond their activities to their business relationships including suppliers and contractors. There is no mandatory requirement for human rights due diligence. Businesses, including state-owned enterprises, have not embraced the practice of engaging those whose rights are most likely to be impacted by their operations. […]   Policy Actions [Page 19] c)    Human rights due diligence: Require businesses to identify their human rights impacts including through conducting comprehensive and credible human rights impact assessments before they commence their operations and continuously review the assessment to ensure that they prevent, address and redress human rights violations. Such impact assessment should involve meaningful consultation with potentially affected groups and other relevant stakeholders and include particular gendered impacts.   CHAPTER FOUR: IMPLEMENTATION AND MONITORING 4.1. SUMMARY OF POLICY ACTIONS [Annex]  Strategic Objective Policy Actions Key Actors Strategic Objective 1: Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses. OAG&DOJ; State Department of Gender; Ministry of Trade and Industrialization, Ministry of Mining   ANNEX 2: LEGISLATION PROPOSED FOR ENACTMENT OR AMENDMENT S/No. Legislation/Issue Proposals 1. Companies Act, 2015 a)    Development of guidelines for non financial reporting b)   Introduce a requirement for conducting Human Rights due diligence including the particular impacts on gender before approval of licences/permits to businesses.

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The Lithuanian NAP makes no reference to human rights due diligence.

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Part II: Specific objectives of the National Action Plan 2020-2022

1. The state duty to protect human rights

(…)

1.2. Implement pilot projects on due diligence in companies with majority state ownership

 

Context

As a follow-up to NAP 1, it is important that the State continues to set a good example, including by implementing pilot projects on due diligence in majority-owned enterprises. Indeed, under the UN Guiding Principles, States should “take stronger measures to protect companies owned or controlled by them, … including, where appropriate, by requiring the exercise of human rights due diligence”.

The experiences of these pilot projects can be shared by appropriate means.

 

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)

 

 

1.6. Study on the possibility of legislating a duty of care

 

Context

Following the government’s commitment in the coalition agreement to “study the possibility of legislating on a duty of care for companies domiciled in Luxembourg”, the conclusions of the baseline study, the positions expressed by various actors within the working group on the need to introduce a binding duty of care for companies domiciled in Luxembourg, and recent legislative developments in other EU Member States, the possibility of the legislative option at national level is being studied, among others, at the level of the Working Group on Business and Human Rights [GT « Entreprises et droits de l’Homme »].

 

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

 

 

1.7. Follow up on the commitment to introduce a duty of care at a European level

 

Context

Following the Government’s commitment in the coalition agreement that “Luxembourg will support European initiatives to strengthen the social and environmental responsibility of transnational companies in the management of their supply chains and will commit itself at European level to binding and effective legislation”, the conclusions of the baseline study, the positions expressed by different actors within the working group on the need to introduce a binding duty of care for companies, recent legislative developments in other EU Member States and initiatives at the level of the European Parliament, a follow-up of the initiatives taken by Luxembourg in favour of European legislation on duty of care will be carried out in the framework of the National Action Plan.

To this end, regular reports will be made by the Ministry to the working group on the initiatives taken in favour of a duty of care at European level and on the progress of the work.

 

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)

 

 

1.9. Introduce human rights due diligence as advocated by the Guiding Principles into public-private partnership arrangements

 

Context

The public-private partnership mechanisms in place, particularly at the level of development cooperation, provide opportunities to promote the implementation of the UN Guiding Principles on Business and Human Rights.

 

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

 

 

1.14. Create human rights due diligence training

 

Context

At the conference organised in June 2019 by the Ministry of Foreign and European Affairs and the University of Luxembourg, with the participation of high-level international experts, it was emphasised that awareness and concern for the UN Guiding Principles on Business and Human Rights must start with the training of future economic decision makers. Efforts to raise awareness and provide training in secondary and university education on the subject of “business and human rights” promise to increase knowledge of the importance of the subject.

 

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

 

 

2. The corporate responsibility to respect human rights

 

2.2. Finalisation and implementation of the National Business and Human Rights Pact

 

Context

The National Business and Human Rights Pact is one of the concrete flagship actions of NAP 1. A sub-working group has put a lot of effort into the implementation of the National Pact.

Further effort is needed to finalise the process of assessing the annual reports that participating companies are required to submit on the implementation of the Guidelines in their organisations and throughout their economic value chains.

 

Objectively verifiable indicators	×        Benchmark: NAP 1, National Baseline Assessment (NBA) [Etude de base] ×        Text of the National Pact on Business and Human Rights ×        Review of the effectiveness of the instrument in 2022
Verification sources	×        MAEE (Ministry of Foreign and European Affairs) ×        UEL [Union des Entreprises Luxembourgeoises] / INDR [Institut National pour le Développement durat et la Responsabilité sociale des entreprises] ×        Initiative for the duty of care [Initiative pour un devoir de vigilance]
Expected results	×        Critical mass of companies subscribing to the National Pact ×        Annual reports on the implementation of the Guidelines submitted to the Business and Human Rights Working Group ×        Evaluation of annual reports ×        Recommendations to companies
Implementation timeline	–       1st phase: ▪ Operational website ▪ Communication campaign ▪ Prospecting ▪ Launch –       2nd phase: (as soon as possible) signing of the National Pact –       3rd phase: 2020, training and implementation of due diligence processes in companies –       4th phase: (March 2021) submission of first annual reports –       5th phase: (between March and July 2021) evaluation of the first annual reports
Means of implementation	–       MAEE (Ministry of Foreign and European Affairs) –       Ministry of Economy –       UEL [Union des Entreprises Luxembourgeoises] / INDR [Institut National pour le Développement durat et la Responsabilité sociale des entreprises] –       Companies –       IMS –       Business and Human Rights Working Group –       External Consultant

 

The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.

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CHAPTER II – Actions to improve the duty of the state in protection human rights

4. Create the legal framework for business enterprises of all forms of ownership to carry out human rights due diligence in its operations.

Actions and measures to be implemented:

Develop guidelines and methodologies for human rights due diligence, promote them and build capacity for their practical implementation Conduct pilot projects in state and locally owned enterprises and other companies and present human rights due diligence reports to the public.

• Time frame: 2023-2025
• Criteria: The guidelines and methodology for human rights due diligence will be developed. Actions will be taken to promote the guidelines and methodology and to build capacity for conducting human rights due diligence. State and locally owned enterprises, as well as other companies, will be selected to conduct a human rights due diligence pilot project and the results will be presented.
• Implementing organisations: MoJHA, PCSP, Secretariat of National Committee on Gender Equality (NCGE), NHRCM [National Human Rights Committee of Mongolia], Secretariat of the NCHR.
• Jointly implementing organisations: MFA [Ministry of Foreign Affairs], Small and Medium Enterprise Agency (SMEA), CMTU, State and locally-owned enterprises, Non-governmental organisations (NGOs), International Organisations (Ios).

Conduct a study and develop conclusions and recommendations to establish the legal framework for companies to conduct human rights due diligence in their operations and supply chain based on certain criteria (e.g. through amendments and changes to the laws regulating the operation of companies, the Law on Company, the Law on Securities Market and other applicable laws, etc.).

• Time frame: 2025 – 2027
• Criteria: A study will be conducted and conclusions and proposals will be made. Actions to be implemented will be determined.
• Implementing organisations: MoJHA, MLSP
• Jointly implementing organisations: MNCCI [Mongolian National Chamber of Commerce and Industry], Professional associations, state and locally-owned enterprises, NGOs.

Implement a project to support human rights due diligence for business enterprises that provide basic social services (health, education, public transport, landscape management) and legislate the obligations of these companies to prevent, identify and address negative human rights impacts.

• Time frame: 2025 – 2027
• Criteria: A draft law will be developed and submitted for approval. A project to support human rights due diligence will be carried out.
• Implementing organisations: Ministry of Construction and Urban Development (MCUD), Ministry of Education and Science (MES), Ministry of Health (MoH), Ministry of Road and Transport Development (MRTD), Secretariat of the NCHR, Secretariat of the Governor of the capital city, PCSP
• Jointly implementing organisations: Relevant ministries and organisations, Government monitoring implementing Agency (GMIA), IOs, NGOs.

CHAPTER THREE – Actions to improve the responsibilities of business enterprises to respect human rights

3. Strengthen the capacity to conduct human rights due diligence.

Actions and measures to be implemented:

Study and promote the forms of systems where business enterprises conduct human rights due diligence and risk assessment in business operations.

• Time frame: 2023-2025
• Criteria: A study will be carried out and measures to promote the most feasible forms to be introduced will be undertaken
• Implementing organisations: MNCCI, professional associations
• Jointly implementing organisations: NGOs

Implement programmes to share practises, promote awareness, training and capacity building among companies and organisations that have adopted business and human rights policies and have conducted due diligence or risk assessments on human rights in their business activities.

• Time frame: 2023-2027
• Criteria: The adoption of a human rights policy by businesses and organisations shall be encouraged and supported, and actions shall be taken to disseminate and share best practises in adopting such a policy and conducting human rights due diligence
• Implementing organisations: MED, MoJHA, SMEA,
• Jointly implementing organisations: Relevant ministries and organisations, MNCCI, MONEF, state and locally owned enterprises, NGOs.

Build the capacity of law firms, consultancies and civil society organisations providing human rights due diligence services and engage them in activities to introduce and localise the human rights due diligence system in companies and organisations.

• Time frame: 2023-2025
• Criteria: Actions to build capacity and ensure the participation of consultancies and civil society organisations providing legal aid services will be planned and implemented in several phases.
• Implementing organisations: MoJHA, MET, MLSP, MED, MCUD, MEDS, MMHI, MoFALI, MRTD, MoE, NGOs
• Jointly implementing organisations: MFA, Relevant ministries and organisations, Governors of all levels, MGA, AMA, IOs.

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Explicit references to human rights due diligence are highlighted in this section. However, measures to realise specific elements of human rights due diligence can be found in large number of sections of the Netherland’s 2^nd NAP.

Pillar I

Central government procurement and private-sector instruments

Government procurement

“The government’s central procurement strategy includes the International Social Conditions (ISCs). These have applied to all EU contract award procedures since 2017 and aim to establish more sustainable international supply chains by preventing or responding to risks related to working conditions, human rights and the environment. The ISCs are one of the contractual conditions obliging contractors to apply due diligence.“ p. 31.

LINE OF ACTION 3: Improve policy coherence

“This includes both administrative and substantive improvements. For example, central government website content should be consistent in its message about legislation and procurement policy. Other points of focus include how ISC procurement policy relates to the approach set out in the UNGPs and to due diligence policy as set out in the OECD Guidelines. Existing documents on ISC policy such as guidelines and specifications will, where possible, be brought in line with the OECD Guidelines for Multinational Enterprises and the UNGPs. ….” p. 33.

Including ‘business and human rights’ in the Netherlands’ foreign policy

Integrating responsibilities in conflict areas and fragile states into policy

“States should pay particular attention to the human rights risks that can occur when enterprises conduct business in conflict areas, and help ensure that businesses do not exacerbate existing risks. States must also take action against businesses which become involved in human rights abuses. Although the due diligence procedures described in the UNGPs and the OECD Guidelines are not fundamentally different for conflict areas (the guidelines are based on proportionality, so the higher the risk, the more complex the procedures), the Dutch government notes that there may be extra risk of human rights abuses. This is in line with the report on doing business in conflict areas by the UN Working Group on Business and Human Rights, which states that ‘heightened’ due diligence is required in conflict areas. Dutch efforts in fragile states and conflict areas are therefore partly based on a ‘conflict-sensitive approach’. This approach aims to take better account of the unforeseen effects of business activities in the community and to ensure that activities do not exacerbate existing conflicts or lead to new ones.

The Netherlands is committed to collaborating with other donors and organisations in making joint analyses which include a gender dimension. An example here is Dutch investment in the International Finance Corporation’s (IFC) Conflict Affected States in Africa (CASA) initiative. A conflict-sensitive approach to private sector development was central in the 13 fragile states in which this IFC project was implemented. Furthermore, the European Conflict Minerals Regulation, which came into effect in January 2021, requires all EU businesses importing certain metals and minerals to apply due diligence. All EU member states must appoint a national supervisory authority to monitor businesses’ compliance with this Regulation. In the Netherlands this is the Human Environment and Transport Inspectorate (ILT). Regular meetings between the European Commission and member states aim to ensure uniform implementation of the Regulation.

The Ministry of Foreign Affairs has drawn up conflict sensitivity guidelines for private sector development for its staff in The Hague and at its embassies around the world as well as for employees of implementing partners, with the aim of making conflict sensitivity a cross-cutting component of Dutch foreign policy. The guidelines explain the possible context-specific risks and responsibilities of conducting business in conflict-sensitive regions. Conflict-sensitive policy requires the early identification of conflict and instability risks (early warning) so that these can be addressed in a timely manner (early action). The involvement of local stakeholders is advisable here. … The government guidelines will, when applicable, be addressed in embassies’ Multiannual Country Strategies, with implementing organisations and in dialogue with the Dutch business community in order to improve the integration of conflict sensitivity into Dutch foreign policy. Furthermore, conflict sensitivity guidelines for the Dutch business community will be drawn up in collaboration with companies, NGOs and implementing organisations, with an additional focus on Dutch SMEs. These guidelines can be used to carry out

the contextual analyses that businesses need to complete before doing business in such areas. As noted in chapter 2 of this NAP, businesses and implementing organisations share this responsibility with governments. Businesses are thus likewise expected to assume responsibility, especially in relation to conflict areas and fragile states.

The RBC support office for Dutch businesses abroad can provide a means of disseminating the forthcoming conflict sensitivity guidelines for the business community more widely.” pp. 43 and 44

Pillar II

Due diligence at EU level

“A general due diligence obligation, ideally at European level, is the key element in the smart mix of RBC measures. This obligation should not only promote RBC but also respect a level playing field for businesses, prevent fragmentation and enhance impact. The government therefore welcomed the publication on 23 February 2022 of the European Commission’s proposed Corporate Sustainable Due Diligence Directive (CSDDD). This proposal is the first step towards European legislation. It aims to encourage businesses to contribute to respect human rights and the environment in their own operations and throughout their value chains.

The Netherlands also has its own responsibilities. The 2021-2025 coalition agreement ‘Looking out for each Other, Looking Ahead to the Future’ details agreements committing the Netherlands to encouraging RBC legislation in the EU and to introducing national RBC legislation that promotes a level playing field with neighbouring countries and implementation of forthcoming EU legislation. The Commission’s proposal will therefore form the basis of a national policy proposal, in anticipation of the forthcoming CSDDD.

The aim is for the two proposals to run parallel to each other, so that any anticipated changes to the draft Directive can be included in the national legislative process. The proposed EU Corporate Sustainability Reporting Directive (CSRD – see next section) is also relevant in relation to due diligence. This revised Directive will require a larger number of businesses to be transparent in their reporting on relevant sustainability criteria and the due diligence processes applied. In addition to this legislative proposal on reporting, the inclusion of a due diligence process is an approach used in several EU instruments, such as the proposal for an EU Regulation to combat deforestation, the planned Batteries Regulation and the Conflict Minerals Regulation referred to above.” p. 55

Corporate Sustainability Reporting Directive (CSRD)

“Non-financial reporting obligations were applicable to all listed companies with more than 500 employees since 2017. The annual report of these companies must include information on how they respect human rights. The European Commission’s recent legislative proposal on CSRD requires a greater number of businesses than before to provide information on the impact of sustainability factors on the company as well as the company’s impact on people and the planet. The draft Directive’s scope includes all large credit institutions and insurance companies, all large enterprises and all listed companies, with the exception of listed micro-companies. In line with the UNGPs, accountability should be given of the due diligence process, including a description of any negative impacts in the company’s value chain resulting from its own activities or from its business relations and supply chain. The Commission’s proposal is that large, listed companies and other large enterprises, banks and insurance companies should start reporting as of financial year 2023, and small and medium-sized listed companies as of financial year 2026.” p. 56

ACTION POINTS PILLAR 1	Aim	Responsible party	Timeline
Due Diligence and CSRD
Negotiate ambitious due diligence legislation at EU level within existing frameworks.	Implement suitable due diligence legislation at EU level.	BZ	From 2022
Develop national due diligence legislation mindful of maintaining a level playing field with neighbouring countries and of the implementation of potential EU legislation	Improve application of RBC by businesses via both EU and national legislation.	BZ	2022-2025
Negotiate the Corporate Sustainability Reporting Directive (CSRD)	National implementation of reporting obligations in line with the CSRD.	J&V, FIN	The Directive is expected to be adopted by EU legislators in 2022.

Sector-wide cooperation

“… The government aims to continue to encourage sector-wide initiatives aimed at implementing due diligence and at raising its impact on specific themes or value chains, in line with the OECD Guidelines and the UNGPs. By collaborating with civil society organisations, businesses can impact the value chain by making linkages and jointly increasing their influence. There is a connection between the development of financial support mechanisms for sector-wide due diligence and the development of the other components of the RBC policy mix, particularly legislation. A supervisor authority role requires a change in the government’s role in sector-wide cooperation on due diligence. This means it is time to discontinue the RBC agreements in their current form. The government will continue to be part of the current RBC agreements for the agreed time frame and will continue to participate in ongoing negotiations towards the end. As part of the RBC policy mix, the new instrument for sector-wide cooperation aims to facilitate the implementation of due diligence by businesses through collective action on one or more steps of the process.” p. 58.

ACTION POINTS PILLAR 2	Aim	Responsible party	Timeline
Sector-wide Cooperation
Define the frameworks for sector-wide cooperation as part of the RBC policy mix.	Support sector-wide cooperation in order to apply due diligence. t	BZ	2022

p. 59.

RBC support office

“The new RBC support office will form a one-stop shop for RBC policy by supporting all businesses, including those that do not (as yet) fall under the scope of current legislation, in their application of due diligence. In addition to its informative role, other instruments such as grants can also be entrusted to the support office. The support office can provide resources to businesses and promote knowledge exchange between businesses and the embassy network.

Services offered by the RBC support office may include:

• Supporting businesses in the implementation of the OECD Guidelines and the UNGPs, including providing information and guidance through the different steps of the due diligence process.

• Offering and providing risk-specific knowledge and expertise, for example about major RBC risks such as the right to form trade unions and bargain collectively, a living wage, combating child labour and gender-related risks, or about RBC risks in specific sectors or geographic regions.” P. 59.

ACTION POINTS PILLAR 2	Aim	Responsible party	Timeline
RBC Support Office
Define the frameworks for sector-wide cooperation as part of the RBC policy mix.	Support sector-wide cooperation in order to apply due diligence.	BZ	March- August 2022
Set up the RBC support office.	Support businesses in their application of due diligence.	RVO	From September 2022

p. 60

Pillar III

Introduction

“The UNGPs stipulate that a state’s obligation to protect against human rights abuses by companies includes the duty to take appropriate judicial, administrative, legislative or other steps to ensure that when such abuses occur within their territory or jurisdiction those affected have access to effective remedy. …

The proposed due diligence legislation will strengthen this ecosystem, creating a stronger legal basis on which to call European businesses to account regarding any violations. The due diligence legislation will also require businesses to comply with step 6: setting up a complaints mechanism. These efforts to strengthen both state-based and non-state-based mechanisms will lead to the creation of an ecosystem for remedy for affected parties.” p. 62.

Strengthening complaints and dispute mechanisms

“The government expects businesses to conduct due diligence in accordance with the OECD Guidelines as described in Pillar 2. This includes the responsibility of businesses to address negative consequences via a complaints or dispute mechanism. Step 6 of the due diligence process (provide or cooperate in remediation) also contributes to the non-state-based component of the due diligence ecosystem.

Dutch companies often have an internal complaints mechanism for employees. A complaints and dispute mechanism as described in the UNGPs should, however, also be accessible to all actually or potentially injured parties outside the company. This prevents legal proceedings and plays an important role in prevention, as it offers scope to report evidence of abuses and thus prevent escalation. Businesses themselves can use the information from complaints, as part of their due diligence process, to identify negative consequences of their activities. An effective complaints mechanism can thus help trace systemic problems.

The NBA concluded that dispute settlement (including the results of dispute settlement) and remedy organized by businesses themselves still receive little attention. This is in line with the monitoring study into the application of the OECD Guidelines by businesses in the Netherlands, which showed that so far only very few businesses are working on offering access to remedy.

The government points out that providing access to remedy is an essential step in the OECD Guidelines and must form part of a broad obligation to conduct due diligence. To this end the government will continue in the years ahead to encourage the establishment of complaint and dispute mechanisms as an element of access to remedy.” p. 67.

Access to remedy in sector-wide cooperation

“The instrument for sector-wide cooperation will support businesses in collaborating on due diligence processes. Establishing a collective complaints mechanism may be one form of collaboration. See Pillar 2 for more details of sector-wide cooperation. As stipulated by the UNGPs and the OECD Guidelines, businesses have an individual responsibility to establish a functioning complaints and disputes mechanism and it is the responsibility of the supervisory authority to call individual businesses to account where necessary. Businesses may find it logical to work with other companies on this obligation, as sector-wide collaboration agreements can help participating businesses set up complaints mechanisms and make them accessible. This can contribute towards lower costs, increased efficiency and greater independence.” p. 67.

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The Nigeria NAP provides a list of existing constitutional obligations, domestic legislation, internation obligations, and police and administrative steps. This breakdown only looks at the list of challenges and the implementation of the 3 pillars of the UNGPs.

PILLAR 1 – STATE DUTY TO PROTECT HUMAN RIGHTS
ACTIONABLE ITEMS
B. LEGLISLATION AND POLICIES
“Government shall improve human rights protection in business through legislation, policy initiatives, programmes and seminars interventions in the following ways:
a. Enforce and review existing laws or enact new legislation that require businesses to respect human rights in their operations.” (p. 157)

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3. The Corporate responsibility to respect human rights 

Due diligence [page 33]:

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. Human rights due diligence:

(a) Should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships;

(b) Will vary in complexity with the size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations;

(c) Should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.

Norwegian NAP refers to HRDD also in following sections:

The Government’s expectations of business enterprise [page 9]:

Business enterprises have an independent responsibility under the UN Guiding Principles to respect human rights by developing a public strategy or policy, exercising due diligence and helping to ensure a consultation and remediation process for individuals and communities affected by their activities. (…) In brief, the Government expects business enterprises to: (…) exercise due diligence and assess the human rights-related risks in the context of their operations. This applies particularly to enterprises that operate in demanding markets.

Due Diligence by GIEK, Export Credit Norway and Innovation Norway [page 24]:

GIEK and Export Credit Norway often provide financing for the same projects, and have established formal cooperation on CSR. The cooperation includes human rights due diligence based on the expectations of export credit institutions set by the UN Guiding Principles, and is an integrated part of GIEK’s and Export Credit Norway’s loan and guarantee activities. All projects for which financing is being considered are submitted to an internal risk classification, even projects where this is not required by the OECD Recommendation of the Council on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence. On the basis of the risk classification and considerations relating to opportunities for exerting influence, appropriate measures are taken to avoid, reduce and/or remedy potentially negative outcomes. In markets where there is a high risk that human rights will not be safeguarded in connection with business operations, it may be logical for example to require business enterprises to have adequate systems and strategies for risk assessment and follow-up. Innovation Norway practises environmental and social due diligence when dealing with all financing applications from business enterprises. The information on the company and the project for which support has been requested is assessed on the basis of a red flag checklist and a checklist based on the 10 principles of the UN Global Compact and adapted to Innovation Norway’s mandate and target groups.

The red flags are: risk of corruption, the nature of the company’s activities in low-cost countries, ethical dilemmas and environmental pressure from commercial activities. CSR scores reflect the level of CSR-related risk connected with the project or whether CSR may be a reason for giving the case priority. One of the conditions laid down in the contract with the client is that the enterprise must have high ethical standards and avoid contributing to corruption, human rights violations, poor working conditions or adverse impacts on local communities or the environment.

The Corporate responsibility to respect human rights with regards to conflict areas [page 32]: Political unrest and conflict entail a particularly high risk of human rights abuses. Companies that operate in such areas should therefore exercise particular due diligence if they are to avoid becoming involved in such abuses.

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CHAPTER 3: National Action Plan Priority Areas and Proposed Actions

3.2. NAP Priority Areas

3.2.1. Financial Transparency, Corruption and Human Rights Standards in Public Procurement Contracts

Proposed Actions

• Federal (page 18)

‘10. Review and update the Public Procurement Regulatory Authority Rules to incorporate human rights due diligence as a key criterion in the bidding and evaluation process, and give preference to businesses that demonstrate actions taken to meet their human rights obligations.

Performance indicator(s): (i) Updated rules incorporating human rights due diligence

UN Guiding Principle(s): 1, 2, 3, 4, 5, 6, 8, 9

Relevant SDG(s): Goal 8 – Decent Work and Economic Growth; Goal 9 – Industry, Innovation, and Infrastructure; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 10 designating the Ministry of Law and Justice, the Ministry of Human Rights, the Public Procurement Regulatory Authority as Leading Entities, and designating the Provincial Law Departments; Provincial Human Rights Departments; Ministry of Commerce; Provincial Commerce Departments; Ministry of Industries and Production; Provincial Industries & Production Departments; Federal Cabinet; Provincial Governments; NGOs & INGOs with relevant expertise on public procurement; legal experts as Additional Entities (page 46).

 

3.2.3. Human Rights Due Diligence (pages 24-25)

‘As established during the NBA and consultative process, the concept of human rights due diligence in Pakistan currently lacks a legislative framework. An anticipated challenge in the implementation of human rights due diligence is uncertainty and reluctance amongst businesses regarding the regulatory requirements and potential costs of abiding by human rights due diligence standards. The responsibility to respect human rights applies to all businesses irrespective of their size. However, effective human rights due diligence frameworks account for the differences between the sectors, operating contexts, and circumstances of different kinds of business enterprises, and the potential severity and scope of their human rights impacts. Consequently, the scale and complexity of human rights due diligence actions undertaken by different enterprises may vary.

Human rights due diligence is an increasingly prominent area of discussion around the globe, not as a tick-box compliance exercise, but as a vital means to obtaining better human rights outcomes. It is anticipated that export markets will be negatively affected in countries which fall behind in addressing human rights violations across their supply chains. A pragmatic mix of human rights due diligence mechanisms, including the adoption of voluntary and common standards by businesses, as well as the development of a legislative and regulatory framework, will support the strengthening of a sustainable and resilient Pakistani economy. The progress of mandatory human rights due diligence legislation around the globe, especially in important trading partners, will be closely followed by the Government of Pakistan. Pakistan benefits from trade schemes such as GSP+, and the continuous and improved protection of human rights in business activity will only serve to further strengthen Pakistan’s international trading relationships.

Consistent Federal and Provincial coordination will be required to effectively conduct oversight and monitoring of compliance with human rights due diligence expectations. Progress in this regard will require strong communication and cooperation between relevant Ministries, Provincial Departments, and regulatory bodies for the establishment and oversight of human rights due diligence standards and guidelines, followed by the gradual development of a legislative framework.’

Proposed Actions

• Federal (pages 25-26)

‘31. Develop policy, including a proposed regulatory model, on the requirement of human rights due diligence for the approval of large-scale projects where the business activity poses a significant risk to the rights of a community at large, and incorporate into relevant existing Rules and Guidelines.

Performance indicator(s): (i) Policy development; (ii) Incorporation into relevant existing Rules and Guidelines

UN Guiding Principle(s): 1, 2, 3, 4, 5, 6, 8, 17, 23

Relevant SDG(s): Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities; Goal 12 – Responsible Consumption and Production; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 31 designating the Ministry of Commerce, the Ministry of Human Rights, the Ministry of Industries and Production, the Provincial Industries and Production Departments as Leading Entities, and designating the Provincial Commerce Departments, the Provincial Human Rights Departments, the Board of Investments, the Pakistan Environmental Protection Agency, the Ministry of Energy, the Provincial Women Development Departments as Additional Entities (page 35).

‘32. Conduct feasibility study of human rights certification and provision of market incentives for businesses which demonstrate respect for human rights across their operations, including conducting human rights due diligence and publicising their efforts. Performance indicator(s): (i) Feasibility study report UN Guiding Principle(s): 1, 2, 3, 8 Relevant SDG(s): Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities; Goal 12 – Responsible Consumption and Production; Goal 16 – Peace, Justice and Strong Institutions 33. Conduct feasibility study on the future enactment of mandatory human rights due diligence legislation in Pakistan, studying the legislative, regulatory, and economic framework in this regard.

Performance indicator(s): (i) Feasibility study report

UN Guiding Principle(s): 1, 2, 3, 8

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities; Goal 12 – Responsible Consumption and Production; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 32 designating the Ministry of Commerce and the Ministry of Industries and Production as Leading Entities (page 55).

‘33. Conduct feasibility study on the future enactment of mandatory human rights due diligence legislation in Pakistan, studying the legislative, regulatory, and economic framework in this regard.

Performance indicator(s): (i) Feasibility study report

UN Guiding Principle(s): 1, 2, 3, 8

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities; Goal 12 – Responsible Consumption and Production; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 33 designating the Ministry of Commerce and the Ministry of Industries and Production as Leading Entities (page 56).

‘34. Conduct a study on the potential impact of the future enactment of mandatory human rights due diligence legislation by major trading partners, such as the European Union, on Pakistan’s competitiveness in export markets, inflows of foreign direct investment, Pakistan’s role in global supply chains, and schemes such as GSP+.

Performance indicator(s): (i) Assessment report

UN Guiding Principle(s): 1, 2, 3, 8, 9

Relevant SDG(s): Goal 8 – Decent Work and Economic Growth; Goal 12 – Responsible Consumption and Production; Goal 17 – Partnerships for the Goals’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 34 designating the Ministry of Commerce as Leading Entity (page 56).

• Federal and Provincial (page 27)

‘35. Develop and launch a Human Rights Due Diligence Partnership Project with the private sector, for the purpose of establishing a framework and standards for human rights due diligence reporting.

Performance indicator(s): (i) Launch of Partnership Project

UN Guiding Principle(s): 2, 3, 11, 12, 15, 17, 23

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities; Goal 12 – Responsible Consumption and Production; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 35 designating the Federal & Provincial Governments, the Ministry of Human Rights, the Provincial Human Rights Departments as Leading Entities, and designating the Ministry of Climate Change; Ministry of Commerce and Textile; Provincial Commerce Departments; Ministry of Communications; Provincial Communications Departments; Ministry of Energy; Provincial Energy Departments; Ministry of Finance, Revenue and Economic Affairs; Ministry of Industries & Production; Ministry of Law & Justice; Provincial Law Departments; Ministry of Inter-Provincial Coordination, Pakistan Environmental Protection Agency; Ministry of Health; Provincial Health Departments; Federal and Provincial Ombudspersons as Additional Entities (page 57).

‘36. Establish voluntary and common standards for conducting and reporting human rights due diligence in business activity, applicable to both the direct operations and across the value chains of public and private enterprises.

Performance indicator(s): (i) Development and dissemination of voluntary standards in line with international best practices

UN Guiding Principle(s): 1, 2, 3, 11, 12, 15, 17, 23

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities; Goal 12 – Responsible Consumption and Production; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 36 designating the Provincial Governments and the Ministry of Human Rights as Leading Entities, and designating the Ministry of Law and Justice; Ministry of Industries and Production; Ministry of Commerce; Provincial Human Rights Departments; Provincial Law Departments; Provincial Commerce Departments; Provincial Industries and Commerce as Additional Entities (page 58).

 

CHAPTER 4: State Expectations of Business Enterprises (pages 38-39)

‘[…]2. Ensure the elimination of child labour, forced or bonded labour, and all forms of modern slavery from their business operations and supply chains. This may be expedited through the utilisation of effective and thorough human rights due diligence […]

6. Establish adequate human rights due diligence mechanisms to identify, prevent, and remedy human rights impacts. Human rights due diligence should consider both internal risks that stem directly from business operations as well as external risks, which relate to all other entities that the business work with across their operations or are linked with through their value chains. Human rights due diligence should be carried out before commercial operations and business activities, proportionate to the size and scope of the enterprise and the scale and complexity of its potential human rights impacts, and on a continuous basis to ensure that integrated findings from impact assessments shape future business decisions. Businesses should also ensure that the risks identified through due diligence and corrective actions taken are adequately reported and communicated to stakeholders, preferably in the form of an annual human rights due diligence report.’

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INTRODUCTION It is also noteworthy that Peru has taken significant steps to implement due diligence standards. In this regard, in 2018 it adhered to the OECD Council Recommendation on Due Diligence Guidance for a RBC, which adds to previous accessions to the Council Recommendations on Due Diligence Guidance for the mining sector in 2011 and the textile and footwear sector in 2017. In particular, the Due Diligence Guidance for a Responsible Business Conduct, published in 2018, in addition to having been agreed by governments, trade unions, companies, and civil society, seeks to promote a consensus on due diligence and also to help companies implement the due diligence recommendations contained in the Guiding Principles. – page 8 CHAPTER I: PROCESS OF ELABORATING THE FIRST NATIONAL ACTION PLAN ON BUSINESS AND HUMAN RIGHTS Under the OECD Guidelines, the Peruvian NCP is tasked with promoting the Guidelines and related Due Diligence Guidance and handling cases related to potential non-compliance with the Guidelines by a multinational enterprise, through a non-judicial process of mediation and conciliation between the company and the affected parties referred to as “specific instances” (OECD, 2020b, p. 22). – page 12 CHAPTER II: THE BUSINESS AND HUMAN RIGHTS SITUATION IN PERU Confiep has developed recommendations on the implementation of risk-based due diligence that targets these differentiated processes according to the size and activities of the company. These recommendations refer to the Due Diligence Guidance for a RBC (OECD, 2018) and follow the OECD framework for due diligence, although they are still challenged to include measures regarding remediation mechanisms (cf. OECD, 2020b, p. 23). – page 32 Private sector initiatives have also aimed at shifting towards risk-based approaches to RBC. In this context, mention should be made of the United Nations Global Compact in Peru, whose technical secretariat is provided by Confiep.16 Likewise, bilateral Chambers of Commerce -such as the Spanish Chamber of Commerce and the Nordic Chamber of Commerce- have provided specific support to promote the adoption of RBC practices by Peruvian companies through promotional events on due diligence (OECD, 2020b, p. 23). – page 33 CHAPTER III: DIAGNOSIS AND BASELINE: ACTION AREAS 3.1. General conclusions of the diagnosis and baseline The State has established frameworks that protect human rights and that directly and indirectly encourage the adoption of business and human rights standards and RBC. However, the effective application of these provisions still presents important challenges that transcend the regulatory sphere, such as that advances in the regulation are implemented in an increasingly uniform manner and all business sectors so that due diligence is progressively and sustainably a practice exercised by the majority of companies. A survey applied by the OECD in the present process to identify the progress of the business sector in the implementation of due diligence mechanisms shows that several companies have developed a human rights policy, but that there is still a long way to go in the implementation in practice of due diligence processes in the universe of companies surveyed. – page 39 In general, both the State and the business sector have shown a firm commitment to incorporate into their activities the postulates of the Guiding Principles and other instruments promoted by the RBC through due diligence. However, these advances, mainly in the regulatory sphere, have yet to be clearly reflected in practice, which is associated with cross-cutting problems of various kinds. – page 40 3.2. Conclusions of the specific issues Training needs (…) there is still a need for training on corporate due diligence, both in business activities and supply chains. Likewise, there is an acceptable level of knowledge on the Guiding Principles, but this needs to be reinforced for the remediation pillar. Due diligence mechanisms The findings of the diagnostics show across the board that an important aspect that needs to be incorporated in companies is the adoption of due diligence measures. The OECD (2021) survey22 reports that 43% of respondents require all first-tier suppliers and business partners to meet RBC expectations as part of a contract or agreement. 42% claim to always adopt an enhanced due diligence process when risks are identified in the supply chain and 25% conduct risk assessments beyond Tier 1 in the supply chain or on their products, raw materials, or services. In this sense, the survey identifies significant progress in the installation of a culture of business and human rights, RBC, and due diligence actions within companies, but at the same time, just over 50% do not apply due diligence processes to risks in the supply chain. This shows the need for a strategic articulation between the State, civil society, and the business sector so that an increasing number of companies incorporate these measures into their activities, as well as strengthen their practical application. In this regard, 57% mentioned the need to receive training on due diligence tools, so that training and advisory services are needed in this area to enable their practical implementation at the operational level.  – page 42 Women There are important practices from the business sector such as the implementation of the Working Committee for the Promotion of Women’s Empowerment in the Business Sector, as well as other initiatives in empowerment for leadership and business, promotion of incursion in traditionally male tasks, rankings, and seals that recognize companies that implement gender equality practices. One of the main demands from civil society is the establishment of a care system, which represents one of the main barriers to women’s equal access to work and other spaces. It is also important to mention that it is necessary to implement due diligence measures. – page 45 Indigenous peoples and prior consultation (…) With respect to other matters related to indigenous or native peoples, business associations have made progress with respect to corporate due diligence on human rights, with a clear intercultural approach, such as mechanisms for complaints and social claims in accordance with the Guiding Principles, which provide for reporting on the rules of due diligence and respect for human rights to external stakeholders and disseminate it among their contractors. However, public policy does not provide sufficient information on compliance. – page 49 Mining Mining is one of the most important economic activities in the country and, in recent years, due diligence mechanisms have been widely adopted for the formal mining sector. Progress has been made in the negotiation of land transactions due to the dialogue mechanisms and, therefore, it is essential to strengthening them considering the land-use planning policy. In addition, the prevention and management of the environmental impacts of mining activity require improvements, such as better quality information on socio-environmental baselines and strengthening the administrative and legal capacity of the competent environmental oversight entities. Progress has also been made in social conflict prevention mechanisms, although the creation and implementation of a national prevention system is still pending. The distrust of certain sectors towards mining activity merits a public policy that considers actions to monitor the progress of the business sector in the implementation of due diligence mechanisms, as well as transparency, training and multi-stakeholder dialogue, and greater dissemination of progress. On the other hand, Peruvian legislation has made progress in dealing with environmental mining liabilities; however, problems persist in rehabilitating environmental liabilities generated by informal and illegal activity. Complaints of heavy metal contamination deserve timely attention, a good example being the work of the Temporary Multisectoral Commission on the matter. – page 50 Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050 Strategic guideline No. 2: Design of public protection policies to prevent human rights violations in the business environment. Objective No. 1: Promote regulatory actions to prevent human rights violations in the corporate sphere 30. Action: Evaluate, taking into account the progress achieved through the NAP in strengthening public policy on GP-RBC, a regulatory proposal on due diligence in the business sector. Background: In order to progressively strengthen the public policy on Business and Human Rights, based on the incorporation of the RP and other international standards in national public policies, it is convenient to evaluate the relevance of a specific regulation of legal rank that regulates corporate due diligence, the same that has been adopted in other European and Latin American countries. This evaluation should take into account the progress made in the incorporation of standards through the NAP. Indicator: Assessment report on a regulatory proposal on due diligence in the corporate sector (Action Indicator). – page 77 Objective No. 2: Technical assistance to companies for the observance of human rights in their business activities 67. Action: Create and implement, within the General Directorate of Human Rights, a program to provide technical assistance to the business sector, both private and public, in the implementation of due diligence mechanisms for GP- RBC. Background: In order to promote the implementation of due diligence mechanisms for the GP- RBC and other international standards, MINJUSDH will create and implement a technical assistance program for the business sector, both private and public sector, large, medium, small and micro enterprises, according to international standards, the current national and international regulatory framework and good practices in Peru and other countries that can be replicated in the Peruvian context, taking into account, if necessary, the context of the health emergency due to Covid-19. Indicator: A program created and implemented, and annual progress report (Action Indicator). – page 105 68. Action: Produce, in coordination with the business sector, organized civil society, the competent state sector, indigenous peoples, and trade unions, specific guides for the business sector for the implementation of due diligence mechanisms. Background: With the purpose of implementing the principles of the GP-RBC, and adapted to specific business sectors, the MINJUSDH will produce specific guides for special protection groups and issues prioritized in the diagnosis and baseline and others to be prioritized, in order to implement due diligence mechanisms. Indicator: Follow-up reports on the implementation of the guides (Action Indicator). – page 107 69. Action: Produce, in coordination with the business sector, organized civil society and the competent state sector, a guide aimed at the micro and small business sector to promote their formalization and, progressively, a culture of due diligence. Background: The guide will specifically address the principles of GP-RBC in order to promote the formalization of micro and small enterprises and progressively implement a culture of due diligence, taking into account their peculiarities. The guide will be developed with the business sector and civil society, and its implementation and follow-up will be promoted. Indicator: Due diligence guide for micro and small companies prepared, presented, and implemented. Follow-up reports on the implementation of the guide (Action Indicator). – page 107 73. Action: Incorporate due diligence mechanisms to guarantee a human rights approach in the activities of the business sector, specifically in consumer relations and advertising. Background: The activities carried out by the business sector, specifically, consumer relations and advertising must take into account the human rights approach, with special emphasis on groups in need of special protection. Indicator: Guidelines for suppliers, incorporating recommendations related to due diligence in respecting equality and non- discrimination in consumption and/or advertising (Action Indicator). – page 109 Strategic guideline No. 4: Promotion and design of due diligence procedures to ensure the respect of human rights by companies Objective 1: Promote that companies have a human rights due diligence process. 80. Action: Formulate and implement a guideline for the implementation of due diligence management mechanisms for the RBC, aimed at public companies. Background: In order to guarantee the implementation of the GP-RBC approach in SOEs, and specifically, of operational due diligence mechanisms, it is necessary that FONAFE, in accordance with its steering role, and with the support of MINJUSDH and other competent bodies, formulate and disseminate guidelines for the incorporation of the aforementioned approach and due diligence mechanisms in SOEs. Indicator: Policy formulation by portfolios (Action Indicator). – page 114 81. Action: Formulate and implement a follow- up, monitoring, and evaluation mechanism for the implementation of due diligence mechanisms in public companies. Background: In order to strengthen the implementation of due diligence mechanisms in SOEs, FONAFE Corporation should also implement a follow-up, monitoring, and evaluation mechanism for the implementation of due diligence mechanisms in order to strengthen its oversight of SOEs. Indicator: Mechanism for follow-up, monitoring, and evaluation of the implementation of due diligence mechanisms in public companies (Action Indicator). – page 115 83. Action: Adopt due diligence measures to avoid actual and potential risks of violations to the safety and health of workers. Background: Adopt due diligence measures to ensure the prevention of situations of violation of the safety and health of workers in business activities that include risk map, index of hazards and risks), documents (internal regulations, records), or institutions (OSH committee) in the company. Indicator: Number of members of the Occupational Health and Safety Committee in the companies (Action Indicator). – page 116 84. Action: Provide information and raise awareness on collective labor rights due diligence throughout the supply chain. Background: There is a need to provide information and raise awareness on the adoption of due diligence measures for the respect of collective labor rights throughout the supply chain. This information should include small and medium-sized enterprises, as well as the context of the Covid-19 pandemic. Indicator: Information booklet on due diligence measures for respecting collective labor rights throughout the supply chain (Action Indicator). – page 117 86. Action: Provide technical advice on the implementation of due diligence mechanisms within the framework of GP-RBC, with a focus on occupational safety and health. Background: In order to promote the implementation of GP-RBC due diligence mechanisms, the MINJUSDH will provide technical assistance to the business sector according to international standards, the national and international regulatory framework in force, and good practices in Peru and other countries that can be replicated in the Peruvian context on issues of due diligence in occupational safety and health. Indicator: Number of orientations provided (Action Indicator). – page 118 Objective 2: Establish mechanisms for companies to report on their human rights due diligence processes. 87. Action: To progressively create and implement a mechanism for follow- up, monitoring, and voluntary reporting of the corporate due diligence mechanisms implemented by trade unions and companies in the formal sector, with the participation of the business sector, civil society organizations, indigenous peoples, trade unions, and the competent state sector. Background: In order to follow up and monitor the implementation of due diligence mechanisms by the business sector, MINJUSDH will progressively create and implement a state mechanism to receive voluntary reports from the business sector reflecting progress in this task. Indicator: Follow-up and monitoring mechanism for the business sector due diligence mechanisms (Action Indicator). – page 124 Objective 3: Create and strengthen mechanisms at the operational level by companies to redress human rights violations in the corporate sphere. 96. Action: Create and implement a follow-up and monitoring mechanism for corporate due diligence related to reparations, which are implemented by trade unions and companies in the formal sector, with the participation of the business sector, civil society organizations, indigenous peoples, Andean and Amazonian peoples, trade unions and the relevant state sector. Background: Businesses should diligently manage complaints and/or claims received from people with disabilities and senior citizens who consider themselves affected by the adverse impacts of business activities, ensuring due process of their complaints and implementing sanctions and redress mechanisms, as appropriate. This action, with emphasis on reparation mechanisms, is implemented within the framework of Action 87. Indicator: Follow-up and monitoring mechanism for the business sector due diligence mechanisms.  – page 125 97. Action: Produce, in coordination with the business sector, organized civil society, the competent state sector, indigenous or native peoples, Andean and Amazonian peoples, and trade unions, specific guidelines for the business sector for the implementation of due diligence mechanisms that provide comprehensive reparation. Background: In order to reflect the principles of PR-CER, and adapted to specific business sectors, MINJUSDH will produce specific guides for the groups of species and issues prioritized in the diagnosis and baseline and others to be prioritized, in order to implement due diligence mechanisms. Indicator: Preparation and public presentation of the guides. – page 125

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2. Ministry of Development Funds and Regional Policy

Responsible business – promoting due diligence standards

[page 10-11]

“The plans of the Working Group include, among others, the following activities:”

(…)

“- monitoring international trends concerning proposed regulatory solutions for increasing the responsibility of enterprises in the area of respecting human rights, supporting the process of 11 possible implementation of regulatory solutions in this field into the Polish legislation, creating due diligence procedures by enterprises,”

(…) “The issue of due diligence in the field of human rights will also be of particular interest to the Advisory Board for Sustainable Development and Corporate Social Responsibility in view of the legislative changes planned at the EU level as regards due diligence in the area of human rights and environmental issues, as well as in the field of non-financial reporting covering, among others, issues concerning the respect for human rights. Monitoring the directions of

legislative changes in non-financial data reporting planned at the EU level, as well as work in areas related to non-financial reporting, constitutes one of the tasks of the Working Group on the Development of Non-financial Reporting established on 31 March 2021.”

3. Ministry of Economic Development and Technology

Implementation of the UN Sustainable Development Goals (2030 Agenda)

[page 13)

“Integration of ESG (Environmental, Social and Governance) factors into long-term business strategy has become an area of increasing importance. It entails striving by entrepreneurs to balance their own expectations with those of their employees, customers, suppliers, and local communities. What is valuable – nowadays in particular – is the ability to use the perspective of viewing the company in the framework of concern for the social environment, both internal and external, as well as the natural environment. As regards the principles of corporate responsibility, the responsibility of enterprises in the processes of digitalisation and implementation of solutions based on state-of-the-art technologies is becoming an increasingly important area. Equally vital is the implementation of effective due diligence procedures for respecting human rights in business.”

5. Ministry of Finance

Implementation of the Good Practice Catalogue on due diligence for European Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas

[page 24]

“To [the end of complying with the EU Regulation 2017/821 on due diligence for European Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas), good practices are being introduced. They comprise in particular:”

(…)

“• Undertaking cooperation with the Entrepreneurship Support Department of the Polish Agency for Enterprise Development as well as the CSR and Cooperation with NGOs Unit in the Minister’s Office in the Ministry of Development Funds and Regional Policy in order to reach a wide range of entrepreneurs who are subject to the obligations under aforesaid Regulation. Due to this cooperation, an even greater number of entrepreneurs receive information/training materials (e-learning), in the area of ‘conflict’ minerals.”

(…)

“The practices identified above allow businesses to learn what benefits they gain by introducing due diligence into their supply chains, help companies introduce due diligence into their metals and minerals supply chains, as well as understand, assess and mitigate risks pertaining to responsible sourcing.”

Appendix 2 (information of the Ministry of Foreign Affairs)

GOOD PRACTICE CATALOGUE FOR FOREIGN MISSIONS IN THE FIELD OF BUSINESS AND HUMAN RIGHTS

Recommendations

[page 46]

“In their activities supporting Polish entrepreneurs, public procurement and development aid projects implementation, Polish foreign missions are guided by the following principles requiring them to:

– comply with the United Nations ‘UN Guiding Principles on Business and Human Rights’ and the principle of ‘due diligence’3 and to continuously raise awareness of the need to apply them in practice among both employees and partners of the mission”

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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)

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South Korea’s NAP makes no reference to human rights due diligence.

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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.”

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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.”

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1. Background

Legal Framework in Switzerland and the EU:
European Corporate Sustainability Due Diligence Directive (CSDDD)
In May 2024, the EU Council and the European Parliament adopted the CSDDD directive, which entered into force on 25 July 2024. In December 2023, Switzerland conducted a study on the impact of the new EU directive on Swiss companies.

The 2024-27 National Action Plan is supplemental to the 2020-23 NAP. The 2020-2023 NAP explicitly addresses this issue.

Additional Information about the 2020-23 NAP can be found here.

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IV. The corporate responsibility to respect human rights

B. Actions taken

• Respect for employee interests and the views of stakeholders (page 12)

‘Thanks in part to the joint advocacy of the Taiwan government and various other interested parties, more and more businesses — in order to fulfill their social responsibilities and honor their human rights commitments — have taken it upon themselves to establish human rights due diligence procedures, identify and assess related human rights issues, and set up an internal complaint mechanism that functions smoothly and ensures confidentiality.’

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3. The core content of the National Action Plan on Business and Human Rights

3.1 Action plan on labour

3.1.3 Action Plan (2019–2022)

Pillar 1: State duties in protecting (Protect)

No.	Issues	Activities	Responsible agencies	Time-frame (2019–2022)	Indicators (wide frame)	Compliance with National Strategy/ SDGs/UNGPs
15.	Operations set for business sector	Regulate, supervise and require the large business sector and companies listed in the stock market that use migrant labour as their primary production resource, prepare a Human Rights Due Diligence report as a measure in deterring labour exploitation. The said report must be disclosed to the public in order to create awareness and be easy to review. This is important for transparency and traceability in accordance with good corporate governance.	–   Ministry of Industry – The Office of the Securities and Exchange Commission	2019–2022	Letter circulated to the companies listed in the Stock Exchange of Thailand for disseminating the report on Human Rights Due Diligence	–   National Strategy for National Competitiveness Enhancement –   SDG 8 and 12 –   UNGPs Articles 1, 3, 4, 5, 7, 17, 18 –   and 19

 

3.2 Action plan for community, land, natural resources and the environment

3.2.1 Overview of the situation

The Department of Industrial Works has specified the location of factories to be away from public places or communities and defined the specification of the type and size of the factory that requires having environmental personnel at the factory to determine the amount of pollution (water pollution, air pollution, soil pollution and sound/noise pollution) that can be released into the environment. They will also assign a specialist to be responsible for the safe storage of hazardous materials under the responsibility of the Department of Industrial Works in accordance with the Hazardous Materials Act B.E. 2535 (1992) including regulation criteria to eliminate waste or unused waste and the supervision of chemicals and hazardous waste as well. The steps in determining the authorization to establish or expand the factory that needs to prepare the Environmental Impact Assessment Report (EIA) must go through the process of the public hearing as required by the Ministry of Industry for safety. There are safety measures from the risk assessment of the factories that must prepare a risk analysis report for the potential dangers in operating a factory. Criteria are set for hazard identification for risk assessment and the preparation of risk management plans and safety measures for the working environment including boilers, industrial gas, chemicals, radioactive materials, electrical systems in the factories, fires and cold storage.

 

3.4 Action Plan on Cross Border Investment and Multinational Enterprises

3.4.3 Action Plan (2019–2022)

Pillar 1: State duties in protecting (Protect)

No.	Issues	Activities	Responsible agencies	Time-frame (2019–2022)	Indicators (wide frame)	Compliance with National Strategy/ SDGs/UNGPs
3.	Promotion of Investment	Require studies and assessments of the risk and impact on human rights (human rights due diligence) before undertaking large-scale projects or projects related to public services, including in the case of joint investment between the government and private sectors to prepare conducting projects relating to infrastructure and public services that are a duty of the state, including in the case that the government has assigned the private sector to do the project instead	–   Office of the Economic and Social Development Council –   Ministry of Natural Resources and Environment (Bureau of Policy and Environmental Plan) –   Ministry of Transport –   Ministry of Finance (Office of the State Enterprise Policy Office) –   Ministry of Energy –   Ministry of Industry (Office of Economic Cooperation and Neighbouring Countries (Public Organization))	2019–2022	A study to assess the risk and human rights impact (human rights due diligence) before the implementation of large-scale projects	–   National Strategy for National Competitiveness Enhancement –   National Strategy for Human Capital Development and Strengthening –   National Strategy for Public Sector Rebalancing and Development –   SDG 8 and 16 –   UNGPs Articles 1, 3, 4, 5, 7, 8, 9, 10, 17, 18 and 19

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CHAPTER FOUR: STRATEGIES AND INTERVENTIONS

STRATEGIES

(…)

OBJECTIVE 4: To promote social inclusion and rights of the vulnerable and marginalized individuals and groups in business operations.

(…)

4.4.2 Engagement of business operators on human rights

Require human rights due diligence by businesses through comprehensive human rights impact assessments involving meaningful consultation with potentially affected groups, including consideration of gendered impacts of operations and covering value and supply chains.

1. Promote responsible sourcing practices and certification.
2. Mobilize and build capacity of selected business operators as human rights in business change agents.
3. Ensure the establishment and strengthening of gender and equity-responsive internal grievance redress mechanisms in business operations.
4. Ensure business actors adopt and implement human rights policies.
5. Encourage business operators to register as members of the UN Global Compact.

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The UK 2016 Updated NAP‘s Introduction states [page 3]:

“The G7 Leaders’ Declaration (7-8 June 2015) contained the following commitments:

• To enhance supply chain transparency and accountability, we encourage enterprises active or headquartered in our countries to implement due diligence procedures regarding their supply chains

The UK 2016 Updated NAP‘s Introduction further states [page 3]:

“Companies understand the business case for respecting human rights and the benefits this brings. They understand that positive action, supported by due diligence, transparency and reporting can:

• help to protect and enhance a company’s reputation and brand value;
• safeguard and expand their customer base;
• help them attract and retain good staff;
• build and maintain sustainable and effective relationships with employees and external stakeholders;
• reduce risks to operational continuity resulting from conflict inside the company itself or with the local community or other parties;
• reduce the risk of litigation for human rights abuses;
• attract institutional investors, including pension funds, who are increasingly taking ethical , including human rights, factors into account in their investment decisions;
• help companies become partners/investors of choice for other businesses or governments concerned about human rights risks;
• support company ethics and values.”

The UK 2016 Updated NAP states in Actions taken that [page 8]:

“We will continue to promote implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas.”

The UK 2016 Updated NAP states in the case study on Support for Land Tenure and Other Property Rights that [page 13]:

“Jointly with US, Germany, France, the AU Land Policy Initiative and FAO, the UK has developed a land investment due diligence framework based on the VGGT [Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Land Guidelines, VGGT)] and other international standards, to guide private sector investments under the New Alliance for Food Security and Nutrition.”

The UK 2016 Updated NAP in Government expectations of business that [page 14]:

“The UNGPs guide the approach UK companies should take to respect human rights wherever they operate. The key principles of this approach are to:

• adopt appropriate due diligence policies to identify, prevent and mitigate human rights risks, and commit to monitoring and evaluating implementation;”

The UK 2016 Updated NAP makes a reference to human rights due diligence in a NCP case study concerning World Wildlife Fund & SOCO International Plc [page 23]:

“As part of the statement, SOCO (…) also stated that “when we undertake human rights due diligence, the processes we adopt will be in full compliance with international norms and standards and industry best practice, including appropriate levels of community consultation and engagement on the basis of publicly available documents.”

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Context

“[…] the USG developed novel approaches to promoting RBC. The United States […] passed groundbreaking legislation such as the Uyghur Forced Labour Prevention Act (UFLPA), […].” (p.4)

Section I: Responsible Business Conduct and Due Diligence

The U.S. Government Approach to Responsible Business Conduct and Due Diligence

“[…] Shifting to the present, the UFLPA, signed into law by President Joe Biden in December 2021, prohibits U.S. businesses from importing goods into the United States produced either wholly or in part in Xinjiang or produced by entities identified on the UFLPA Entity List unless the Commissioner of U.S. Customs and Border Protection (CBP) determines that clear and convincing evidence indicates that the goods were not produced with forced labor. Recognizing the overwhelming prevalence of forced labor practices in Xinjiang, the UFLPA represents another important step forward in advancing the U.S. regulatory approach to combating forced labor. Through these laws, the USG incentivizes businesses to conduct due diligence.” (p.7)

Section I of the US NAP covers the US government approach to Responsible Business Conduct and Due Diligence

…

“[…] the USG takes seriously its duty to protect against adverse impacts of business activity. We do this by regulating business activity, strengthening due diligence practices, and providing and facilitating access to remedies for adverse outcomes.” (p.6)

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The Vietnam NAP makes no reference to Human rights due diligence.

NB: the Vietnam NAP has a focus on responsible business practices (RBP)

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