State Owned Enterprises/ Public Private Partnerships
In accordance with UN Guiding Principles on Business and Human Rights, Principle 4, states have to ensure that business enterprises that they own, control, or are closely related to them respect human rights.
The OECD Guidelines on Corporate Governance of State Owned Enterprises (SOEs) define SOEs as “any corporate entity recognised by national law as an enterprise, and in which the State exercises ownership, which includes joint stock companies, limited liability companies and partnerships limited by shares”. SOEs operate in sectors such as energy, utilities, infrastructure, transport, telecommunications and banking. The proportion of SOEs among Fortune Global 500 companies has grown from 9.8% in 2005 to 22.8% in 2014, with US$389.3 billion of profit and US$28.4 trillion in assets. Although SOEs’ activities have traditionally been domestically-focused for the provision of public services, over the past decade, they have also rapidly internationalised. Asian SOEs, for example, are playing an increasingly large cross-border role, both via exports and financing for development activities.
The World Bank defines a Public Private Partnership (PPP) as “a long-term contract between a private party and a government entity, for providing a public asset or service, in which the private party bears significant risk and management responsibility, and remuneration is linked to performance”. In 2015, the Addis Ababa Action Agenda, adopted at the Third Conference of Financing for Development, recognised that both public and private investment have key roles to play in infrastructure financing, including tools and mechanisms such as PPPs, which should share risks and reward fairly, include clear accountability mechanisms and meet social and environmental standards.
The World Bank notes that PPP can play an important role in addressing gender equality “by advancing the development of infrastructure that reduces poverty while promoting gender equality and women’s empowerment in the long term.” In order to do so, the World Bank recommends “[i]ncluding a gender perspective in PPP frameworks as well as the planning, design, development, implementation, monitoring and evaluation of infrastructure projects.”
SOEs have been using the PPP model to invest in development projects. In China in particular, SOEs have emerged as the main partners of local government, rather than private investors. Governments can also offer indirect support through guarantees to reduce specific project risks such as payment, revenue, and exchange rate guarantees.
According to a 2016 World Bank report, Brazil, China, India, Mexico and Turkey were the top five states in terms of local investment commitment in infrastructure PPPs during the period 1991-2015. Brazil and India, for example, have each recorded over 850 PPP projects since 1990. Many of the PPPs were implemented in the electricity sector including the Mundra Ultra Mega Power Plant in India and the Belo Monte Hydro Power Plant in Brazil. China has recorded 1301 PPP projects since 1990 in areas such as railways and electricity for projects such as the Hangzhou – Taizhou Inter-city Passenger line and the Shandong Zhonghua Power Plant.
Allegations of human rights abuses by SOEs in their home countries and in their operations abroad have been documented and included labour-related abuses, environmental damages, land rights violations and intimidation and defamation of human rights defenders. These abuses may entail a violation of the State’s own international law obligations. As the UN Working Group stated on its 2016 Report:
“UN human rights treaty bodies suggest that States may breach the duty to respect or to protect under international human rights law owing to human rights abuses by State-owned enterprises…Given the nature of relationships between SOEs and States, it is more likely that abuses by a SOE could lead to attribution of State responsibility than those by private businesses”.
The OECD Guidelines for Multinational Enterprises (2011) notes that State-owned multinational enterprises are subject to the same recommendations as privately owned enterprises, but public scrutiny is often magnified when a State is the final owner”. Likewise, the OECD Guidelines on Corporate Governance of State-Owned Enterprises (2015)recommend that the state ownership policy fully recognise SOEs responsibilities towards stakeholders and request that SOEs report on their relations with stakeholders, as well as to make clear any expectations the state has in respect of responsible business conduct by SOEs. Additionally, they recommend, and rely on the Board of Directors to the executive management, extensive measures to report on foreseeable risks, including in the areas human rights, labour, the environment, and risks related to corruption and taxation. Lastly, they note that state’s expectations on responsible business conduct should be clearly defined and communicated via the ownership policy. The OECD has also adopted in 2015 a Policy Framework for Investment, which recommends that governments lead by example and model responsible business conduct principles and standards in their own practices, i.e. as employers, business partners, through procurement and contracting practices, and in commercial activities. This includes the activities of SOEs.
“Member States should apply additional measures to require business enterprises to respect human rights, including, where appropriate, by carrying out human rights due diligence, that may be integrated into existing due diligence procedures, when member States:…own or control business enterprises”.
Several states have adopted legislation setting human rights expectations of SOEs, including Sweden, Denmark, Chile, Norway, Finland and Ghana.
The European Commission approved the Guidelines for Successful PPP in 2003 as a tool for PPP practitioners in the public sector faced with the opportunity of structuring a PPP scheme to define current or future policy. Development Banks are also assisting countries in designing PPP and creating a balanced regulatory framework to ensure a more efficient and sustainable provision of public services and infrastructure.
Although the 2030 Agenda for Sustainable Development does not explicitly refer to state-owned entities, state-owned enterprises are also key actors for 2030 Agenda progress. In many countries, they are some of the largest employers. Since their role is integrated in the Global Compact, the UNGPs, the OECD Guidelines, they have many links to the SDGs of the Agenda, namely towards creating jobs and a healthy work environment (SDG 8), promoting human rights (SDG 16), building sustainable infrastructure (SDG 9) and ensuring environmental sustainability (SDG 13). Some states address the role of state-owned companies in the light of the 2030 Agenda. For instance, in Sweden the State Ownership Policy seeks to ensure that state-owned entities integrate sustainable business models and practices into their corporate governance and “serve as role models in the area of sustainable business”.
For more information on public-private partnerships, and associated human rights concerns, see the Danish Institute for Human Rights’ Means of Implementation.
Addis Ababa Action Agenda of the Third Conference on Finance for Development, 2015: https://sustainabledevelopment.un.org/content/documents/2051AAAA_Outcome.pdf
Strand 1: Training in the Field of Business and Human Rights
Action Point 1.5 [page 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:
Train public and private business enterprises to include inclusive for disabled people in inductions and training programmes.
Strand 4: Transparency and Participation
Action Point 4.2 [page 40]
The Public-Private Cooperation Division of the Ministry of Social Development will include questions about the Guiding Principles in the 2017 Study about Social Performance of Business Enterprises, as well as the result of these variables in the final performance report, which will include an analysis of the results and their relationship with the SDGs. Medium and large-size public and private business enterprises will participate in the study.
Strand 9: State Business Enterprises
Action Point 9 [pages 49-50]
One of the focus areas of the Guiding Principles are public business enterprises and their special duty of care and diligence regarding the respect for human rights -because public business enterprises have the duty to lead by example.
Action Point 9.1
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 201640
Action Point 9.2
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. 9.3 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).
i. Fundamental Pillar 1: The State’s obligation to protect human rights
(…)
Strand 3 [Eje nº 3]: Dissemination of the National Action Plan on Business and Human Rights and of instruments and strategies related to the promotion of these rights
(…)
The Presidential Advisory Office for Competitiveness and Public-Private Management will support the dissemination of the NAP with the business sector and at territorial level through the Regional Competitiveness and Innovation Commissions.
Strand 4 [Eje nº 4]: Promoting inclusion and non-discrimination in business activity
(…)
The Presidential Advisory Office for Human Rights, together with the Presidential Advisory Office for Competitiveness and Public-Private Management, the Presidential Advisory Office for Women and the ICBF [Instituto Colombiano de Bienestar Familiar] will carry out the articulation mechanisms for the implementation of gender parity initiatives that involve women and girls.
Strand 5 [Eje nº 5]: Articulating spaces for social dialogue and effective participation
(…)
The Ministry of Trade, Industry and Tourism [MINCIT] will link public-private policy networks related to competitiveness, productivity and income and employment generation to human rights and business processes and guidelines.
ii. Fundamental Pillar 2: The duty of business to respect human rights
(…)
Strand 3 [Eje nº 3]: Train public and private companies on the need to mitigate the consequences of possible human rights impacts due to their operations, products or services provided, with an emphasis on those located in the region
(…)
The ICBF [Instituto Colombiano de Bienestar Familiar] will provide technical assistance, advice, training and accompaniment to public-private agents in the integral respect of children’s rights, as well as in the implementation of the principles and actions set out in the Rights of the Child, as well as in the adoption and implementation of the Business and Childhood Strategy [Estrategia de Empresa y Niñez] within the framework of business activities in Colombia.
iii. Fundamental Pillar 3: Access to remedy mechanisms
(…)
Strand 2 [Eje nº 2]: Access to non-judicial remedy mechanisms
(…)
The Presidential Advisory Office for Human Rights and International Affairs, together with the Presidential Advisory Office for Public-Private Management, will design a guidance mechanism to ensure that human rights grievance mechanisms are effective and aligned with the criteria set out in the Guiding Principles.
State enterprises and companies in which the state has a shareholding
Implements Principle 4 [page 26]
The state owns important business assets. Although state enterprises and companies in which the state has a shareholding are autonomous legal entities, in reality their operations can be influenced significantly by the state via ministries exercising owner or founder rights. The public is sensitive to this relationship and associates those enterprises’ operations with the state. This link is perceived even more strongly if those enterprises operate abroad. The activities of such enterprises can hold significant sway over the home state’s reputation.
If the state is to guarantee human rights, in the first place it must ensure that there is a high standard of protection at the enterprises it has established and at companies in which it has a shareholding. Both private and state entities have a legal obligation to respect human rights. State enterprises and companies in which the state has a shareholding, however, should comply with fundamental human rights standards even when they find themselves in a situation where the law does not expressly require them to. These sorts of situations might arise in particular if they operate in countries where the law provides for a lower standard of protection. These enterprises should ensure a high level of prevention in order to avoid becoming involved in violations of human rights indirectly (e.g. in supply chains).
Current state of play:
State enterprises and companies in which the state has a shareholding are not favored under the law compared to private companies. In proceedings before state authorities, they are of equal status and enjoy no privileges or immunities.
In fact, state enterprises and companies in which the state has a shareholding are subject to certain intensified obligations compared to private companies, e.g. in relation to transparency and disclosures.
Guidelines on Corporate Governance of State-Owned Enterprises are taken into account in the management of state enterprises and companies in which the state has a shareholding.
Tasks:
Recommend that the state’s representatives holding office in the bodies of state enterprises and companies in which the state has a shareholding keep track of best practice relating to respect for human rights in the relevant field of economic activity, and that they ensure that measures are taken to achieve the highest possible standard of human rights protection.
Coordinators: All ministries concerned
Deadline: Running
Recommend that state enterprises and companies in which the state has a shareholding insert clauses in new contracts that allow for the contractual relationship to be terminated if the counterparty or supply chain is found to seriously violate human rights or universally recognised ethical and moral standards.
Coordinators: All ministries concerned
Deadline: Running
Recommend that state enterprises and companies in which the state has a shareholding, where relevant in view of their size and market position, exceed to the UN Global Compact.
Coordinators: All ministries concerned
Deadline: Running
In guidance for local government bodies, disseminate the document “My Business and Human Rights”.
2.2 Recommendations from the Council for CSR on the state duty to protect [page 11]
Among other initiatives, the Council for CSR recommended that the Danish Government:…
Requires state-owned companies and governments agencies which distribute significant government funds to incorporate due diligence in their business activities;…
2.3 Actions Taken
Companies owned or controlled by the state[page 13]
In 2008 the Danish Government introduced a statutory CSR reporting requirement which obligates all stateowned public limited companies irrespective of their sizes to report on CSR in the management’s review in their annual reports (GP 4). The same year state owned companies were required to join the UN Global Compact principles and the Principles for Responsible Investment (PRI). Businesses must accede to the Global Compact as a group, in which the parent company accedes. The parent company then reports on the group’s observance of the principles on behalf of the subsidiaries (GP 4). The Danish Government believes that public authorities, including companies owned or controlled by the state, should live up to the same requirements that private companies are expected to fulfill. Therefore, the non-judicial remedy mechanism can also examine complaints involving public authorities (GP 4).
Reporting requirement on human rights impact [page 14]
Another priority for the Danish Government has been to strengthen the existing legal reporting requirement for the largest Danish companies and all state-owned companies (GP 3d). Since 2009, large companies including all state-owned companies and institutional investors in Denmark have been required to report on their work on corporate social responsibility. This means that while Danish businesses are free to choose whether or not they wish to have a CSR policy there is a statutory requirement that they must take a position on CSR in their annual reports. If the company has a CSR policy, the company must account for this policy in their annual reports, including any CSR standards, guidelines or principles the company employs. Secondly, the company must report how these policies are translated into action, including any systems or procedures used. Thirdly, the company must evaluate what has been achieved through the CSR initiatives during the financial year, and any expectations it has regarding future initiatives. If the company does not have any social responsibility policies, this must be reported.
In June 2012, this reporting requirement was expanded so that the largest Danish companies from 2013 expressly must state in their reports what measures they are taking to respect human rights and to reduce their impact on the climate. This means that if a company has a policy on human rights or climate issues, it must report according to the existing structure; what is the policy, how has the policy been translated into action and what has been achieved through the initiatives. If the company does not have policies for human rights or climate issues, this must also be disclosed. The purpose is to further strengthen Danish companies’ activities in relation to human rights and climate change which will be beneficial to society overall, but also to the individual company. Three years after the reporting requirement was introduced, analyses show that companies generally appear to have been encouraged to report on CSR. In the course of the first three years of the legal requirement’s existence, nearly 50% of the companies reported on CSR for the first time. Secondly, there have been significant improvements in reporting practices in a number of areas. There is, nevertheless, still room for improvement as regards reporting consistency and reporting on the results of the CSR work. For information on Danish companies reporting on human rights see section 3.3.
Annex 1: Overview of the implementation of the state duty to protect
GP4 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)
In 2008 the state financing fund, Vækstfonden, has committed to adhere to the UN Principles for Responsible Investment (PRI)…
With the 2008 national action plan for CSR a number of state owned companies were committed to join the UN Global Compact, among other DONG Energy, DSB, and Post Denmark. The national action plan also introduced a CSR reporting requirement for all state owned companies (see GP 3d). Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles)..
The Ownership Steering Department in the Prime Minister’s Office has set a CSR reporting requirement for unlisted companies that are either majority-owned by the state or entirely state-owned. This also includes human rights. The obligation requires that companies submit reports in accordance with the best practices in the branch of activity concerned and, at minimum, adopting the standards corresponding to those of their central competitors. As an owner, the state expects that the administration and management of state-owned companies take human rights into consideration in a responsible and transparent manner, both in their own organisation and in their subcontracting chains. As a follow-up measure, the working group proposes that:
-the importance of human rights to the state when serving as a company owner will continue to be emphasised in preparing the next decision in principle on ownership policy.
– When the amended OECD Guidelines on Corporate Governance of State-Owned Enterprises enter into force around the end of 2015, the new definitions of policy will be included in the ownership guidance practices of the Finnish state. Principal responsible party: Prime Minister’s Office, schedule before the end of 2016.
… In addition, the CNCDH recommended that “representatives of civil society and users of those services that are likely to be the subject of public-private partnerships (PPPs) be given a more central role as part of an approach designed to protect and promote the most vulnerable of populations. Indeed, in order for PPPs to be useful for development purposes, it is essential that all stakeholders, including the State, community representatives and users, be kept informed and consulted at all stages of the PPP creation process.” It added that, “in accordance with Guiding Principles nos. 4 and 6, the French State should, by means of its development aid network (the AFD, PROPARCO, the Ministry of the Economy and Finance, the ADETEF, etc.), fulfil its obligation to protect by imposing a series of specifications that include exhaustive impact studies regarding human rights.” …
Activity: Conducting informational campaign for employees of companies belonging to state property regarding human rights protection, including strengthening women economically.
Responsible agency: Human Rights Secretariat of the Administration of the Government.
No partnership agency.
Objective 25.15.1: Define relevant issues of human rights protection for companies providing public services and ensure retraining of respective members of staff.
Objective indicator: Conducted respective research; number of retrained members of staff.
Activity: Conducting respective research and trainings.
Responsible agency: Human Rights Secretariat of the Administration of the Government.
Enterprises in public ownership or under state control within the meaning of this subsection comprise all enterprises subject to private or public law in which federal, state and/or local authorities hold a direct majority share. If a business enterprise is under state control, in other words if a majority stake is held directly by the public treasury, or if its actions may otherwise be attributed to the state, such an enterprise bears special responsibility under the UN Guiding Principles to respect human rights.
The current situation
The general standard of protection given to human rights by enterprises in which the public treasury holds a stake is already very high, since public-private entities in which the state holds a controlling stake and whose organisational form is governed by private law as well as public companies in sole state ownership which are organised in a form governed by private law are directly bound by the enshrined constitutional fundamental rights. The acquisition of shares in enterprises subject to private or public law is done autonomously at the various tiers of government in the federal system – national, regional and local – on the authorities’ own responsibility. Besides being bound by the constitutional fundamental rights in their economic activity, the three tiers of government are also bound by the provisions of ordinary legislation, such as the Federal Budget Code and municipal instruments.
In addition, there is a federal regulatory instrument known as the Public Corporate Governance Code of the Federation (PCGK Bund), comprising recommendations and suggestions for good corporate governance and addressed to enterprises in which the Federal Government holds a majority stake. The federal administration of shareholdings is organised on a decentralised basis and is the task of whichever federal ministry is responsible for the company’s area of activity. Section 1.4 of the Public Corporate Governance Code states that the federal ministry responsible for the shareholding should ensure that enterprises acknowledge and comply with the Code and embody it in their corporate rules. The Code is part of the Principles of Good Corporate Governance and Management of Federal Holdings, which were adopted by the Federal Government and published by the Federal Ministry of Finance in its role as the lead body in this field. They form the foundations for responsible management of federal stakes in enterprises and provide for standardised performance of this task by the various federal ministries. Several federal states and municipalities have separate management codes for their own holdings. The annual report on federal holdings lists about 700 enterprises in which the Federal Government has a direct or indirect stake. The Federal Government has direct holdings in 60 companies with business activities (as of 31 December 2014), 41 of these being direct majority holdings. Of the companies in which a direct majority stake is held, 13 have more than 500 employees. Among the matters covered by the report on federal holdings are the implementation of the Public Corporate Governance Code of the Federation, gender equality and the general sustainability of the listed enterprises.
Measures
The Federal Government, in cooperation with the Council for Sustainable Development, will expand the training courses of the federal holding management bodies to include sustainability matters and so focus its attention on responsibility for human rights in the enterprises in which it holds a direct majority share. The scope of the training curriculum of the holding management bodies shall be inserted as part of the next revision into the Public Corporate Governance Code of the Federation. At the annual meeting of the bodies managing federal and state holdings, the states shall be urged to follow this federal practice.
The Federal Government is keen to increase the percentage of enterprises in which it holds a majority share that apply the German Sustainability Code, including its obligation to report on human rights. From the 2018 financial year, the report on federal holdings will list, in its chapter on sustainability, all internationally active enterprises with more than 500 employees in which the Federal Government has a majority shareholding that apply the German Sustainability Code or a comparable framework with compulsory reporting on human rights and those that do not.
Initial priorities for the Business and Human Rights implementation group
The State Duty to Protect Human Rights [page 18]
iii. Encourage and support awareness of effective human rights due diligence by state owned or controlled companies.
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.
Enterprises domiciled and/or operating in Italy must respect human rights throughout all their activities: the respect of fundamental human rights is a cornerstone of the economic activities as well, carried out either by public or private companies…
The State-business Nexus
[page 21]
States have particular duties with respect to companies that they own or control and should take additional steps in relation to their duty to protect: states have the means to ensure that policies and regulations respecting human rights are monitored and implemented, and as a matter of coherence, Governments should lead by example by adopting the same behaviours expected from private companies. Italy is committed to ensure that business enterprises that: i) are owned, controlled by the State; ii) receive support, benefit from services from Government agencies; iii) contract and conduct commercial transactions with the State, operate in full compliance with human rights enshrined in domestic legislation, international regulations and standards, and soft law instruments…
Planned Measures
[page 22]
… the Italian Government will conduct the following activities to be jointly developed and monitored by CIDU and A.N.AC:
Within the framework of the monitoring mechanism set in the Plan (see par. V) give special attention to due diligence of business enterprises owned or controlled by the State. …
3.1. Pillar 1: The State Duty to Protect [Page 16]
Under international law, States have the primary obligation to protect against human rights abuses within their jurisdiction and territory. Pillar 1 of the UNGPs clarifies that this obligation includes protecting against human rights abuses by third parties such as businesses. In this regard, states should take appropriate steps to prevent, investigate, punish and redress such abuses by having in place effective policy, legal, regulatory and adjudicative measures. States are therefore expected to explicitly set out expectations that all businesses in their jurisdictions, including state-owned businesses and those businesses with which they engage in commercial transactions, respect human rights through policies, laws and guidance.
3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 18]
The current voluntary initiatives established and adopted by business associations on different human rights issues do not have strict compliance and reporting mechanisms. They therefore fail to offer businesses that have ascribed to them the required guidance and supervision to ensure that their operations respect human rights. 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 in any human rights due diligence.
b) Human Rights Policy commitments [Page 19]
iii. Enforce compliance with human rights standards by State owned enterprises and other businesses that receive export credit and state support, including by providing access to remedy for human rights violations;
CHAPTER FOUR: IMPLEMENTATION AND MONITORING
ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 25]
Strategic Objective
Policy Actions
Key Actors
Strategic objective 2: Enhance understanding of the obligation of business to respect human rights
Enforce compliance with human rights standards by State owned enterprises and other businesses that receive export credit and state support, including by providing access to a remedy for human rights violations..
Objective 2: promoting corporate responsibility and respect in the field of business and human rights
A. Implemented and on-going measures for the development of CSR in Lithuania [page 6]
1. National Strategy for Sustainable Development…The implementation of the principle of participation of enterprises and social partners provides for closer social dialogue, stronger CSR, public and private sector partnership, as well as sustainable consumption and production.
3. The application of CRS principles to the state-owned enterprises. One of the objectives of the CSR Programme approved by the Government in 20IO is to develop methodological tools for the application of CSR principles, to ensure their dissemination and the exchange of best practices. It was foreseen that state-owned enterprises (hereinafter referred to as the SOE) operating under the principles of good governance may act as examples of socially responsible business. To this end, since 20 I0, actions were taken to restructure SOEs with a particular focus on corporate transparency and social responsibility. SOEs provide important public services as regards energy, water supply, public transport, electronic communications, health, education, social services and others. The application of the tools of socially responsible business may not only ensure that the highest return for the public is generated but can also make a positive impact on social stability and the promotion of business and human rights principles.
Lithuania already has SOEs engaged in socially responsible business initiatives. Model CSR application plan and its implementing guidelines for state-owned enterprises were prepared in 2012 aimed to facilitate introduction of CSR in state-owned enterprises, and to promote the use of CSR principles in their operations. This document lists examples of good practise of CSR in Lithuanian state-owned enterprises, naming among others AB Lesto, AB Lietuvos Gelezinkeliai, and Vilnius International Airport.
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)
1.9. 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
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.
Content from the BHR specific chapter in the Human Rights NAP:
Strategic priority 3.6. Promote public policies aimed at the prevention and mitigation of adverse impact caused by private, public or mixed business activities
…
3.6.9. Encourage public, private and mixed businesses to adopt the necessary measures in order to promote employment formalisation and prevent precarious work.
3. Results of the consultations and government response
3.2 Policy Coherence [page 16]
The government recognises that it must be consistent on the subject of human rights and business and in pursuing and implementing policy at both national and international level. The policy letter ‘CSR Pays Off’ clarifies the CSR framework. The OECD Guidelines provide an overarching framework for what the Dutch government expects of companies in terms of ICSR. The Guidelines incorporate other relevant provisions such as the Corporate social responsibility in economic missions, House of Representatives 26 485, no. 166, July 2013. ILO labour standards7 and the UN Guiding Principles on business responsibility to respect. State-controlled companies are expected to comply with the Guidelines and to report on their CSR policies. To monitor their progress, these companies are always included in the Transparency Benchmark. Companies in which the government invests in a different way, for example through export licences, are also expected to comply with the Guidelines.
2.3 State ownership and practice for supporting the business sector
Principle 4 concerns the business activities of state-owned enterprises and enterprises that receive economic support or other services from state agencies:
State ownership [page 21]
In 2014, the Government presented a white paper on the importance of ownership for diversity and value creation (Meld. St. 27 (2013–2014)), which discusses the state’s expectations of enterprises in which it has a direct ownership interest, including expectations based on the UN Guiding Principles. The expectation that state-owned enterprises will exercise CSR is based on the belief that this is desirable in itself and that it helps to maintain the state’s shareholder value. Enterprises are exposed to different levels of risk and face different challenges. This means that they can adapt the “comply or explain” principle and the materiality principle to their own operations. The “comply or explain” principle applies to cases where a company’s practice deviates from the state’s expectations. There may be good reasons for this, and the board of directors must provide a public explanation of the reasons for the lack of compliance. The materiality principle implies that companies work with and report on factors that are of major importance to the way its operations affect people, communities, climate and the environment. The Government has noted that there is a need to focus more strongly on the responsibility of the boards also of enterprises in which the state has an ownership interest and their approach to CSR, including human rights. We believe that greater involvement by company boards will improve risk management and thereby help to maintain shareholder value. The follow-up of CSR and human rights performance is conducted through the owner dialogue in quarterly and/or annual meetings on CSR. In special cases it may be necessary to follow the company’s activities more closely. The work of companies and boards on CSR, including human rights, is taken into account in the election of board members.
In addition to judicial mechanisms, quasi-judicial bodies exist to regulate competition in business, unfair labour practices and industrial disputes. These bodies include the Ombudsperson Offices in all four Provinces relating to sexual harassment at the workplace, taxation, insurance and any complaints faced by the public from Federal Government Departments including State Owned Entities. Additionally, the National Industrial Relations Commission (NIRC) has been established with the jurisdiction to resolve industrial disputes and unfair labour practices.’
This information is also covered under Annex II: Actions Already Undertaken by Pakistan, B) Measures Relevant to NAP Priority Areas, viii. Access to Remedy (page 86).
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 (pages 18-19)
‘11. Develop a model Code of Conduct, making explicit the relationship between business and human rights, for businesses that are State owned, controlled or which work with the State.
Performance indicator(s): (i) Development of a Code of Conduct; (ii) Number of businesses to which the Code of Conduct is disseminated; (iii) Number of businesses that formally announce the adoption of Code of Conduct
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 Annex 1: Implementation Plan, Proposed Action 11 designating the Ministry of Human Rights; Ministry of Industries and Production; Ministry of Commerce as Leading Entities, and designating the Ministry of Law & Justice; Ministry of Planning and Development; Provincial Human Rights Departments; Securities and Exchange Commission of Pakistan; Provincial Labour Departments as Additional Entities (page 47).
ANNEX II: Actions Already Undertaken by Pakistan
B | Measures Relevant to NAP Priority Areas
iii. Human Rights Due Diligence (page 80)
‘Many companies especially State Owned, and Controlled Entities have taken initiatives of their own as part of their Corporate Social Responsibility programs including education, health, women empowerment, community building, and the environment.’
Pillar II: The Corporate Responsibility to Respect Human Rights
2. Corporate social responsibility in companies with State Treasury shareholding [page 32]
All businesses share the same responsibility for respecting human rights regardless of the title of ownership. State-owned companies should serve as a model for socially responsible business practices and should conduct business based on ethical, prosocial, and environmentally friendly principles across the board. These entities should promote a modern model of operations based on social responsibility and sustainable development in order to ensure their long-term economic viability. With that in mind, the Ministry of Treasury published the document Good Practices in the Scope of Corporate Social Responsibility in Companies with State Treasury Shareholding, which: – groups the expectations of the Minister of Treasury regarding actions in the field of corporate social responsibility, in accordance with the UN Guiding Principles; – specifies the guidelines for corporate social responsibility in companies with State Treasury shareholding; – presents recommendations for the managing bodies (management and supervisory boards) of companies with State Treasury shareholding and detailed recommendations for companies with State Treasury shareholding. As Poland ratified the Protocol of 2014 to Forced Labour Convention No 29 of 1930, it is necessary to initiate measures that will require employers in the public and private sectors to provide information under their reporting procedures on implemented procedures, processes, and standards for counteracting forced labour.
10. Planned and ongoing activities [page 37]
1) Promoting good practices in human rights and business, including with respect to state-owned enterprises and enterprises commissioned by the state..
Within one year after the approval of this Plan, a Working Group will be created within the framework of the Strategic Plan for the Internationalization of the Spanish Economy, which will develop a specific Action Plan to examine the coherence of policies to support business internationalization, and its alignment with the Guiding Principles. The Working Group, which will present its conclusions to the Government, will study how cooperation for development, official credit agencies, export credit and official insurance or investment guarantee agencies of all administrations are able to condition, modulate or revise its support for investment based on the exercise of the responsibility to respect human rights by the beneficiary companies, both inside and outside of Spanish territory.
Measure 3
Regarding public sector companies, the Government will promote the principles of Socially Responsible Investment, and must value this investment, in particular, from the perspective of respect for human rights, both within and outside Spanish territory.
Guiding Principle 21
Measures 2
The Government will develop awareness and training actions based on the United Nations Guiding Principles on Business and Human Rights, the National Plan for Business and Human Rights, and the expectations of the State in matters of business and human rights. These actions can be organised, among others, with the National Contact Point of the OECD Guidelines for multinational companies, business associations, networks of the United Nations Global Compact, and civil society organisations. This action will be directed as a priority to those companies in which the State has participation, or to which it provides financial, diplomatic, or other support…The awareness actions will be directed to the personnel of the companies at different decision-making levels, including the boards of directors and governing bodies.
Measure 5
Likewise, an awareness-raising strategy will be carried out on how to avoid discriminatory practices in public and private companies (by distinction, exclusion or preference) because of gender, age, ethnic origin, race, religion, disability, political affiliation or union, sexual orientation, nationality, marital status, socioeconomic origin or any other personal distinction.
The State’s role in protecting human rights [page 9]
In its role as owner, the State acts to ensure that state-owned companies set a good example in the area of CSR and that their conduct in general instils public confidence, for example by striving to comply with international guidelines such as the UN Guiding Principles.
Annex: Measures taken
The State as owner [pages 23-24]
According to the government state ownership policy, state-owned companies are expected to set a good example, which means that they must seek to comply with international guidelines such as the UN Global Compact, the UN Guiding Principles on Business and Human Rights, and the OECD Guidelines for Multinational Enterprises. They must also be transparent and report in accordance with the Global Reporting Initiative (GRI). State-owned companies must also identify areas of CSR that are relevant to their business strategy and the board of directors must set strategic sustainability targets. The ownership policy applies in companies where the State is the majority owner; in other companies, where the State is part-owner, the State seeks to ensure that the ownership policy is followed, in dialogue with other owners.
The Government has held seminars for the chairs of boards and managing directors of all state-owned companies on the Government’s expectations regarding the companies’ application of the UN Guiding Principles on Business and Human Rights. A study was carried out in 2013 on the international guidelines from the UN and the OECD, aimed at facilitating companies’ application of the state ownership policy.
A CSR network has been established for the discussion of relevant CSR-related issues and to allow companies to exchange knowledge and experience. The international guidelines with which the companies are expected to comply were discussed at one of the network meetings. The Government Offices corporate management organisation has also held a workshop for the companies on the UN Guiding Principles on Business and Human Rights.
A business analysis tool that sheds light on relevant areas of CSR, including human rights, has been developed for state-owned companies by the Government Offices corporate management organisation. The analysis increases the owner’s awareness of the companies’ risks and opportunities and how these can be managed. The result of the analysis is integrated in corporate governance and taken into account in the Government’s regular dialogue with the company, in monitoring the company’s development, and in the recruitment and nomination of board members. • Like other state-owned companies, Swedfund International AB (Swedfund) and the Swedish Export Credit Corporation (SEK) are required to comply with the government state ownership policy for CSR, as described above. Moreover, Swedfund and SEK have social mandates specially adopted by the Riksdag. Swedfund is required to ensure that its investments comply with international standards and CSR principles, within clear and sound corporate structures that do not contribute to tax evasion, money laundering or terrorist financing. SEK is required to take account of conditions such as the environment, corruption, human rights and working conditions in its credit assessments.
Annex: Measures planned
The Government aims to raise its ambitions in foreign trade, including in CSR and implementation of the UN Guiding Principles on Business and Human Rights. To achieve these aims, a number of concrete measures will be implemented by 2017.
The State as owner [page 29]
CSR will continue to be an integral part of the Government’s active corporate governance of state-owned companies. The human rights work undertaken by state-owned companies will be examined in relevant cases in the sustainability analysis and followed up in stakeholder dialogues between representatives of the owner and the companies.
Knowledge about the UN Guiding Principles on Business and Human Rights, due diligence and redress mechanisms will be promoted in state-owned companies through a series of workshops. Each occasion will provide an opportunity for experience exchange between the companies and highlight tools and good practices for implementation by the companies in their own operations.
The Government will work to increase knowledge about the UN Guiding Principles on Business and Human Rights in stateowned 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.
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
2.1.3 The State-business nexus
Guiding Principles 4 to 5
Given the federal government’s direct influence on the activities of federal government-associated businesses, it has a particular obligation to ensure that these companies respect human rights, for example by conducting human rights due diligence. It also expects federal government-associated businesses to have in place human rights best practices.
Measure 9: Human rights due diligence by federal government-associated businesses
The Federal Council defines its strategic goals for federal government-associated businesses every four years and expects these companies to pursue a sustainable corporate strategy to the best of their business ability. As regards the protection of human rights, a number of these businesses already exercise due diligence and document these efforts in their reporting.
To advance the implementation of UN Guiding Principles by federal government-associated businesses, interdepartmental coordination must be stepped up. Failure by these entities to meet international standards on human rights due diligence could pose a reputational risk to the federal government. The Federal Council therefore intends to assist federal government-associated businesses in playing a lead role by raising awareness of human rights due diligence and promoting the exchange of best practices, particularly with regard to risk management, monitoring and public reporting. This optional measure is geared primarily towards federal government-associated businesses which work with suppliers and business partners abroad.
The federal government may also run optional training sessions on UN Guiding Principles and human rights due diligence for the members of boards of directors and senior management of federal government-associated businesses.
Objective
Indicator
Responsibility
Assist federal government-associated businesses in taking a lead role and encourage them to put in place human rights due diligence procedures.
Examples of human rights due diligence exercised by federal government-associated businesses.
At least one training session held for federal government-associated businesses.
FDFA [Federal Department of Foreign Affairs],
DETEC [Federal Department of the Environment, Transport, Energy and Communications],
EAER [Federal Department of Economic Affairs, Education and Research].
2.2 Pillar 2: the corporate responsibility to respect human rights
2.2.2 Operational principles: human rights due diligence
Measure 29: Public-private partnerships to promote respect for human rights in the value chain
To promote the implementation of labour rights and human rights by business enterprises, the federal government, together with the ILO, supports the Better Work programme for the textile industry and the Sustaining Competitive and Responsible Enterprises (SCORE) programme to support SMEs in creating decent working conditions. These projects are jointly run by the ILO, governments, the private sector and unions, and are focused on compliance with fundamental labour standards, including measures to combat child and forced labour. The tools developed by these programmes are shared with the private sector.
The federal government supports a project to promote human rights due diligence with a view to preventing the exploitation of Syrian refugees and migrant workers in neighbouring countries (Turkey, Lebanon, Jordan). The aim is to strengthen the contribution that business enterprises make to providing decent work opportunities and combatting exploitation in the textile, agricultural and construction sectors in these countries.
As part of its foreign policy efforts, Switzerland establishes public-private partnerships to promote measures aimed at combatting human trafficking.
Objective
Indicator
Responsibility
Establish partnerships with the private sector to create decent work opportunities in value chains.
Swiss and private sector contributions to the Better Work and SCORE programmes and to projects aimed at protecting migrant workers from exploitation.
FDFA [Federal Department of Foreign Affairs],
EAER [Federal Department of Economic Affairs, Education and Research].
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 2: Responsibilities of the business sector in respecting of human rights
2.1 Compliance with labour laws, the Thai Labour Standards and the principles of human rights
State enterprises and the business sector must provide an announcement or a statement on the human rights policy in their organizations. This includes the UNGPs.
State enterprises and the business sector must implement the Thai Labour Standards, respecting and strictly complying with labour laws.
State enterprises and the business sector must promote knowledge about labour laws, the Labour Standards and human rights principles, both in Thailand and internationally, to labour in the workplace.
State enterprises and the business sector must cooperate with government agencies and international organizations in case there is an inspection of operation under labour laws, the Labour Standards and human rights principles.
2.2 Labour rights and welfare
State enterprises and the business sector should provide welfare for workers and their families, such as childcare centres in a workplace.
State enterprises and the business sector should not force workers to work overtime. Overtime work must be voluntary or by necessity, such as without doing so would cause damage. Overtime work should be proposed to workers systematically depending on the necessity.
State enterprises and the business sector should establish measures to certify or insure health care for workers in the workplace.
State enterprises and the business sector that use migrant workers should be responsible for the costs of recruiting labour and other expenses in accordance with the “employer pay principle”.
2.3 Elimination of discrimination in the workplace
State enterprises and the business sector should specify measures and policies to show the intention of supporting equal opportunities without discrimination in employment, recruitment, compensation, termination, promotion and removal of any conditions that cause a negative impact on employees and job seekers as appropriate.
State enterprises and the business sector should establish measures and policies to prevent sexual harassment in the workplace.
State enterprises and the business sector should increase the employment of women, ethnic groups, persons with disability, senior citizens, ex-convicts, etc. by considering as appropriate, including requiring the establishments for proper facilities set-up.
State enterprises and the business sector must not consider not employing or terminating employment due to HIV infection.
2.4 Complaint and remedy mechanisms
State enterprises and the business sector should provide internal channels for complaint/petition mechanisms and keeping it as confidential information. Many channels should be opened and must have a convenient and fast access for tracking, such as on the website and via application on mobile phones, etc.
State enterprises and the business sector should hold discussions to mediate disputes to achieve resolutions between workers before bringing the case to justice by giving the opportunity for workers to participate in negotiations.
State enterprises and the business sector should agree on measures to remedy damage to workers in the event that workers’ human rights are violated. The remedies should cover physical and mental damage.
State enterprises and the business sector should specify measures and mechanisms to support and solve issues around firing workers, including compensation for termination of employment in accordance with the relevant laws.
3.2 Action plan for community, land, natural resources and the environment
3.2.3 Action Plan (2019–2022)
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.1 Compliance with laws, standards and principles of human rights relating to the environment, natural resources, community and land.
State enterprises and the business sector must review the organization’s rules and regulations and improve them to comply with relevant laws, standards and principles of human rights related to the environment, natural resources, community and land, especially the UNGPs, to prevent human rights violations.
State enterprises and the business sector must promote and monitor their subsidiaries, including their supply chain in respect to relevant laws, standards and human rights principles related to the environment, natural resources, community and land.
State enterprises and the business sector must cooperate with the government and international organizations in the event of monitoring and review compliance with laws, standards and principles of human rights related to the environment, natural resources, community and land.
The state enterprises should have appropriate measures and remedies provided in case of land expropriation from people, including coordinating with relevant government agencies to inform the public in advance.
2.2 Open to the participation of public and communities
State enterprises and the business sector should provide information about businesses and projects to the public, especially the community and the people in the area before, during and after the project implementation to ensure transparency.
State enterprises and the business sector should listen to all public comments and respect the process of stakeholder participation in accordance with the UNGPs.
State enterprises and the business sector should work closely with the community to support a production process that is valuable and suitable for the community.
State enterprises and the business sector should communicate with the public and nearby communities to facilitate their better understanding, as well as cooperate with relevant agencies in the event of preparing for how to deal with the impact of the project.
2.3 EIA/EHIA
State enterprises and the business sector should conduct an EIA/EHIA assessment by an independent, credible and accredited expert.
State enterprises and the business sector should conduct an EIA/EHIA assessment in accordance with the guidelines as specified in the relevant laws, regulations and measures.
State enterprises and the business sector should build mutual understanding with the people and communities affected by operations in the surrounding areas and provide opportunities for those persons to participate in the EIA/EHIA process.
State enterprises and the business sector should cooperate with the government and various departments in the event of investigation of the correctness and transparency in the making of the EIA/EHIA.
2.4 Complaint and remedy mechanisms
State enterprises and the business sector should assess risks and conduct human rights due diligence, including preparing annual reports for public distribution.
State enterprises and the business sector should provide a variety of complaint channels that can be forwarded to the other departments, including measures to protect complainants.
State enterprises and the business sector should resolve disputes with the community by negotiating and discussing with the communities affected before bringing the case to justice, including coordinating with related agencies in the area to help mediate the dispute resolution.
State enterprises and the business sector should identify measures to remedy people and communities affected by human rights abuses resulting from business operations.
3.3 Action plan for human rights defenders
3.3.3 Action Plan (2019–2023)
Pillar 2: Responsibilities of the business sector in respecting human rights (Respect)
The expectations will be the starting point and state enterprises as well as businesses of all sizes are encouraged to use them as a guideline, which is an important factor to reduce the adverse human rights impact of business operations.
2.1 Compliance with laws, measures and principles of human rights relating to the protection of human rights defenders
State enterprises and the business sector must comply with the law, measures and principles of human rights relating to the protection of human rights defenders.
State enterprises and the business sector should provide channels which their personnel can access for disseminating knowledge and understanding about laws, measures and principles of human rights related to protection of human rights defenders.
State enterprises and the business sector must cooperate with government agencies and international organizations to follow the monitoring and prosecution of human rights defenders.
State enterprises and the business sector should understand the role of human rights defenders in their job to protect them and ensure that they will not be terminated or prosecuted just because of their work for protecting the human rights of others.
2.2 Enhancing knowledge and understanding about the work of human rights defenders
State enterprises and the business sector should study and understanding the role of human right defenders’ work.
State enterprises and the business sector must cooperate in participation with government agencies’ activities organized to educate about the work of human rights defenders.
State enterprises and the business sector should provide a forum to discuss with human rights defenders in order to create an understanding of working together.
State enterprises and the business sector should disseminate and publicize the duty of human rights defenders to their staff and networks.
2.3 Establishing measures to protect human rights defenders
State enterprises and the business sector must provide an overview of the situation working with human rights defenders when requested by government agencies.
State enterprises and the business sector should participate with government agencies in implementing measures to protect human rights defenders and understanding the roles of human rights defenders.
State enterprises and the business sector and civil society should collaborate constructively in the prevention, mitigation and remedy of adverse human rights impacts.
State enterprises and the business sector should clearly assign personnel or agencies to correctly enhance knowledge and understanding to their staff regarding the work of human rights defenders to prevent misunderstandings and harassment between each other.
2.4 Complaint and remedy mechanism
State enterprises and the business sector should have a mechanism to consult with human rights defenders in order to deal with the violation of human rights.
State enterprises and the business sector should provide clear channels and designated coordinators for complaints.
State enterprises and the business sector should settle disputes with human rights defenders by fully negotiating and mediating disputes before bringing the case to justice which may involve coordination with relevant agencies in the area to help mediation to settle the disputes.
State enterprises and the business sector should avoid litigation to prosecute human rights defenders simply because they are performing their duty to claim and protect the rights of others.
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
4.
Preventing human rights violations abroad
Establish measures to prevent violations of human rights in investment projects of state-owned enterprises (and Thai businesses abroad) including complaint mechanisms
– Office of the National Economic and Social Development Council
– Ministry of Finance (Office of the State Enterprise Policy Office)
2019–2022
Preventive measures and mechanisms for complaints of infringement discussed and defined in relation to human rights in the projects invested by state-owned enterprises (and Thai businesses abroad)
– National Strategy for Public Sector Rebalancing and Development
– SDG 8, 16 and 17
– UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
6.
State enterprises
Require state enterprises to have measures to prevent and mitigate human rights risks and impacts including those carried out overseas by subsidiaries, contractors and joint ventures
– Ministry of Finance (Office of the State Enterprise Policy Office)
2019–2022
State enterprises have projects/ activities to implement the UNGPs and HRDD assessments and share good and concrete practices with other business sectors
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 16
– UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
Pillar 2: Responsibilities of the business sector in respecting of human rights.
2.1 Compliance with laws, standards and principles of human rights relating to cross border investment and multinational enterprises
State enterprises and the business sector must review the rules and regulations of their organizations and amend them to comply with laws, standards and principles of human rights related to the environment, natural resources, communities and land, especially the UNGPs, in order to prevent human rights violations.
State enterprises and the business sector must comply with laws, regulations and standards regarding human rights in the management of business and investment in the country, in the case of investing in Thailand and in foreign countries in the case of cross border investment.
State enterprises and the business sector should encourage and monitor their subsidiaries including their supply chain to respect the laws, regulations and standards regarding human rights, business governance and investment in Thailand in the case of investing in Thailand and in foreign countries in the case of cross border investment.
State enterprises and the business sector should cooperate with the government and international organizations in the event of tracking and reviewing compliance with laws, regulations and standards regarding human rights, business governance and investment in Thailand in the case of investing in Thailand and in foreign countries in the case of cross border investment.
2.2 Promoting awareness of international principles and standards regarding human rights and business conduct
State enterprises and the business sector should provide training to improve knowledge about international principles and standards regarding human rights and responsible business conduct for their affiliates and staff.
To be transparent, state enterprises and the business sector, both for domestic investment and cross border investment, must disclose information about their projects to the public, especially the community and people in the affected areas both before, during and after the project implementation.
State enterprises and the business sector should study the UNGPs and the OECD Guidelines on Multinational Enterprises, including communicating with their affiliates and agencies.
State enterprises and the business sector must keep an eye on their companies’ supply chain operations including outsourcing services and subcontracting that may create adverse effects on human rights as specified in the UNGPs.
2.3 Complaint and remedy mechanism
State enterprises and the business sector operating in Thailand and Thai entrepreneurs investing in foreign countries should conduct a risk assessment and surveillance of human rights due diligence, including disclosure of information to the public.
State enterprises and the business sector should have a channel or mechanism to receive complaints about human rights violations resulting from business operations and coordinate to forward the relevant information to the related department.
State enterprises and the business sector operating in Thailand and Thai entrepreneurs investing in foreign countries should resolve disputes with the community by negotiation and discussion with the affected communities to give full compensation for damages before bringing the case into the judicial system. They should coordinate with relevant local agencies in the area to help in mediating disputes.
State enterprises and the business sector operating in Thailand and Thai entrepreneurs investing in foreign countries should have a measure to give remedy to the people and communities where human rights have been abused or negatively impacted resulting from business operations.
In Africa, there is a growing rate of service provision by the private actors and this is attributed to the recognition that some bilateral donors and international institutions increasingly put pressure on African Countries to privatize or facilitate access to private actors in service delivery particularly health and education sectors, without consideration for State Parties’ obligations under the African Charter (ACHPR / Res. 420 (LXIV) 2019).
NRM Manifesto 2021-2026 is committed to delivering social services like education and health, noting that “an educated and healthy population is key in improving people’s standards of living.” NDP III states that the government will work with the private sector on Human Capital Development to ensure that the resource-led sustainable industrialization process is both sustainable and beneficial to its citizens. In Uganda, the private sector is gradually playing a prominent role in service delivery, in areas which were the traditional domain of the State, through purely private engagements as well as Public Private Partnerships (PPPs). The rapid increase of the private sector development has not been matched by adequate regulation on protection and fulfilment of human rights within the context of businesses.
Although the government has passed the PPP Act (2010), PPP Guidelines and has a National Strategy for Private Sector Development 2017/18-2021/22 in place; there is no legal requirement to enforce respect for and compliance with human rights standards.
The rising cost of social services provided by private actors has resulted in unaffordability of these services. From the stakeholder consultations, it emerged that the private social service providers were violating rights of the public through charging exorbitant fees for their services, demanding for cash pay prior to service delivery particularly in health sector, displaying discrimination in employment opportunities, under payment of their staff among others.
The Africa Commission on Human and Peoples Rights (Resolution 420) recognising these challenges; has implored State Parties to enact legislative and policy frameworks regulating private actors in social service delivery and ensure that their involvement is in conformity with regional and international human rights standards.
CHAPTER FIVE: INSTITUTIONAL FRAMEWORK
5.1 Ministry Of Gender, Labour and Social Development
(…)
vii. Undertake assessments and audits for compliance to human rights by business operations including state and non-state entities.
5.15 Civil Society Organizations
The civil society organizations are critical stakeholders in implementing NAP on business and human rights. They will be responsible for;-
Building effective partnerships and networks with government and other actors to implement the action plan.
The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs:
(iv) Review the degree to which the activities of UK State-owned, controlled or supported enterprises, and of State contracting and purchasing of goods and services, are executed with respect for human rights, and make recommendations to ensure compliance with the UNGPs.
The UK 2016 Updated NAP
The UK 2016 Updated NAP does not make an explicit reference to State-Owned Enterprises – PPP.
Outcome 1.2: Utilise US law, Multilateral agreements, and diplomacy to promote and enforce high standards
Ongoing commitments and initiatives
Free Trade Agreements [page 9]: The United States has sought to promote the role that governments can play in encouraging companies to engage in RBC in the context of 21st century free trade agreements (FTAs). For example, the Trans-Pacific Partnership (TPP) countries agreed to establish a TPP Development Committee that would promote public-private cooperative initiatives to help certain TPP partners reach their development goals, which include the promotion of broad-based economic growth; enhanced opportunities for women in domestic and global economies; and education, science and technology, research, and innovation. Implementing department or agency: USTR, State, Commerce, DOL
Outcome 1.4: Conducting Due Diligence in U.S. Developing Funding and Trade Finance
Social Safeguards for U.S. Development Assistance [page 12]:USAID will develop a social safeguards screening questionnaire that Missions may use as an assessment tool when designing new projects (including public-private partnerships) to ensure due diligence on social and human rights issues. Implementing department or agency: USAID
