The former Director-General of the World Trade Organization (WTO), Pascal Lamy, stated in 2010 that trade rules, including WTO rules, are based on the same values as human rights: ‘individual freedom and responsibility, non-discrimination, rule of law, and welfare through peaceful cooperation among individuals’. The influential WTO scholar Ernst-Ulrich Petersmann has also stated that the WTO regime promotes freedom (in removing restrictions on trade), non-discrimination (in the form of Most Favored Nation (MFN) and national treatment), the rule of law (in committing WTO Members to transparent obligations and an enforceable rules-based international trading system), and economic efficiency leading to enhanced welfare.
In 2015, the Addis Ababa Agenda on Financing for Development recognised international trade as “an engine for inclusive economic growth and poverty reduction, and contributes to the promotion of sustainable development.” Governments committed to promote a “universal, rules-based, open, transparent, predictable, inclusive, non-discriminatory and equitable multilateral trading system under the WTO, as well as meaningful trade liberalization”. Sustainable Development Goal 17 (target 17.15) of the 2030 Sustainable Development Agenda in turn mandates “respect each country’s policy space and leadership to establish and implement policies for poverty eradication and sustainable development”.
For more on trade and human rights, including detailed information on intellectual property, access to medicine, food security, and preferential trade agreements, see the Danish Institute for Human Rights’ Means of Implementation.+ Read more
For example, trade agreements that are linked to preferential treatment (PTAs – Preferential Treatment Agreements), like the Special Incentive Arrangement for Sustainable Development and Good Governance (GSP+) under the GSP Regulation, may go as far as to grant full removal of EU customs tariffs on over 66% of product tariff lines to support vulnerable developing countries through increased trade with Europe and provision of incentives to take tangible measures towards sustainable development. At the same time, the GSP+ makes the preferential treatment conditional on efforts aimed to ratify and implement 27 core international conventions on human and labour rights, environmental protection and good governance. [75% of the world’s governments now participate in PTAs with human rights provisions, including non-derogation clauses; language in the preamble; or language extending Article XX of the GATT/WTO. Some of these provisions are binding, while others remain rhetorical.
On the other hand, according to a joint report by Office of the High Commission for Human Rights and United Nations Development Programme, trade agreements that invariably impact human rights and the ability of States to regulate and protect the human rights of their people, are often negotiated without reference to their impact on the rights to health, education, food, work, and water. Further, as noted in the Gender Guidance to the UNGPs, ‘[a]s trade and investment policies are often gender-neutral, they tend to exacerbate existing discrimination against women.’
As noted by the Third World Network, trade policies may have adverse human rights impacts, such as the impact of farming subsidies in developed countries on the right to food in developing countries , not least because of the speculation in food commodities or the impact of loss in tariff revenue through liberalization in the services sector, as well as the adverse impact on the right to health of trade-related intellectual property rights [OHCHR].
One of the tools that states have to prevent adverse human rights impacts stemming from trade agreements, is to conduct ‘Human Rights Impact Assessments’, prior to entering into negotiations in order to anticipate the impacts a drafted trade agreement will have on society, the environment, and the economy of the negotiating parties and, on this basis, to improve regulatory trade options.
Responsible Business Conduct (RBC) agreements are another tool for ensuring that human rights are guaranteed across trade arrangements. KIT Royal Tropical Institute published an evaluation of Dutch RBC agreements in 2020. The objective of the evaluation was to find the extent of impact RBC agreements have had on advancing business and human rights due diligence in conformity with international frameworks such as OECD Guidelines and UNGPs.
While there has been an increase in the protection for the rights of workers and the environment in recent years in Free Trade Agreement (FTAs) and bilateral investment agreements (BITS), as well as mega agreements like the Trans-Atlantic Trade and Investment Partnership (TTIP), such agreements still represent a threat to governments’ space for policy regulation.
According to UN Guiding Principle 9, “States should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts.” The Commentary to the Guiding Principle 9 additionally clarifies, that “States should ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements, while providing the necessary investor protection”, because while economic agreements can create economic opportunities, they also can affect the domestic policy space of Governments, e.g. “the terms of international investment agreements may constrain States from fully implementing new human rights legislation, or put them at risk of binding international arbitration if they do so.”
The Gender Guidance to the UNGPs also advises, in their guidance on UN Guiding Principle 9, that ‘States should conduct periodic ex ante and ex post gender responsive impact assessments of their trade and investment agreements’ and that ‘States should explicitly include in such agreements a binding obligation of investors to respect women’s human rights under national and international law.’
In this context, investment chapters of FTAs are of special concern. Many include a broad definition of ‘investment’ and provide greater protection for foreign investors than national investors and public interests. When disputes arise between a foreign investor and the public interest, for example, in relation to raising the minimum wage or passing new legislation on land tenure regimes, the dispute settlement mechanism in these agreements allow foreign investors to sue governments in private international arbitration cases. The Investor-State-Dispute-Settlement (ISDS) clause in agreements enable companies to sue for any “expropriation” or imposition on their investment and expected profits. This system bypasses national legal systems, and can challenge decisions by the executive.
Since the mid-1990s, the European Union (EU) has developed an array of instruments to promote human rights in its external trade policy, including human rights clauses in bilateral trade agreements and a set of human rights criteria in the Generalised System of Preferences (GSP), while its 2010 Communication on Trade, Growth and World Affairs (COM(2010) 612 final, 12) emphasised the trade-human rights nexus by stating that the aim of the EU is to encourage EU’s partners to promote the respect of human rights, labour standards, the environment and good governance through trade. [Velluti, 2016]
Despite the EU’s efforts, the EU-US Transatlantic Trade and Investment Partnership (TTIP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA) have called into question the impact and credibility of the EU’s approach to human rights in its external trade policy given the selective and uneven application of the human rights instruments, and insufficient attention to Human Rights Impact Assessments of the potential trade agreements.
Under the 2030 Agenda for Sustainable Development, trade is covered by SDG targets 17.10 – 17.12. These outline a vision for a rules-based, non-discriminatory global trading system which is more favourable to developing countries than is currently the case. Trade has been an integral part of the sustainable development agenda since the Agenda 21 was adopted in Rio in 1992. Trade is also covered extensively by the Addis Ababa Action Agenda (AAAA), which states among other things that ‘with appropriate supporting policies, infrastructure and an educated work force, trade can also help to promote productive employment and decent work, women’s empowerment and food security, as well as a reduction in inequality, and contribute to achieving the sustainable development goals.’ It is thus of critical importance for a number of SDGs.
17) Partnerships For The Goals
What National Action Plans say on Trade
Action point 9
Strengthen collaboration between public services and the various organizations active in the field of human rights and of international entrepreneurship
Renforcer la collaboration entre les services publics et diverses organisations actives dans le domaine des droits de l’Homme et de l’entrepreneuriat international
This point brieflyy references the issue of trade in regards to the government of Bruxelles objective to “ask its economic and trade personnel abroad to disseminate the information gathered by the federal government on the human rights situation of the specific country in question, to the companies that use their services.”
Action point 10
Belgium is committed to integrating human rights and corporate social responsibility (CSR) criteria into the local private sector development support strategy of Belgian cooperation
La Belgique s’engage à intégrer des critères « droits de l’Homme » et de Responsabilité sociétale des entreprises (RSE) dans la stratégie d’appui au développement du secteur privé local de la coopération belge
This point in the Belgian NAP briefly mentions “the promotion of fair and sustainable trade and the support of social economy and the favoring of socially responsible entrepreneurship” as one of the areas that the cooperation for Belgian development will monitor.
Action point 11
Ensure better coordination between federal and regional authorities in order to integrate criteria relating to human rights and socially responsible entrepreneurship in public aid
Assurer une meilleure coordination entre les autorités fédérales et régionales afin d’intégrer des critères relatifs aux droits de l’Homme et à l’entrepreneuriat socialement responsable dans les aides publiques
This point aims at bringing together the various public services that work with Belgian companies on trade and foreign investment in order for them to exchange information at regular intervals. In this context, the government will examine a common method to integrate into the evaluation of applications the promotion of human rights and other aspects of social responsibility.
Action point 13
Strengthen and monitor the respect for human rights in public procurement
Renforcer et contrôler le respect des droits de l’Homme dans les marchés publics
The Flemish Government briefly mentions fair and sustainable trade in its aim to support buyers in the integration of social criteria in public procurement. It also includes diversity, accessibility, and the inclusion of people from vulnerable groups.
Action point 17
Advocate for strengthening the integration of sustainable development (including human rights) in free trade agreements
Plaider au niveau de la Belgique pour le renforcement de l’intégration du développement durable (y compris des droits de l’Homme) dans les accords de libre échange
This point presents the issue relating to free trade. “Trade,” it mentions, “must have a positive impact on work and environment.” The federal government expresses that within the European framework, Belgium wants to link free trade to a form of trade that is more sustainable. This will consist of monitoring the inclusion of human rights, as provided by the international treaties, in free-trade agreements. Also the action point describes that “any new trade or investment agreement must not have negative impact on sustainable development.” The Belgian authorities will actively engage in all European trade or investment treaties, in favor of the inclusion of sustainable development and the presence of social and environmental norms based on international standards.Moreover, the region of Bruxelles, mentions that HRIAs will be conducted before the ratification of any investment or trade agreements.
Action point 33
Import, export and transit of arms, ammunition, military and law enforcement equipment and dual-use goods
Importation, exportation et transit d’armes, de munitions, de matériel militaire et de maintien de l’ordre et de biens à double usage
This point specifically concerns the trade of arms. The Flemish government states that the human rights criterion is strengthened in the Flemish Arms Trade Decree, to avoid, as a general rule, goods being delivered either directly or through unreliable or private enterprises, to actors found to be guilty of violations of human rights. However, several shortcomings to the Decree have been identified, and the objective is to address the gap through different optimization efforts both within the public and private sector. For instance, the Flemish government plans “to incorporate a broad legal basis to the Decree subordinating all transits to authorization requirement,” and “support Flemish companies in the development or improvement of their internal control programs until compliance of enforcement procedures.”
Pillar 1: The State Duty to Protect Human Rights
Strand 4: Transparency and Participation
Action Point 4.3 (page 40)
The General Directorate of International Economic Relations of the Foreign Ministry will encourage transparency and inclusion of the civil society both in the negotiation process and in the implementation of trade agreements, pursuant to the confidentiality framework agreed in each case thus generating spaces for the exchange of information, opinions and technical analysis, and through initiatives such as the “Cuarto Adjunto.”*
*The Cuarto Adjunto is understood as an open space for information and discussion with civil society and the private sector. At these meetings, stakeholders in each of the trade negotiation disciplines exchanged information, views and technical analysis with stakeholders in each of the areas covered (e.g. environmental, labour, intellectual property, market access, etc).
Strand 6: Strengthening Coherence between Public Policies
Action Point 6.3. (pages 45-46)
Through the General Directorate of International Economic Relations, the Ministry of Foreign Affairs will:
- Reinforce the work of committees created pursuant to chapters contained in trade agreements about SMEs, cooperation, gender, environment, transparency and labour matters, so that they include human rights-related objectives in their duties, thus becoming a forum for carrying out relevant dialogues. In line with the above, DIRECON will encourage the development of specific coordination activities in the committees and promote the development of technical capacities in human rights.
- Continue to promote, in international negotiations, both at a bilateral and multilateral level, Intellectual Property Schemes seeking a balance between the protection inventors and creator rights and the interests of society in general. In this context, apart from promoting Intellectual Property, consideration will be given to the respect for the human right of having access to knowledge and culture, and the right to healthcare. …
Strand 7: Strengthening of Coherence in International Policy
Action Point 7.2. (pages 47-48)
The Ministry of Foreign Affairs will: …
- Through the General Directorate of International Economic Relations:
- Seek to strengthen, in the negotiation of trade agreements, the revision of current agreements and/or unilateral and joint statements with trade partners, certain criteria and provisions highlighting the importance of social sustainability and responsibility, with special focus on the respect for human, environmental, social and labour rights; for example, by mentioning the United National Guiding Principles on Business and Human Rights and or OECD Guidelines.
- Propose, in the preamble of trade agreements, language showing full commitment with the respect for fundamental human rights, thus continuing the focus adopted in the agreement with the European Union.
Action Point 7.3 (page 48)
The Unit for International Affairs of the Ministry of Labour will:
- Support the incorporation of the UN Guiding Principles in the trade agreements subscribed by our country, in coordination with the competent authorities, as relevant.
Pillar 2: The Corporate Responsibility to Respect Human Rights
Strand 2: Promotion of Corporate Due Diligence in the Field of Human Rights (page 54)
… Due diligence in human rights urges business enterprises to identify, prevent, mitigate and respond for the negative consequences of their activities on human rights, be them action or omissions directly with their operations, their products or services. Likewise, they must apply that care in their trade relations, including in deals with trade partners, bodies incorporated in their value chain and in any other instance related directly with their trade operations, products or services. …
Action Point 2.1 (pages 59-60)
The National Contact Point for OECD Guidelines (NCP) of the Ministry of Foreign Affairs will adopt a series of measures to strengthen its duties. For this, it will: …
- Keep the Trade Offices periodically updated, both at a national and international level, as well as the Chilean Embassies abroad and future Chilean diplomats, about OECD Guidelines, through official messages, teleconferences, visits to Embassies/Regional Offices and coordination of the Chilean Diplomatic Academy.
`The Colombia NAP does not explicitly address this issue’
Trade in military equipment [page 18-20]
“Implements Principles 5, 6 and 7
Trade in military equipment is one of the riskier sectors from the perspective of human rights. While the manufacture of military equipment and arms is a traditional segment of Czech industry, these are goods that are susceptible to abuse, so they must be subject to regulation. A legislative act [Act No 38/1994 on external trade in military equipment and amending Act No 455/1991 on licensed trading (the Trading Act), as amended, and Act No 140/1961, the Criminal Code, as amended] establishes procedures for the authorisation of trade, conditions for the granting and use of licences, and general inspections of trade in military equipment, including penalties.
In the Czech Republic, there are two stages to checks on external trade in military equipment. The first stage is authorisation to engage in external trade in military equipment. The authorisation specifies specific items of equipment in which the holder can trade, and lists the countries where trade is permitted. Authorisation is issued by the Ministry of Industry and Trade on the strength of opinions submitted by the Ministry of Foreign Affairs (encompassing foreign-policy interests, commitments under international treaties and membership of international organisations, including the protection of human rights), the Ministry of the Interior (encompassing public policy, security and protection of the population), and the Ministry of Defence (covering the provision of national defence).
The second stage is the licence for external trade in military equipment, which is required to carry out specific deals. The decision on whether to issue or refuse a licence rests with the Ministry of Industry and Trade, again in response to binding opinions from the Ministry of Foreign Affairs (other than applications for transfer licenses for EU Member States), the Ministry of the Interior and, where the military equipment is significant, the Ministry of Defence (these opinions cover the same areas as those addressed for authorisation to engage in foreign trade in military equipment).
Checks on the use of exported arms rely, in part, on information in the end-user certificate (EUC). If doubts have arisen or if there are reasons for heightened prudence, the state may reserve the right to conduct a subsequent spot check via its embassy, and/or to make the delivery of military equipment conditional on the presence of state representatives at the destination.
Although this process is consistent with standards within the European Union, it is occasionally castigated on grounds of transparency, the amount of information released by the state, and the timeliness of access to such information. Every year, the Ministry of Industry and Trade publishes an Annual Report on Checks on the Export of Military Equipment, Small Arms for Civilian Use and Dual-use Items and Technology. In view of the sensitivity of this whole issue, these reports are consulted with the National Security Council and are subsequently approved by the Government ahead of publication. The annual reports are relatively lengthy, respect the methodology for drawing up common annual reports of the European Union, and mainly contain summaries and statistics. So much data is processed, and it is so taxing, that these annual reports tend not to be approved by the Government until July of the following year. The EU’s summary annual reports [In accordance with Article 8(2) of Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment] are published with a time lag of more than a year, which has also been criticised.
The Czech Republic also reports regularly to the UN on international transfers of conventional arms, small arms and light weapons. In accordance with Article 13 of the Arms Trade Treaty, the Czech Republic also submits a report to the Treaty Secretariat for the preceding calendar year concerning authorised or actual imports and exports of conventional arms. Information on specific transactions may be reported to the extent permitted by the protection of classified information and trade secrecy. However, non-profit organisations such as Amnesty International continue to criticise the Czech Republic for exporting weapons to “high-risk countries”.
Current state of play:
- Trade in military equipment is regulated beyond the framework of national legislation and at EU level, in particular by Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment. That Common Position defines eight binding criteria for assessment of applications to export military equipment, including the need to consider the risk of potential violations of human rights.
- The Czech Republic participates in a number of international schemes to regulate the arms trade. In particular, it is party to the Arms Trade Treaty (ATT), which provides that if there is a clear risk that the conventional arms to be exported might be used in the commission of serious violations of international humanitarian law, export will be denied.
- The Ministry of Industry and Trade publishes annual reports on trade in military equipment. Some information is provided by the Ministry at half-yearly intervals outside of that process.
- The Czech Republic regularly reports to international organisations or within the scope of international control regimes on the basis of binding international treaties.
- Expand the half-yearly overviews issued by the Licensing Administration to include further information releasable in accordance with legislation and Government resolutions.
Coordinator: Ministry of Trade and Industry
Deadline: 30 June 2019
- Hold regular meetings between the Ministry of Foreign Affairs, the Ministry of Industry and Trade and the non-governmental sector on issues of transparency and human rights in trade in military equipment.
Coordinators: Ministry of Industry and Trade, Ministry of Foreign Affairs
- Offer all necessary cooperation and assistance to the Parliamentary Subcommittee on Acquisitions of the Ministry of Defence, Trade in Military Equipment and Innovations of the Armed Forces of the Czech Republic so that regular assessments can be carried out of the human rights risks posed by export licences and by military equipment exports that have been made.
Coordinators: Ministry of Industry and Trade, Ministry of Foreign Affairs
Appendix 1, GP 7
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 30]
“Besides following the government regulations with respect to export promotion, trade policy and political imposed trade sanctions and export controls, the EKF has initiated the development of a model that provides an over view of the business risk s that could potentially be related to human rights, labour rights, environment and climate in the countries where EKF is investing. EKF is screening the companies involved in the EKF’s transactions. There has not been any cases involving human rights issues.”
Appendix 1, GP 9
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 31]
“The EU adheres to principles and standards on responsible business conduct such as the OECD Guidelines for Multinational Enterprises, which is also reflected in negotiations for free trade agreements that includes the area of investment.”
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 31]
“The Government actively supports substantial Trade and Development chapters in the EU’s bilateral free trade agreements as well as human rights suspension clauses in the same agreements. The new free trade agreement between the EU and Peru /Colombia is an important case in point, being substantially more ambitious in this area than earlier agreements. The new free trade agreement between the EU and Peru/Colombia is an important case in point, being substantially more ambitious in this area than earlier agreements.”
1 The state obligation to protect human rights
1.2 Activities in international organizations [page 14]
“As a follow-up measure, the working group proposes that
- Finland shall bring forward questions related to human rights in international trade and development organisations and direct its support to programs related to business and human rights as part of Finland’s support to international trade and development organisations.
- Finland supports the cooperation and discussion with the WTO and other essential international organisations such as ILO or WIPO (World Intellectual Property Organisation), carried out within the framework of the WTO Coherence Mandate.”
1.3 Activities in the EU [page 16-19]
“The promotion of the realisation of human rights is a central part of the EU’s foreign relations. The common EU trade policy is carried out in the framework of the EU foreign relations principles and objectives. The common trade policy applies to third countries outside of the internal market. Member States cannot enact trade policy norms or conclude agreements between each other or with countries outside of the EU. The competencies transferred to the EU are exercised by its institutions. The Commission uses the competence outwards, representing the EU and negotiating on behalf of the Union.
The provisions on competencies and decision-making create the legal framework for the conduct of the EU’s trade policy, but material objectives are not provided for. The objectives are created in the interaction between the Commission and the member states. For Finland, it is essential to get Finland’s own national objectives integrated into the EU objectives.
As a follow-up measure, the working group suggests that in order to reinforce the human rights aspect in the EU trade policy:
- Finland will support the strengthening of human rights assessments in third countries during EU trade or investment agreement negotiations and when monitoring their implementation. Finland shall make use of the human rights assessments in forming its own opinions related to trade policy positions. Finland supports that human rights will be taken in to account in the EU investment agreements or in potential new bilateral agreements made by Finland.
- Finland endorses the inclusion of human rights clauses to all EU political framework agreements and their consideration as essentials elements in trade agreements. In trade agreements, Finland shall also endorse clauses enabling an exemption from agreed provisions in cases where the other contracting party violates human rights.
- Finland shall monitor and influence human rights questions related to trade through the EU Generalised System of Preferences (GSP) by actively participating in the work of the Council of the European Union GSP Working Party and GSP Committee. The objective of Finland is for the system to promote the effective and efficient implementation of human rights in countries benefiting from the GSP. The system covers a special incentive mechanism for sustainable development and good governance (GSP+), a special arrangement for the least developed countries as well as a general arrangement.
- Finland promotes human rights issues in the framework of bilateral and interregional trade agreements by making use of the work of the monitoring groups for sustainable development of those agreements in matters related to trade and labour rights.
- Finland is involved in international work in UN decision-making bodies related to communication technologies (such as WSIS and the World Summit on the Information Society) as well as in other central international organisations (such as the Internet Governance Forum, IGF). The objective of Finland is to reinforce the administrative system of an open and inclusive network so that freedom of speech is ensured in the development of the international information society.
- A report shall be made on how trade and human rights as well as trade and labour rights have been taken into consideration in the free trade agreements of the EU, the United States and some other countries (such as regulation, monitoring mechanisms, dispute settlement and implementation).
Principal responsible party: Ministry for Foreign Affairs, continuous activities, report by mid-2015.”
3 Expectations towards companies and support services
3.5 Support for Finnish and international organisations promoting the subject [page 28]
“As a follow-up measure, the working group proposes that
- the possibilities of funding new programmes or initiatives be examined. These programmes or initiatives should be related to business
- and human rights, particularly trade, business activities and rights at work, and they may have significantly positive effects on development.
Principal responsible party: Ministry for Foreign Affairs, schedule 2014 to 2015.”
I. The State’s Obligation to Protect Human Rights
The European Framework
7. The European Union (EU) [page 17]
France has played an important role in ensuring that these issues are high on the European agenda, particularly with respect to the adoption of the European directive on binding non-financial reporting, which France actively supported during negotiations. It also promoted the inclusion of social, environmental and governance standards in trade and investment agreements. …
Actions Underway [page 18]
- France has transposed the European Directive on trade secrets into national law, allowing businesses to protect trade secrets while assuring the necessary transparency of business activities and conduct, and the protection of whistle-blowers acting in the public interest.
8. Trade and Investment Agreements [page 19]
In its 2013 opinion, the CNCDH underlined that “the need for coherence should guide France’s foreign policy” and recommended that, in accordance with Guiding Principle no.10, “the Government support and promote the aforementioned instruments within multilateral institutions dealing with economic, commercial and financial issues, including those that are binding, that are designed to ensure that businesses respect human rights.”
As for the National CSR Platform, it issued the following recommendations:
- “Promote CSR and human rights in international trade, finance and investment agreements;
- Increase the involvement of stakeholders in impact studies completed before trade negotiations with respect to CSR;
- Ensure social and environmental clauses are included and respected under these agreements;
- Reinforce the monitoring and evaluation of these agreements.”
France discussed CSR issues in a report on its international trade strategy and European trade policy (December 2015), clearly indicating that CSR is a concern addressed in its trade policies.
State measures to control access to domestic markets are powerful tools when it comes to protecting and supporting businesses that respect human rights.
However, in a document dated 24 June 2016, the Committee on Economic, Social and Cultural Rights expressed its concern at “the failure to devote sufficient attention to the impact that bilateral or multilateral trade or investment agreements concluded or being negotiated by the State party or the European Union have or will have on the enjoyment of Covenant rights in the other countries that are party to those agreements. The Committee is particularly concerned by the fact that the mechanisms for settling disputes between States and investors provided for in several agreements could reduce the State’s ability to protect and achieve some of the Covenant rights (art. 2 (1)).” Indeed, most bilateral investment agreements and a growing number of bilateral and regional trade agreements implement mechanisms for investor-State dispute settlement (ISDS). ISDS enables foreign investors to bring arbitration proceedings when they consider that host States have not complied with the terms of the original agreement. ISDS makes it possible to obtain rulings against States that do not respect their commitments (for example, due to discrimination on the basis of gender, religion, nationality, etc.). In 2014, more than 600 cases were registered around the world, not including private disputes between parties whose details were kept confidential.
In 2013, the EU and the United States began negotiating a Transatlantic Free Trade Agreement (TAFTA,) also known as the Transatlantic Trade and Investment Partnership (TTIP), which originally featured an ISDS clause. The EU has suggested replacing the ISDS clause with a bilateral investment dispute court or Investment Court System until a permanent multilateral court can been established. This reform is being defended in all European trade negotiations, and has already been accepted by Canada and Vietnam.
European trade agreements incorporate CSR and adherence to international conventions on labour and the environment. EU free trade agreements all include sustainable development chapters, which contain provisions on labour law and environmental protection. These chapters also refer to CSR. Provisions mainly reiterate key existing multilateral agreements (for example, ILO’s fundamental conventions in the labour field and multilateral environmental agreements in the environmental field). They also set out cooperation mechanisms for the parties in order to support progress in these fields. Sustainable development chapters in EU free trade agreements and investment agreements contain two further important provisions: one prevents parties to the agreement from lowering social and environmental standards to promote trade and attract investments; the other confirms States’ right to regulate in the social and environmental fields.
These provisions have been included in European trade agreements since 2008. They are now systematically incorporated into agreements being negotiated, including the TTIP. The European Commission can adapt commitments to social and environmental standards based on a country’s level of development.
Otherwise, France is currently revising its model agreement for the protection of investments. In particular, it is planning to significantly reinforce provisions on CSR and the State’s capacity to regulate in the social, environmental, health and cultural fields, as per the European draft model.
From the French perspective, addressing these issues in free trade agreements results in a number of weaknesses:
- Firstly, State-to-State dispute settlement (SSDS) mechanisms do not apply to social and environmental standards and human rights clauses. If standards are not met, consultations take place between the EU and the third country, after which an expert committee is created to suggest possible solutions. Moreover, European trade agreements do not provide for sanctions, unlike US agreements, which have lower human rights standards than those concluded by the EU. The lack of sanctions makes these provisions difficult to enforce.
- Secondly, although trade agreements include social and environmental standards and human rights clauses taken from the main international texts on labour laws and the environment, international organizations (the UNDP, ILO, etc.) are not involved in negotiations, despite the fact they carefully monitor the implementation of these texts (through regular reports by State parties, etc.). Instead, in trade agreements, a committee meeting at least once per year is charged with monitoring the implementation of sustainable development chapters. Civil society (NGOs and nonprofit organizations) can also act as whistle-blowers if these regulations are breached, although this power is not institutionalized. Discussions with civil society are generally formalized by way of an annual forum or consultative committee bringing together stakeholders from different backgrounds.
To respect human rights and support responsible practices, social and environmental costs must be included in cost prices. The EU condemns social and environmental dumping and selling at a loss. France must encourage the international bodies to which it is party to implement measures guaranteeing fair and undistorted competition.
In 2013, France issued a number of proposals to improve the way in which social and environmental standards were addressed in European trade agreements. These proposals are still relevant.
These proposals focus on five main areas:
- Improving cooperation with international organizations working in the labour and environmental protection fields (ILO, UNDP, UNEP, etc.). Some of these
organizations, particularly UN organizations, are running cooperation projects in countries currently negotiating trade agreements with the EU. Some of these cooperation activities are oriented in such a way that they directly support the social and environmental goals set down in agreements. This is the case for some countries that have just concluded trade agreements or countries benefiting from Europe’s Generalised Scheme of Preferences (GSP).10
- Improving the evaluation of sustainable development chapters through rigorous impact assessments. These impact assessments must provide a clear overview of social and environmental standards in countries negotiating agreements with the EU. France has completed a major revision of the European manual used to write these impact assessments. This could lead to progress in the field.
- Giving civil society more power to monitor these chapters. In addition to the annual forums currently planned by the European Commission, European trade agreements could give civil society (NGOs and trade unions) a formal “whistle-blower” role, denouncing breaches of social and environmental standards. The Commission has decided not to look further into this option at this stage.
- Improving the enforcement of existing sustainable development chapters by reinforcing implementation mechanisms. In November 2015, the French Minister of State for Foreign Trade sent a letter to European Commissioner Cecilia Malström asking the European Commission to investigate ways of including these chapters in dispute settlement mechanisms in trade agreements.
- Increasing the involvement of businesses by including CSR requirements in sustainable development chapters in trade agreements. Currently, these chapters contain a short paragraph on CSR, but this should be reinforced by adding references to key international texts on the subject (particularly the OECD Guidelines).
Actions Underway [page 21]
- France has undertaken to promote the UN Guiding Principles in its trade relations with other States and confirms its commitment to the hierarchy of norms when signing trade and investment agreements.
- France also checks that all trade and investment agreements comply with international human rights law.
- France, working with other European partners who support this initiative, is building on proposals made to the previous European Commission (in March 2013) to reinforce social and environmental standards in free trade agreements and monitor their enforcement.
Actions to be Implemented [page 22]
- Monitor compliance with the recommendations issued by the Committee on Economic, Social and Cultural Rights in its opinion of 24 June 2016.
- Encourage impact assessments to be completed before and after agreements are concluded and make all free trade agreements conditional on the inclusion of human rights clauses and the prioritization of the UN Guiding Principles.
- Ensure that sustainable development chapters in EU free trade agreements are binding and enforceable under these agreements’ dispute settlement mechanisms.
- Support responsible businesses by giving goods and services produced in compliance with human rights obligations better access to French and European
- Initiate discussions on the consequences of failing to respect human rights and the inclusion of human rights in policies tackling unfair competition.
- Contribute to debate on recognizing the concept of a group of companies in the EU. France’s General Secretariat for European Affairs will support this work and distribute relevant documentation to lead ministries, in order to guarantee inter-ministerial coordination on European issues and their assessment by European institutions.
There is no mention of trade in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
1.1 Basic rules of economic policy
Bi- and multilateral economic relations [page 17-18]
“Under Article 207 of the Treaty on the Functioning of the European Union (TFEU), commercial policy lies within the sphere of competence of the EU. Within the Federal Government, the Federal Ministry for Economic Affairs and Energy is responsible for formulating German positions in the realm of commercial policy and advancing them in European and global forums. For the export-driven German economy, particular importance attaches to the elimination of trade barriers and reinforcement of the multilateral trade system. Trade, moreover, can make a major contribution to sustainable development. In this context, it is important that trade should be shaped in a development-friendly way. This means, for example, that environmental, social and human rights standards should firmly underpin free-trade agreements, which should be accompanied by impact-assessment and monitoring mechanisms.”
The current situation
“The institutions and Member States of the EU are also bound by their human rights obligations when implementing Union legislation. Germany supports the EU practice of agreeing on provisions designed to safeguard human rights in framework agreements with trading partners and using sustainability chapters in all new free-trade agreements to enshrine high labour, social and environmental standards. Germany is committed to the negotiation of comprehensive binding standards for inclusion in these sustainability chapters. The EU ‘Trade for All’ strategy which was presented in the autumn of 2015 also emphasises that commercial policy should advance sustainable development and human rights throughout the world. At the same time, freetrade agreements also guarantee the right to regulate, which preserves the necessary leeway for states to protect human rights.
The Federal Government supports further development of the range of instruments for human rights impact assessment of trade and investment agreements.”
- “The Federal Government is pressing for the inclusion of an ambitious sustainability chapter in the planned TTIP agreement with the United States.
- The Federal Government advocates and supports further development of the range of instruments for human rights impact assessments of the EU’s trade and investment agreements. Moreover, comprehensive impact assessments should be conducted before negotiations begin, so as to guarantee that the findings of the assessments can influence the negotiations.
- In the framework of the Aid for Trade initiative, the Federal Government supports developing countries’ efforts to improve their trading opportunities. In the future, the Federal Government will focus even more sharply on supporting compliance with labour, social and environmental standards.
- The EU Special Incentive Arrangement for Sustainable Development and Good Governance (‘GSP+’) can be used as a format for promoting the observance and application of human rights standards by governments of developing countries. In the forthcoming review process of 2018, the Federal Government will press for further strengthening of that instrument.”
1.3 State support
Export credits, investment guarantees and other instruments for the promotion of external trade [page 23-25]
“The instruments of external-trade promotion in Germany provide assistance for German enterprises in accessing and safeguarding foreign markets. The range of instruments includes the provision of advice by German diplomatic and consular missions, the network of German Chambers of Commerce Abroad and the Germany Trade & Invest (GTAI) agency. The Federal Government also supports participation in trade fairs abroad, arranges visits by delegations and funds hedging instruments such as export credit guarantees, known as Hermes guarantees, to insure export transactions, federal guarantees for direct investments abroad (DIAs) and untied loan guarantees as insurance for banks against the risk of default.”
- “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 National Contact Points for the OECD Guidelines (see subsection 4.2 below) will be upgraded to become the central grievance mechanism for external trade promotion projects.
- 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
Measures [page 30]
- “The Federal Government will support the systematic inclusion of sustainability chapters in free-trade agreements, which will prescribe, among other things, compliance with the ILO Core Labour Standards.”
2.3 Business activity in conflict zones [page 32]
“In fragile or war-torn countries, there is often a danger that trade in raw materials is cornered by destabilising players, who will use it for their own ends and thereby fuel existing conflicts.”
The current situation
“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.”
3. Available means of practical implementation support [page 34]
“I. Helpdesk and initial consultation
- The Federal Government will significantly increase the reporting and consultation output of German diplomatic and consular missions in collaboration with the other pillars of external-trade promotion, namely the Chambers of Commerce Abroad and Germany Trade and Invest. …”
VI. Monitoring [page 41]
- “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.”
Foreword [page 5]
“I believe that the protection of human rights and the promotion of economic growth, trade and investment should be complementary and mutually reinforcing”
Section 3: Actions
I. Key commitments to ensure policy coherence across government [page 17]
“Ensure coherence between Ireland’s new Trading Strategy: ‘Ireland Connected: Trading and Investing in a Dynamic World’, and the National Plan on Business and Human Rights.”
- The Departments of Foreign Affairs and Trade, Enterprise and Innovation, Education and Skills, Transport, Tourism and Sport, Community and Rural affairs, Arts, & Heritage & the Gaeltacht, Agriculture, Fisheries and Marine
II. Initial priorities for the Business and Human Rights Implementation Group [page 18]
“xii. Create a fact sheet on the OECD Anti-Bribery Convention, the criminal offences in Irish law on bribery, the reporting systems in place for reporting suspicions of foreign corruption and the protections provided by the Protected Disclosures Act to be distributed by Enterprise Ireland to all Irish companies engaged in trade missions.”
Annex 1 – List of additional and ongoing actions to be carried out across Government
EU and Multilateral Efforts [page 20]
“7. Continue to take account of the human rights elements of European Commission impact assessments when providing input in the course of Free Trade Agreement (FTA) negotiations and support the appropriate implementation of human rights clauses in FTAs as they arise in EU Agreements.”
Trade and Investment [page 21]
“11. Provide information to participants in overseas trade missions led by Government representatives on human rights issues in the destination countries.
12. Ensure that State agencies and staff involved in promoting two-way trade and investment have received briefing and guidance on the purpose and implementation of the UN Guiding Principles.
13. Encourage Irish companies operating abroad to adopt good practice with regards to consultation with human rights defenders and civil society in local communities, particularly on environmental and labour conditions.
14. Under the aegis of the Office of Government Procurement, continue to follow good practice on procurement and human rights standards in all Requests for Tenders, in line with EU law.
15. Provide up to date guidance on the protection of human rights defenders working in the area of business and human rights through the circulation of Human Rights Defenders Guidelines to all Embassies.
16. Provide information from Embassies, working in cooperation with state agencies as appropriate, to Irish companies on business and human rights issues in their host countries.
17. Enhance awareness of human rights commitments, ethical business practice and development policy in international business promotion events, as appropriate.
18. Provide advice to business enterprises of the possible risks of human rights situations when operating in conflict affected areas.
19. Ensure awareness of the International Finance Corporation (IFC) performance standards among state owned companies that invest in or manage projects, outside of OECD high income countries, which exceed the euro equivalent of US$10 million.”
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“46. Strengthen support, at international and European level, for the promotion and inclusion of social and environmental sustainability clauses in international and trade and investment treaties” (p. 68)
Chapter 2. Action Plan
2. Areas of the NAP
(2) Measures of the Government as an Actor regarding State Duty to Protect Human Rights
C. Promotion and Expansion of the Business and Human Rights Agenda in the International Community
(Existing framework/Measures taken）
In the areas directly related to business activities, the Government has incorporated clauses concerning social issues, including labour and the environment in some of the EPAs and investment treaties that Japan has signed or ratified in a manner consistent with trade rules such as those of the World Trade Organization (WTO), and promoted shared understanding between signatories on values to be respected, such as securing appropriate labour standards and conditions and protection of the environment. For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP11 Agreement) includes an independent Labour Chapter and Environment Chapter as well as provisions on women’s participation, and the Japan-EU Economic Partnership Agreement (EPA) includes a Trade and Sustainable Development Chapter. On top of this, the Japan-EU EPA also stipulates that the parties shall convene joint dialogue with civil society, establishing that civil society shall play a certain role through exchange of opinions on themes such as trade and sustainable development, the environment, and labour.
(Future measures planned)
(c) Continue to contribute to discussions regarding relations between economic activities and social issues, at international forums, including international organizations such as the OECD and the World Bank [Ministry of Foreign Affairs, Ministry of Finance, Ministry of Economy, Trade and Industry]
(d）Continue to make efforts towards concluding EPAs and investment agreements that benefit not only industry but also a wide range of people, including workers [Ministry of Foreign Affairs, Ministry of Finance, Ministry of Agriculture, Forestry and Fisheries, Ministry of Economy, Trade and Industry]
(e）Periodically continue joint dialogue with civil society under the Japan-EU EPA (first dialogue held in January 2020) [Ministry of Foreign Affairs]
(4) Measures regarding Access to Remedy
Judicial and Non-Judicial Remedy
(Future measures planned)
(h) Continue the provision of grievance redress services in development cooperation and development financing
|CHAPTER THREE: POLICY ACTIONS
3.1. Pillar 1: The State Duty to Protect [Page 18]
The Government will:
xii. Review current trade and investment promotion agreements and bring them into compliance with the Constitution and international human rights standards to ensure that they are not used to facilitate illicit financial flows and tax evasion by businesses.
CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 22]
To ensure that the measures proposed in this NAP are implemented, there shall be a NAP Steering Committee overseen by the Department of Justice and the Kenya National Commission on Human Rights. The Implementing Committee will consist of representatives from the following institutions:
5. Ministry of Trade and Industrialisation
ANNEX 1: SUMMARY OF POLICY ACTIONS
The Lithuanian NAP makes no reference to trade.
‘Luxembourg’s NAP does not explicitly address this issue’
The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.
‘The Mexico NAP does not explicitly address this issue’
2. Current policy [page 9]
“As the government pointed out in A World to Gain,its policy document on aid and trade, International Corporate Social Responsibility (ICSR) is a prerequisite for sustainable, inclusive growth.”
3.1 An active role for the government [page 15-16]
Human rights and trade missions
“For many of the people interviewed, raising the issue of human rights during trade missions is an example of a proactive approach that can enable the government to fulfil its Duty to Protect.
For the government, it is essential to encourage ICSR during trade missions, and it has now become a permanent feature of them. The government expects companies represented in a trade mission to look into the possible adverse effects of their operations on communities, including on human rights, in the country in question, and to pursue policies to mitigate them.
Trade mission to Indonesia
“Between 20 and 22 November 2013, Prime Minister Mark Rutte led a trade mission to Indonesia. He was accompanied by the Minister for Foreign Trade and Development Cooperation and the Minister for Agriculture. During talks with the Indonesian President Susilo Bambang Yudhoyono, Mr Rutte raised the issue of human rights. He also opened a forum on sustainable production and trade, organised in collaboration with the Sustainable Trade Initiative. The Minister for Foreign Trade and Development Cooperation took part in this forum and talked with representatives of Indonesia’s government, civil society organisations and private sector on the importance of sustainable production of and trade in palm oil and pulp for the paper industry”
3.2 Policy coherence [page 16-21]
“It became apparent from the consultations that the government sometimes conveys conflicting messages about CSR and human rights – for example about the most important norms, and which ministry is responsible for which part of the policy. For civil society and implementing organisations, coherence is essential. During the consultations, specific attention was requested for international policy coherence and incorporation of the UN Guiding Principles in trade and investment agreements.”
Trade and investment agreements
“Incorporating the OECD Guidelines and UN Guiding Principles in trade and investment agreements was one of the suggestions made during the consultations.
The government is committed to including clear provisions on the relationship between trade, investment and sustainability in trade and investment agreements. Within the EU, the Netherlands urges the inclusion in these agreements of a section on trade and sustainable development, with monitoring and enforcement mechanisms. The aim is for parties to reaffirm their commitment to fulfilling their ILO obligations to eliminate child labour and forced labour and to working together to this end. Agreements also need to be made on cooperating on and promoting CSR, through the OECD Guidelines, for instance. For the Netherlands, involvement of civil society organisations is an essential component of any agreement.
The EU’s aim is for every trade agreement to be linked to a broader partnership and cooperation agreement reaffirming states’ human rights obligations. Where human rights are abused, the trade agreement could ultimately be suspended. …
The Lisbon Treaty gave the EU exclusive competence on direct foreign investment. With this shift, which does not apply to every aspect of investment, the EU now negotiates investment treaties together with the member states. Each EU investment agreement will most likely contain a separate section on environment, labour, sustainability and transparency, dealing with these issues in greater detail. The Netherlands is very much in favour of including such sections in all future EU investment protection agreements.
Existing Dutch bilateral trade agreements provide parties with the policy space to take non-discriminatory measures to protect public interests such as human rights, working conditions and the environment. The Lisbon Treaty gave the EU exclusive competence on direct foreign investment. With this shift, which does not apply to every aspect of investment, the EU now negotiates investment treaties together with the member states. Each EU investment agreement will most likely contain a separate section on environment, labour, sustainability and transparency, dealing with these issues in greater detail. The Netherlands is very much in favour of including such sections in all future EU investment protection agreements.”
Free trade agreement between the EU, Peru and Colombia
“Free trade agreement between the EU, Peru and Colombia The free trade agreement between the EU, Peru and Colombia seeks to reaffirm respect for human rights and ensure sustainable economic development. Title IX on Trade and Sustainable Development contains provisions on supervision and implementation, based on labour and environmental standards, with agreements on promoting and implementing internationally recognised ILO labour standards. The Colombian government undertakes to consult civil society organisations each year on implementation of this Title of the trade agreement. These organisations may also issue recommendations on their own initiative.”
3.3 Clarifying due diligence
Due diligence by government [page 27]
“A point raised in the consultations was that the government should also apply due diligence to its own activities, for example in providing support for companies in the form of grants or other types of finance for activities abroad, export credit insurance and trade missions. In all these cases, the government requires the companies concerned to apply due diligence. …
For some time now the government has applied ICSR frameworks for risk assessment (due diligence) to all applications for support. These frameworks differ, depending on the goals and the nature of the instrument in question. For example, the ICSR framework for trade missions differs from the frameworks for project grants or export credit insurance.”
1. Global development and CSR [page 12]:
Globalisation is therefore a basically positive process, and over the last 20 years Norway has benefited from global trade. (…) Although Europe and the Nordic countries are our most important trading partners, trade with and investment in Asia, South America and Africa are growing.
1.1 Developing an international framework [page 12]:
The idea behind this is that business is a driving force for globalisation that can help ensure that trade, markets and technology are developed in ways that benefit economies and societies throughout the world.
1.4 Purpose of The Action Plan, [page 14]:
Norwegian foreign and development policy is based on promoting democracy, human rights, growth economies that create jobs, a proactive trade policy, sustainable development and an international legal order. We are also intensifying our economic diplomacy efforts by focusing more strongly on trade, energy and climate, and, in our development policy, on private sector development.
2.8 Free-trade agreements and investments contracts [page 26]:
Norway is bound by reciprocal obligations through its membership of international trade organisations such as EFTA and WTO. The Ministry of Trade, Industry and Fisheries has the overall responsibility for bilateral free trade agreements (EFTA) and investment contracts, while the Ministry of Foreign Affairs is responsible for WTO negotiations.
Measures [page 27]:
Seek to ensure that provisions on respect for human rights, including fundamental workers’ rights, and the environment are included in bilateral free trade and investment agreements.
CHAPTER 3: National Action Plan Priority Areas and Proposed Actions
3.2 NAP Priority Areas
3.2.3 | Human Rights Due Diligence (page 25)
‘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.’
- Federal (page 26)
‘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 Annex 1: Implementation Plan, Proposed Action 34 designating the Ministry of Commerce as Leading Entity (page 56).
CHAPTER II: THE BUSINESS AND HUMAN RIGHTS SITUATION IN PERU
2017-2020 NATIONAL ACTION PLAN
1. History of the initiative [page 5]:
The Plan also aims to take into account the principles of corporate social responsibility in EU trade and investment agreements. In the above-mentioned document, the European Union and its Member States declared that they would develop national action plans for practical implementation of the UN Guiding Principles.
Pillar I: The state’s duty to protect human rights
5. Planned changes in national legislation
Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products [page 20]:
The Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products was prepared by the Ministry of Agriculture and Rural Development. Signed by the President on 28 December 2016, it will enter into force on 12 July 2017. The new law’s primary goal is to ensure the effective resolution of disputes between suppliers and buyers of food and agricultural products. A contractual advantage occurs when there is considerable disproportion between economic potential, while the weaker party has insufficient ability to sell or buy agricultural or food products from other entrepreneurs.
2021-2024 NATIONAL ACTION PLAN
|8. Ministry of Agriculture and Rural Development
Implementation of the Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products
Since July 2017, the provisions of the Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products (Journal of Laws of 2020, item 1213) have been in force in Poland. The provisions of the Act are aimed at eliminating the use of unfair trade practices in the supply chain of agricultural raw materials and food. A situation of considerable imbalance in the economic potential of enterprises may lead to unfair trade practices whereby larger and stronger trading partners try to impose practices or contractual arrangements favourable to them on the weaker party. The issue of imbalance among the participants of the food supply chain occurs not only in Poland but is also observed in the majority of the European Union countries due to the presence of economically strong consolidated entities of the distribution sector – frequently also the processing sector – and weaker fragmented entities producing agricultural raw materials and foodstuffs. Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain (OJ L 111, 25.4.2019, p. 59) introduced a common minimum framework across the EU for applying a uniform approach to unfair trading practices in the food supply chain. The implementation of the provisions of said Directive significantly changes the scope of the previously applied Act of 15 December 2016 on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products. In view of the foregoing, the Ministry of Agriculture and Rural Development has drafted a new Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products. Compared to the legislation currently in force, the definition of agricultural and food products has been extended to include, inter alia, feed, live animals, oilseeds and oleaginous fruit, the definition of a purchaser and a public authority, and a catalogue of prohibited unfair trading practices. The possibility of voluntary submission to penalties has also been introduced (reduction of the penalty to 50%). The President of the Office of Competition and Consumer Protection will remain the competent body in matters of practices unfairly exploiting contractual advantage; the anonymity of the notifier will also be ensured, as is currently the case, and the possible penalties for entrepreneurs will be maintained in their current shape. Pursuant to Article13 of the aforementioned directive, the provisions implementing the directive must be in force from 1 November 2021 at the latest. The new Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products will be more effective in limiting practices which may negatively affect the efficient functioning of the agricultural and food product supply chain and will also ensure effective mutual cooperation of relevant authorities of the Member States, and their cooperation with the European Commission. – page 28
Authorisation to export arms and military equipment
The Security Policy Department of the Ministry of Foreign Affairs will take into account the United Nations Guiding Principles on Business and Human Rights in the course of assessment procedure regarding applications for granting permission to export arms and military equipment, in accordance with Articles 12 and 12 a. of the Act of 29 November 2000 on Foreign Trade in Goods, Technologies and Services of Strategic Significance for State Security and for Maintaining International Peace and Security and Article 88 of the Act of 13 June 2019 on Conditions of Business Activity related to the Production of and Trade in Explosives, Weapons and Ammunition, as well as Products and Technologies to be used for Military or Police Purposes. A criterion taken into account by the Department when assessing applications for the granting of export licences is, inter alia, a risk assessment as to whether the arms to be exported could be used for activities in violation of international humanitarian law or whether the granting of the licence would have a negative impact on respect for human rights. – page 30/31
Principle 9 – Adequate Domestic Policy
Common trade policy falls within the exclusive competence of the European Union, a member of which is also Slovenia, and therefore Slovenia does not conclude preferential trade agreements with other countries. The latest trade agreements contain sustainable development provisions, which require that the signatories respect workers’ rights by acceding to ILO conventions, to protect the environment and to observe the provisions contained in the OECD Guidelines for multinational enterprises. (pg. 30)
C. Current Status
1. Domestic Status [page 3]
- Revision of 「Procurement Business Act」 and addition of an article promoting corporate social responsibility on January 2016
* Article 3-2 (Encouraging Social Responsibility)
The administrator of the Public Procurement Service may reflect social and environmental values such as … fair trade, … in the procurement process to encourage corporate social responsibility.
Guiding Principle 3
“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.”
Guiding Principle 4
“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.”
“The Government will carry out an raising-awareness and training campaign on the Guiding Principles directed at all government departments and agencies, and other state institutions that support the internationalization of the Spanish companies.”
Guiding Principle 8
“The Ministries of the Treasury and Public Function; Foreign Affairs and Cooperation; Economy, Industry and Competitiveness; Energy, Tourism and Digital Agenda will train and provide support on the Guiding Principles through their dependent agencies, to departments, government agencies and other state institutions that encourage and support the creation of businesses, business competitiveness and commercial and financial business practices in order to promote the coherence of policies and processes with the Guiding Principles and the international standards of human rights mandatory for Spain.”
Guiding Principle 9
“The Government will promote the inclusion of references to the respect of human rights in agreements on trade, investment or other related business activities signed by Spain that affect the scope of the Guiding Principles. Likewise, the Government will promote the inclusion of such references in the agreements entered into by the European Union with third-party States.”
Foreword [page 3]
“Business and respect for human rights go hand in hand and should be part of an active corporate social responsibility policy. Corporate social responsibility therefore plays an important role in both trade policy and export promotion. We are now developing a more ambitious policy for corporate social responsibility while working on an export strategy to strengthen export and internationalisation opportunities for Swedish companies in important growth markets around the world. Our export strategy will help to ensure that Sweden has the lowest unemployment rate in the EU by 2020.”
The three pillars of the UN Guiding Principles on Business and Human Rights [page 6-7]
“The action plan is also an important part of the Government’s heightened ambitions for foreign trade, through the export strategy, CSR and other areas. …
Trade and CSR can also help influence the human rights situation in other countries, for example where respect for democracy and human rights is inadequate.”
Annex: Measures taken [page 21-24]
The State as actor
- “Sweden has pushed for the inclusion of references to CSR in the chapters on sustainability in the EU’s bilateral and regional trade agreements, investment agreements and partnership and cooperation agreements. …
- The conduct of companies in relation to armed conflicts is highly relevant to respect for human rights. Sweden has proposed sharper formulations in the draft regulation on responsible trade in minerals from conflict areas that is currently being discussed in the EU. In other words, we consider it should be mandatory for importers from particularly problematic countries to obtain certification. Sweden is carrying out awareness-raising activities on this issue and supports the OECD’s work on how companies are to identify risks in the supply chain and avoid trade in conflict minerals (OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas).”
Action by government agencies
- “Business Sweden (the Swedish Trade & Invest Council) is required to follow the UN Guiding Principles on Business and Human Rights …”
Annex: Measures planned [page 27-29]
“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.”
- “Business Sweden (the Swedish Trade & Invest Council) will be instructed to strengthen its implementation of the UN Guiding Principles on Business and Human Rights and, in particular, to support small and medium-sized enterprises in this area.
- Sweden will act to ensure that the EU includes references to CSR, including the UN Guiding Principles for Business and Human Rights, in the sustainability chapters of its bilateral and regional trade agreements, investment agreements and partnership and cooperation agreements.
- Sweden will work with like-minded countries in the EU to strengthen EU policy in this area, for example, by persuading more EU countries to adopt national action plans based on the Guidelines.
- In the OECD, Sweden will work to strengthen efforts to promote the OECD Guidelines for Multinational Enterprises among non-OECD countries.”
The State as development partner
- “The Government will integrate sustainability issues into trade policy and export promotion and in the context of the relaunch of the Policy for Global Development and its efforts to contribute to the new global sustainable development goals (SDGs).”
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
2.1.2 Operational principles: legislative and information policy measures
Measure 1: Rules on the export of war material and technologies for internet surveillance
The manufacture, brokerage, export and transit of war material for recipients abroad will be authorised if this is not contrary to international law, international obligations and the principles of Swiss foreign policy. The decision on whether or not to issue authorisation for a foreign transaction must abide by the criteria laid down in the War Material Ordinance. Among the domestic factors that inform this decision is whether the country of destination respects human rights. If the country of destination violates human rights in a systematic and serious manner, it is imperative that the export licence be denied. However, authorisation might still be granted in exceptional cases if there is a low risk that the exported war material will be used to commit serious violations of human rights.
Technologies for internet and mobile communication surveillance (goods, technology and software) can be used for both civilian and military purposes, i.e. they are dual-use goods. As such, they can be an element in state repression, thereby exposing the business enterprises that manufacture or trade in them to an increased risk of becoming involved in human rights abuses. The export or brokerage of technologies for internet and mobile communication surveillance is governed by the Ordonnance sur l’exportation et le courtage de biens destinés à la surveillance d’Internet et des communications mobiles (Ordinance on the export and brokerage of technologies for internet and mobile communications surveillance).15 A licence to export or to broker such goods must be refused if there is reason to believe that the exported or brokered good will be used by the final recipient as a means of repression.
|Implement legal provisions on the transfer of controlled goods with a view to ensuring that international law and, in particular, human rights are respected.||Report on Federal Council activities to the parliamentary Control Committees detailing exports of war material, and the foreign economic policy report that includes an appendix listing all goods exported under the Goods Control Act.||EAER [Federal Department of Economic Affairs, Education and Research]|
Measure 7: Reduction in human rights risks associated with gold extraction and trading
At the end of 2018, the Federal Council adopted a report setting out a range of measures designed to improve the traceability of gold imported to Switzerland, strengthen multi-stakeholder dialogue and expand development cooperation on responsible gold production.21
The measures aim to improve the collection and publication of information on the sources of gold imported in Switzerland, and increase transparency not only regarding the risk assessments conducted by the industry but also regarding its human rights due diligence. The federal government will take steps to promote best practices and examine the possible use of blockchain technologies to improve traceability in the gold industry.
Switzerland will continue to support the implementation of OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and other relevant guidelines. As recommended in the above report, it will explore the possibility of granting the Central Office for Precious Metals Control wider responsibilities, including with respect to transparency on the provenance of gold imported to Switzerland.
|Prevent human rights risks associated with gold extraction and trading.||A number of recommendations in the Federal Council Report on gold trading and human rights have been implemented.||FDFA [Federal Department of Foreign Affairs],
FDF [Federal Department of Finance],
EAER [Federal Department of Economic Affairs, Education and Research],
FDHA [Federal Department of Home Affairs].
2.1.4 Business respect for human rights in conflict-affected areas
Measure 15: Economic sanctions
The Federal Act on the Implementation of International Sanctions (Embargo Act, EmbA) provides that Switzerland may apply non-military sanctions imposed by the UN, the OSCE and Switzerland’s major trading partners for the purpose of complying with international law and, in particular, upholding human rights. The Embargo Act itself does not refer to specific sanctions as such, but provides the legal framework for the Federal Council to adopt ordinances on the imposition of sanctions. Sanctions may include restrictions or prohibitions on the trade in goods, services, payments, capital and the movement of people. Sanctions policy strategy is based on the principles laid down in Switzerland’s foreign policy and foreign economic policy.
|Contribute to ensuring compliance with international law, in particular human rights, through the implementation of economic sanctions.||The list of current sanctions shows that UN Security Council sanctions are implemented fully and systematically. The Federal Council also decides, having duly considered the interests involved in the particular circumstances, to join the sanctions imposed by its main trading partners, especially the European Union.||EAER [Federal Department of Economic Affairs, Education and Research]|
2.1.5 Policy coherence
Guiding Principle 9
The federal government enters into economic agreements with other States or with business enterprises. They include bilateral investment promotion and protection agreements, free trade agreements and agreements governing investment projects. The federal government should ensure that these agreements provide sufficient domestic policy scope to fulfil the human rights obligations of both Switzerland and the contracting partner.
As part of its commitment to upholding human rights, the Federal Council should ensure that provisions to achieve coherence are included in agreements. The provisions should provide contracting partners with sufficient scope to fulfil their human rights obligations. The federal government also supports projects specifically designed to foster respect for human rights among business enterprises in partner countries.
Measure 18: Consistency between trade agreements and protection of human rights
The primary aim of free trade agreements is to foster bilateral trade relations and increase the economic competitiveness of contracting states. In negotiating free trade agreements (and investment promotion and protection agreements; see below), Switzerland is committed to ensuring that provisions to achieve consistency between trade and sustainable development are included. These serve to underline the parties’ obligation to comply with the applicable multilateral environmental agreements and ILO conventions, and to implement them effectively. They also refer to international instruments to protect human rights, and the principles of responsible corporate governance. Swiss free trade agreements also contain provisions stipulating that the agreement should not impede or compromise existing obligations under international law, including in respect of human rights. Free trade agreements are monitored by joint committees. Civil society contributes to the preparatory work for joint committee meetings, specifically through the WTO/FTA liaison group. The Federal Council continues to monitor and conduct impact assessments regarding international developments on human rights due diligence in trade agreements.
In the interests of policy coherence, Switzerland also advocates the inclusion of consistency provisions when negotiating investment protection agreements (IPAs). The federal government drafted provisions to achieve greater consistency between IPAs and sustainable development objectives (e.g. provisions setting out the right to regulate; references to human rights and corporate social responsibility in the recitals to IPAs). These provisions underline the importance of interpreting and applying these agreements in a manner that is consistent with other international commitments undertaken by Switzerland and its partner countries, including those on human rights protection.
|Improve consistency between Switzerland’s trade agreements and respect for human rights.||Human rights references, corporate social responsibility and the right to regulate are incorporated into trade agreements (FTAs/IPAs) submitted to parliament.
The subject is discussed by the WTO/FTA liaison group.
|EAER [Federal Department of Economic Affairs, Education and Research]|
III. The state duty to protect human rights
B. Actions taken
- Promotion of international exchange and cooperation (page 7)
‘Taiwan has inserted “CSR clauses,” “investment/environmental/labor clauses,” and “general exceptions” into previously signed trade and investment agreements, so our government has taken concrete actions to safeguard human rights.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The state duty to protect, UNGP9, Actions taken (page 49).
C. Actions planned
- Actively incorporate human rights clauses into economic and trade agreements (page 10)
‘In the future, during the process of discussing and signing bilateral or multilateral economic and trade agreements, Taiwan’s government agencies in charge of economic and trade negotiations will also continue seeking to include human rights clauses to be observed by all signatories.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The state duty to protect, UNGP9, Actions planned (page 50).
Appendix 1: Concrete actions taken by Taiwan to fulfill the state obligation to protect
- Promotion of international consensus and cooperation (pages 28-29)
‘In line with this, Taiwan has included CSR, environmental, and worker rights clauses, as well as “general exceptions,” in many of its trade and investment agreements, such as the following:
A CSR clause is included as Article 12 of the bilateral investment agreement (BIA) between the Taipei Economic and Cultural Center in India and the India-Taipei Association.
Inclusion of “investment/environment/labor” clauses: Host states shall not attract investment by relaxing health, safety, or environmental protections, or by lowering labor standards. At present, Taiwan has several free trade agreements (FTAs) with such clauses, including Article 10.15 of the Taiwan-Guatemala FTA, Article 10.11 of the Taiwan-Nicaragua FTA, Article 10.16 of the Taiwan-El Salvador-Honduras FTA, Article 24 of the Taiwan -Japan BIA, and Article 12.16 of the Taiwan-New Zealand FTA.
“General exception” clauses: These clauses focus on the following twin 29 themes: 1) investment agreement specifications shall not be interpreted as prohibiting host states from adopting necessary measures based on public interests, such as protecting human health, and 2) such measures should not cause arbitrary or unreasonable discrimination against investors. Such “general exception” clauses are included in Article 16 of the Taiwan-St. Vincent BIA, Article 16 of the Taiwan-Philippines BIA, and Article 31 of the Taiwan-India BIA.’
3 The core content of the National Action Plan on Business and Human Rights
3.4 Action Plan on Cross Border Investment and Multinational Enterprises
Government should consider human rights impacts before signing international trade or investment agreements and treaties. Review provisions for a stabilization clause in the investment agreement that will not affect government policies to promote the UNGPs. Measures for business organizations located in the territory or jurisdiction of the sovereignty of Thailand must comply with The UNGPs.
3.4.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
|Responsible agencies||Time-frame (2019–2022)||Indicators (wide frame)||Compliance with National Strategy/ SDGs/UNGPs|
|3.||Promotion of Investment||Consider measures to encourage business organizations which are located in the territory or jurisdiction of Thailand’s sovereignty to abide by the UNGPs.
In initiating or developing projects, consideration must be given to public benefits, rights of public participation and impact on people in the area before deciding to proceed with the project
|– Office of the Securities and Exchange Commission||2019–2022||Training for business organizations that are located in the territory or jurisdiction of Thailand’s sovereignty to abide by the UNGPs||– National Strategy for National Competitiveness Enhancement
– National Strategy for Human Capital Development and Strengthening
– SDG 8 and 16
– UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
|Create awareness, promote and facilitate business for Thai investors going to foreign countries to respect the principles of human rights as well as comply with various rules including regulations regarding human rights of the host country by consider making guidelines for investment in each country||– Office of the Board of Investment
– Bank for Export and Import of Thailand
– Office of the Securities and Exchange Commission
– Ministry of Commerce (Department of Trade Promotion International)
|2019–2022||Entrepreneurs who are going to invest in foreign countries trained and educated to respect human rights principles||– National Strategy for National Competitiveness Enhancement
– National Strategy for Human Capital Development and Strengthening
– SDG 8, 16 and 17
– UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
CHAPTER FIVE: INSTITUTIONAL FRAMEWORK
5.8 Ministry of Trade, Industrial and Cooperatives
- Attract investors with credible human rights records.
- Ensure adherence to human rights standards by investors.
- Incorporate human rights requirements in their investment promotion strategies.
The UK 2013 NAP in the section on Actions taken to support business implementation of the UNGPs states that [page 15]
“To help businesses to fulfil their responsibility to respect human rights we have so far:
(iii) developed the joint FCO-UKTI Overseas Business Risk (OBR) service, which provides information about business environments in the countries where UK Trade and Investment (UKTI) has a presence, to ensure it includes specific country human rights information and links to the UNGPs and other relevant tools and guidance; http://www.ukti.gov.uk/export/howwehelp/overseasbusinessrisk/countries.html”
The UK 2016 Updated NAP refers to trade in section Government commitments [page 11]:
“The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs:
- Support the EU commitment to consider the possible human rights impacts of free trade agreements, including where these include investment protection provisions, and take appropriate steps including through the incorporation of human rights clauses as appropriate.”
The UK 2016 Updated NAP states in the section on Actions taken to support business implementation of the UNGPs that [page 16]:
“To help businesses to fulfil their responsibility to respect human rights the Government has:
(vii) continued to update and promote the joint FCO-UKTI Overseas Business Risk (OBR) service, which provides information about business environments in the countries where UK Trade and Investment (UKTI) has a presence, to ensure it includes specific country human rights information and links to the UNGPs and other relevant tools and guidance.
Outcome 1.2: Utilize U.S. Law, Multilateral Agreements, and Diplomacy to Promote and Enforce High Standards
New Actions [page 9]
“Enhanced Enforcement of U.S. Laws Relating to Forced Labor or Convict Labor: As a result of the February 2016 enactment by the President of the Trade Facilitation and Trade Enforcement Act of 2015, the U.S. government has removed an exception (the “consumptive demand” clause) in 19 U.S.C. § 1307 that allowed for the importation of certain forced labor-produced goods if they were not produced “in such quantities in the United States as to meet the consumptive demands of the United States.” This exception existed since 1930, and its removal facilitates the Department of Homeland Security’s (DHS) ability and ongoing commitment to prevent and investigate the importation of goods manufactured with forced labor” – Implementing Department or Agency: DHS
Ongoing Commitments and Initiatives [page 9]
“Free Trade Agreements: 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. All U.S. FTAs since 2004 also contain transparency and anti-corruption provisions, including requiring our trading partners to criminalize both domestic and foreign bribery. For instance, the TPP includes a historic transparency and anti-corruption chapter. The TPP Parties have also agreed to encourage companies to voluntarily adopt corporate social responsibility principles that the TPP parties have themselves supported or endorsed relating to labor and environment issues.” – Implementing Department or Agency: USTR, State, Commerce, DOL