Guiding Principle 1
States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.
States’ international human rights law obligations require that they respect, protect and fulfil the human rights of individuals within their territory and/ or jurisdiction. This includes the duty to protect against human rights abuse by third parties, including business enterprises.
The State duty to protect is a standard of conduct. Therefore, States are not per se responsible for human rights abuse by private actors. However, States may breach their international human rights law obligations where such abuse can be attributed to them, or where they fail to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse. While States generally have discretion in deciding upon these steps, they should consider the full range of permissible preventative and remedial measures, including policies, legislation, regulations and adjudication. States also have the duty to protect and promote the rule of law, including by taking measures to ensure equality before the law, fairness in its application, and by providing for adequate accountability, legal certainty, and procedural and legal transparency.
What National Action Plans say on Guiding Principle 1
STATUS IN BELGIUM/ACTIONS ENGAGED:
In Section 4 “Scope of the action plan” p.7:
The NAP explicitly states that “the action plan and the baseline mapping specifically address the first and third pillars of United Nations Guiding Principles on Business and Human rights, namely the obligation of the state to protect people, when third parties, including companies, infringe on human rights and need to ensure that victims of human rights violations have access to effective remedy.”
In Section 4 “The Belgian Framework on business and human rights” p. 7:
The NAP explains that “Belgium has a particularly broad framework for the protection of human rights. Firstly, the Belgian Constitution, Chapter II “Belgians and their rights”, recognizes a large number of basic civil, political, economic, social and cultural rights. On the other hand, our country has also adopted / ratified the majority of international human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, numerous International Labor Organization treaties, including the fundamental conventions, and the European Convention on Human Rights. The Belgian State was among the first to subscribe to OECD guidelines issued for multinational enterprises. In 2000, Belgium also ratified the Rome Statute, which established the International Criminal Court.”
Also, “Belgium has made continuous efforts to ensure a high level of respect for these rights and taken an active role in the development of international standards for the protection of human rights and their promotion. Our country has also recognized all the individual complaint mechanisms put in place by the UN treaties that have been ratified.”
Action point 3, Formulation de recommandations en vue d’améliorer l’accès à un mécanisme de reparation judiciaire[Recommendations for improving access to a judicial grievance mechanism] mentions that “The authorities have a duty to guarantee the access to effective remedial measures to victims of human rights violations by companies and organizations. These could be judicial, administrative, legislative or other appropriate measures. Access to effective remedy includes both the procedural and content-related aspects.”
Action point 17, 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 [Advocate for strengthening the integration of sustainable development (including human rights) in free trade agreements] explains that “the region of Brussels will ensure that a HRIA has been carried out before any ratification of investment and trade agreements, and that any major negative impact on the respect, protection and promotion of human rights has not been detected in third-party countries.”
On Action point 20, Promouvoir les entreprises publiques socialement responsables [Promote state enterprises that are socially responsible] the NAP states that “Public authorities must perform an exemplary function by the respect, protection and promotion of human rights, as well as the responsible management of its activities, both in within their sphere of influence and more particularly with state companies and/or companies’ receiving public support.”
The NAP also presents several planned ratifications:
- Ratification of the Protocol of 2014 to the ILO Convention on Forced Labor (Action Point 24)
- Ratification of the ILO Convention No. 187 on Occupational Safety and Health, ILO Convention No. 167 on Safety and Health in Construction, Convention No. 170 on Safety in the Use of Chemical Substances at Work (Action point 26)
- Ratification of ILO conventions C156 – Workers with Family Responsibilities Convention, C189 – Domestic Workers Convention, Convention No. 175 on part-time work. (Action point 25)
Business and Human Rights for Sustainable Development [page 11]
(…)We know that development is not an end in itself; it is there to serve people, their lives and their dignity. We must, as a society, continue building the frameworks and conditions for development to be a strong advocate of the respect for human rights of all those who live in this country. In this context, one of the essential stakeholders are business enterprises, because they boost the economy and cooperate in the full realisation of human rights.
(…) Chile has made the commitment to implement the international laws on human rights at all levels, including business enterprises, to contribute to sustainable development with a modern and competitive economy and a more just and equitable society.
III. First National Action Plan on Business and Human Rights in Chile [page 20]
The Plan’s main objective is to embed in Chile a culture of respect for human rights in corporate activity aimed at preventing negative impacts and, if possible, going beyond respect, strengthening positive contributions that business enterprises may offer to society and their environment. According to the Universal Declaration of Human Rights, each member of society, including business enterprises, has the duty to respect human rights.
Introduction [page 3]
Colombia is strongly committed to protecting and respecting human rights. For over ten years a large number of initiatives have been developed in the country by the State and by the enterprises, which shows that human rights are a key element in business.
II. The State as an economic actor [page 12]
Colombia has recently reiterated its commitment to the Sustainable Development Goals; it is thus a priority for the government to move on for the announcement and implementation of socially responsible investment contributing to the regional development; minimising the adverse environmental and community effects, under the efficacy and transparency principles.
Plan format and choice of themes [page 7]
The Czech Republic enjoys the democratic rule of law, guaranteeing everyone the protection of their human rights. Human rights are defined in the Charter of Fundamental Rights and Freedoms, which is part of the country’s constitutional architecture, and in a host of international conventions that have been incorporated into national law. This means that they are legally protected and enforceable.
Pillar I. State Duty to Protect
Criminal liability of legal persons in the field of human rights [pages 11-14]
Implements Principles 1 and 3a
Modern business is inconceivable without companies and cooperatives. They facilitate the concentration of funds, limit risk, and create opportunities for professional management. They are a means of implementing major business projects. However, like any other such means, companies may be open to abuse. Those who engage in crime can divide up responsibility for decisions and hide behind convoluted management structures. At large corporations, it can often be difficult to find a specific liable person. The Act on the Criminal Liability of Legal Persons resolves this by making it possible to infer that a legal person as a whole is liable.
The most serious human rights abuses can be punished as crimes. According to the case-law of the European Court of Human Rights, too, the state duty to efficiently investigate and ultimately punish infringements is central to human rights protection. However, criminal prosecution is the strongest instrument of power the state can wield, and has repercussions for employees, shareholders, creditors, business partners and others who have nothing to do with criminal activity. In this light, legislation needs to be monitored and evaluated.
While the state carries primary responsibility for human rights protection in its territory, in today’s interconnected age the stringent application of the principle of territoriality is impossible. The Czech Republic has decided that – whether unilaterally or on the strength of an international treaty – it will prosecute certain unlawful conduct by Czech nationals irrespective of where this conduct occurs. As such, it is assuming responsibility for the conduct of its nationals (including businesses) abroad, thus making it possible to fill in the regulatory gap to some extent in those cases where such conduct is not punishable under another country’s law.
Current state of play:
- The criminal liability of legal persons was introduced into Czech law in 2011 and covered and exhaustive set of criminal acts. In 2016, the concept underlying the definition of the criminal liability of legal persons was revised so that a legal person can now be liable for all crimes other than a narrow group of acts expressly precluded by law.
- Czech law allows a Czech citizen or a legal person established in the Czech Republic to be prosecuted even if they committed their crime abroad.
- Foreign nationals and legal persons perpetrating a crime to the benefit of a Czech legal person may also be prosecuted.
- Under Czech law, the most serious human rights violations can be prosecuted regardless of the perpetrator’s nationality or where such violations occurred.
- The Czech Republic is party to a number of international treaties on legal assistance and on the prosecution of various types of international criminal activity, including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
- Evaluate the impacts and practical application of the new text of the Act on the Criminal Liability of Legal Persons. If it transpires that the legislation still has loopholes impeding or preventing the prosecution of serious violations of human rights, propose amendments to the law.
Coordinator: Ministry of Justice
Deadline: 31 December 2018
Disqualification of a member of a body
Implements Principles 1 and 3b
If a company executive orders or, due to negligence or connivance, allows the company he or she manages to encroach on human rights, that executive must be found to be liable. It is always more advisable to prosecute specific culprits rather than a whole company. However, a criminal penalty is not always appropriate. Indeed, criminal prosecution appears to be too strict a response to minor or negligent breaches of the law.
One possible solution is disqualification – banning someone from holding corporate directorships. Professionals recommend disqualification as a lighter form of punishment for a number of acts directly associated with business activity. Disqualification is a punishment that is suitably harsh for the perpetrator without carrying the stigma of criminal prosecution, and does not harm the company as a whole. Furthermore, judicial proceedings in such a case are simpler and more economical.
Although current Czech law does accommodate disqualification, this is restricted to a narrow set of offences and the maximum duration is limited. In this respect, we need to explore whether the present wording of constituent elements is sufficient, i.e. whether it is broad enough for the courts to have sufficient opportunity to apply this instrument, while being definitive enough so that members of company bodies know what acts are prohibited. We should also consider what the maximum duration of disqualification ought to be for the various acts.
Current state of play:
- The disqualification of members of governing bodies from holding such office was introduced into Czech law in 2014 by the Business Corporations Act. This makes it possible to punish those who have bankrupted their company or have repeatedly and seriously breached the tenet of due diligence. They may be disqualified for up to 3 years.
- Members of governing bodies, influential persons and controlling entities may be disqualified.
- Assess the use and applicability of this concept and consider whether it needs to be revised. In particular, evaluate the breadth of constituent elements, how sufficient the definiteness and precision of the law is, as well as the maximum disqualification period and variations depending on the seriousness of the act, and consider extending this concept to other persons effectively exercising influence over the running of a company. Also consider revising this concept so that it is not limited to companies, but can also be applied to other types of organisation with a different legal form. In these assessments, focus on the punishability of acts where a member of a governing body enables human rights standards to be breached either wilfully or out of gross negligence. If the concept of disqualification proves to be hard to apply in these situations, consider revisiting the constituent elements so that disqualification is easier to impose in such circumstances.
Coordinator: Ministry of Justice
Deadline: 31 December 2020
Most serious infringements of working conditions [page 16]
Implements Principles 1, 2 and 8
Even in advanced countries, we come across cases where employees find themselves in a highly vulnerable position and are required to put up with undignified working conditions, and where their employer, for instance, refuses to pay them. The victims of this abuse are frequently foreign nationals as they have limited opportunity to defend themselves. Evidence of such practices can also be found in the Czech Republic. Those working in other people’s households are another risk group. Such actions have fallout for employees, for the state (which is robbed of taxes and insurance contributions), and for honest businesses, who cannot compete with such labour.
Whereas minor cases of labour-law violations are subject to checks by labour inspection bodies, more serious cases can be prosecuted as crimes. However, for these modern-day unfair practices to be detected and prevented effectively, there needs to be coordinated cooperation between many state bodies and social partners. There may be numerous labour-law violations in supply chains, via temporary employment agencies, or at entities that act as recruiters but do not hold a permit to do so. To make it possible to stamp out these most serious forms of abuse, businesses themselves should pay attention to working conditions at their partners and, if they detect any breaches of the law, they should either demand that corrective action be taken or sever ties. The state’s role here is to create a functioning labour market that will not cater to illegal practices. This does not mean just the repression of the perpetrators, but also the shaping of conditions conducive to the legal employment of foreign nationals.
Current state of play:
- The Czech Republic has ratified the International Labour Organisation’s Private Employment Agencies Convention (Convention No 181).
- Directive 2008/104/EC on temporary agency work, regulating this area at EU level, and Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals have been transposed into Czech law.
- A methodological guideline of the Inspector General of the State Labour Inspectorate Authority has been issued to harmonise inspection procedures in checks focusing on temporary agency work.
- The constituent elements of misdemeanours and administrative offences in labour law are being clarified.
- A law is being drawn up that will tighten conditions for the establishment and operation of temporary employment agencies. Users drawing on the services of such agencies are to be made co-responsible for the observance of commensurable wage and working conditions for temporary employees, and compulsory deposits are being introduced for each agency.
- The Ministry of Labour and Social Affairs hosts the Interministerial Body to Combat the Illegal Employment of Foreign Nationals, which plays a coordinating role, and the Economic and Social Agreement Council’s Working Party on the Mediation of Employment by Temporary Employment Agencies.
- A Concept for the Prevention of the Labour Exploitation of European Union Citizens in the Czech Republic has been produced.
- The Czech Republic activity combats human trafficking in accordance with the National Strategy to Combat Human Trafficking in the Czech Republic 2016-2019.
- Czech law contains procedures to help victims of human trafficking to legalise their stay and to find work. Although victims can take their claims to the civil courts, lawsuits tend to be lengthy and arduous for someone who cannot speak the language, is unfamiliar with the legal system, and does not have the money for a lawyer. In criminal proceedings, victims may be represented by an agent, such as a non-profit organisation.
- Under the National Strategy to Combat Human Trafficking in the Czech Republic 2016-2019, an analysis is being conducted of flaws in selected labour-law regulations that could pander to an exploitative working environment (Task 1 of the National Strategy).
- Focus, via labour inspection bodies, on unravelling the illegal employment of foreign nationals and running checks on temporary employment agencies and other entities acting as recruiters without the necessary permit.
Coordinator: Ministry of Labour and Social Affairs
- Evaluate the implementation of Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. The evaluation will include an analysis of the extra administrative burden and the ramifications for businesses.
Coordinator: Ministry of the Interior
Co-coordinator: Ministry of Labour and Social Affairs
Deadline: 31 December 2022
- Assess whether illegal employment is genuinely being earnestly prosecuted.
Coordinator: Ministry of Labour and Social Affairs
Deadline: Running, with a comprehensive assessment on 31 December 2022
- Make arrangements to raise foreign nationals’ awareness of their labour rights and obligations.
Coordinator: Ministry of Labour and Social Affairs
- Raise law enforcement agencies’ awareness of issues specific to human trafficking, with a stress on victim protection and the non-punishment principle (i.e. the impunity and protection of those who have been forced into criminal activity). Take this principle into account in the preparation of legislation that may touch on human trafficking and modern-day slavery.
Coordinators: Ministry of the Interior, Ministry of Justice
Statement by Minister for Business and Growth and Minister for Trade and Development Cooperation: [page 7]
The Danish Government is committed to ensuring that growth goes hand in hand with responsible conduct. The UN Guiding Principles’ step-by-step approach highlights the importance of continuous improvement of corporate respect for human rights allowing all companies to be on board regardless of their size or geographical location of their operations.
Introduction [page 9]
In 2012, the Danish Government started to take dedicated measures to implement the UNGPs on each of the pillars in the Protect, Respect and Remedy-framework based on recommendations from the Council for CSR. Some of these initiatives are part of the second National Action Plan for CSR; Responsible Growth 2012–2015, which the Government presented in March 2012. The CSR Action Plan focuses on business and human rights and was inspired by the recent international development in the field of CSR including the revision of the OECD Guidelines for Multinational Enterprises from May 2011, the ratification of the UNGPs in June 2011 and the renewed EU Strategy 2011–14 for Corporate Social Responsibility.(…)
Denmark has a long political tradition of supporting and addressing human rights. Changing governments have concentrated on special focus areas such as freedom of expression; freedom of religion; racism; indigenous peoples; children’s rights; the rights of persons with disabilities; human rights defenders; torture, and most recently, corporate social responsibility (CSR).
2. State Duty to Protect Human Rights
2.1 UNGPs and the State Duty to Protect [page 10]
The state can protect human rights by (not exhaustive):
– Enforcing laws (including law with extraterritorial implications) that enable rather than constrain businesses to respect human rights.
– Providing guidance and encourage businesses to respect human rights.
– Promoting the respect for human rights through its business relations, in bilateral and multilateral institutions and through development cooperation
2.3 Actions taken [page 11]
Protection of human rights through state regulation and policy:
In Denmark all new legislation is systematically evaluated in terms of human rights consequences by the Ministry of Justice. Denmark actively takes part in the Universal Period Review process of the United Nations as well as review by the UN Treaty Body Monitoring mechanisms with regard to obligations arising under the United Nations core human rights conventions, and by relevant ILO and Council of Europe bodies. These processes provide a platform for systematic consideration of the compliance of Danish law, policies and administration with international human rights law. Denmark duly takes account of findings and recommendations issued by such bodies.
Denmark is fully committed to human rights obligations – both nationally and internationally – and has signed and ratified many legal instruments, which belong to various organs, especially the United Nations, the European Union and the Council of Europe. For a complete list of the International Human Rights Treaties that Denmark has signed and ratified see: http://www1.umn.edu/humanrts/research/ratification-denmark.html.
Together with more than 40 countries Denmark adheres to the OECD Declaration on International Investment and Multinational Enterprises. The OECD Guidelines for Multinational Enterprises are the only multilaterally agreed and comprehensive code of responsible business conduct that governments have committed to promoting. The Guidelines are supported by a unique implementation mechanism of National Contact Points (NCPs), agencies established by adhering governments to promote and implement the Guidelines. Denmark is one of the only countries in the world, which has established the OECD National Contact Point by Danish law. The purpose is to ensure that the Danish NCP has a maximum of legitimacy and authority (for more information see section 4.3).
As stated in the strategy for Danish development cooperation: “The Right to a Better Life”, Denmark applies a rights-based approach to development. The human rights based approach entails that the goal of development cooperation should seek to realise human rights as well as poverty alleviation. Furthermore, political dialogue with partners and concrete development interventions should be guided by human rights standards and principles, focusing in particular on rights-holders and duty–bearers and their capacities to claim and fulfill obligations related to human rights. The “protect, respect and remedy framework” also provides the basis for Danida’s institutional private sector programmes aimed at enhancing the capacity and institutional environment for private sector development. One prime example of this approach is the new “Program for Responsible Business in Myanmar”, using both the state duty to protect and the company duty to protect as the key parameters in its programme design.
Denmark works to ensure that companies involved in Danish development cooperation respect human rights and act responsibly within the areas of worker’s rights, human rights, environment and anti-corruption within the framework of ILO conventions, UN Global Compact, the OECD guidelines for multinational enterprises and work towards implementation of the UN Guiding Principles on Business and Human Rights.
Companies involved in Danida Business Partnerships – an instrument that facilitates and provides economic support to develop commercial partnerships between Danish companies and partners from developing countries – are now required to integrate CSR strategically in their business operations and to demonstrate due diligence, including human rights, in order to mitigate adverse impact. The Danida Business Finance instrument engages both local buyers and Danish companies in the promotion of human rights and CSR activities through due diligence analysisand requirements to comply with fundamental principles of ILO when providing interest-free loans to public infrastructure projects in developing countries.
To further support the protection of human rights, the Danish Government has ensured that individuals have access to a non-juridical remediation mechanism in cases where Danish companies have had adverse impact on human rights (GP 27) (See the specific section on the implementation of access to non-judicial remedy, section 4.4)’
Appendix 1. Overview of the implementation of the state duty to protect
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 24]
- The National Action Plan for CSR from 2008 is the Government’s first official policy for promoting CSR among Danish companies. The national action plan encourages Danish businesses to continue to work actively with social responsibility, thus contributing to, for example, improving conditions in the countries in which they do business in and/or have established themselves in.
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles)
- In 2011 the Danish government published it second national action plan for CSR “Responsible Growth” 2012–2015. The national action plan contains several initiatives which translate the UNGPs into practice, among other:
- A reporting requirement on human rights and climate;
- A non-judicial grievance mechanism.
Government covering note on the UN Guiding Principles on Business and Human Rights National Action Plan
Legislative report [page 5]
A report on legislation pertaining to national and international business and human rights is to be drafted based on the principles stated in the UN Guiding Principles. The objective is to examine whether legislation corresponds with the aims of the UN principles and determine the necessity of initiatives taken to otherwise improve corporate operating practices, particularly where due diligence, corporate reporting obligations and remedies for victims of human rights violations are concerned. It is also to propose concrete recommendations for change, wherever necessary.
Introduction [page 11]
According to the Constitution, Finland participates in international cooperation for the protection of peace and human rights and for the development of society. As a member state of the UN and the EU, Finland is committed to promote a society that is open to everyone. The Finish social contract is based on interaction and on an aspiration to consensus. The desire to include everyone is also part of the open interaction. In Finland, there has been a desire to construct a society based on equality and gender. Equal treatment is taken into consideration in all the legislation and preparation of the national budget, various central government programmes and projects, and personnel policies. Based on these strengths, there is also a desire to create functional tools for the global promotion of human rights related to business activities.
1. The state obligation to protect human rights
1.1 Human rights in Finnish legislation [page 13]
Finland is strongly committed to the protection and promotion of human rights through national legislation and international cooperation. Our reinforced Constitution protects the inviolability of human dignity as well as the freedom and rights of individuals, and promotes justice in society. Fundamental rights (such as equality, freedom of movement, protection of privacy, freedom of association, freedom of speech and the right to social security and judicial protection) have been included in the Constitution.
Introduction [page 4]
Human rights are among the founding values of the French Republic. Promoting the highest standards in this field is a fundamental goal of its action at the national, European an international levels. As such, France adheres to the United Nations Guiding Principles on Business and Human Rights, which were unanimously adopted by the United Nations Human Rights Council in its resolution 17/4 of 16 June 2011. It is committed to implementing these principles, in particular by developing a groundbreaking corporate social responsibility (CSR) policy.
I. The State’s Obligation to Protect Human Rights [page 11]
France helps reinforce human rights and social and environmental standards at the national, European and international levels, offering constitutional, legislative and regulatory protections.
I. Introduction [page 3]
The legal system of the Federal Republic of Germany contains numerous instruments that are focused primarily on the protection of human rights. They are binding on all enterprises. Where the business operations of an enterprise have an international dimension, procedures for identifying any actual or potential adverse impact on the human rights of people affected by its business activity should be developed and implemented.
Objectives of the National Action Plan [page 4]
The Federal Government attaches great importance to worldwide protection and promotion of human rights. The European Commission, in its Communication of 2011 entitled “A renewed EU strategy 2011-14 for Corporate Social Responsibility”, called on all EU Member States to develop their own national action plans for the implementation of the UN Guiding Principles. The Federal Government, in the coalition agreement of 2013, committed itself to implementing the UN Guiding Principles in Germany. Through the present National Action Plan for Business and Human Rights (NAP), it wishes to contribute to improving the human rights situation worldwide and to giving globalisation a social dimension in accordance with the 2030 Agenda for Sustainable Development.
1.The State Duty to Protect [page 14]
The Federal Government takes particular account of the protection of human rights in the business context in the following circumstances:
(1) when it formulates basic rules governing its own economic policy,
(2) when it contracts with business entreprises,
(3) when it supports enterprises or accords them preferential treatment, and
(4) when enterprises are in state ownership.
1.1 Basic rule of economic policy
The Basic Law as well as the international and regional human rights conventions require the legislature, the administration and the judicature in Germany to respect, protect and guarantee human and fundamental rights. Accordingly, the statutory standard of human rights protection is very high, and this also applies in the realms of labour, social, commercial, company and civil law, which are of relevance in the present context. Germany has ratified most international human rights instruments without reservation and possesses, moreover, an independent national institution dedicated to human rights, the German Institute for Human Rights (DIMR). Among the core tasks of the DIMR are policy consultancy, research, the dissemination of information on human rights issues, education on human rights, and dialogue and cooperation with national and international organisations.
Foreword [page 5]
The Irish people have long valued and championed human rights and this is reflected in our foreign policy which reaffirms our commitment to the universality, indivisibility and interrelatedness of all human rights. We believe that everyone is entitled to enjoy them fully and this brings with it a responsibility to promote and protect the human rights of others. We all have a part to play and this extends beyond the institutions of state to other sectors of society…I am delighted to launch this National Plan on Business and Human Rights to give effect to the UN Guiding Principles. It demonstrates in a clear, tangible way this government’s commitment to promoting responsible business practice at home and overseas and was developed by my department in close cooperation with other government departments, state agencies, business enterprises and civil society organisations. I believe that the protection of human rights and the promotion of economic growth, trade and investment should be complementary and mutually reinforcing. We can put respect for human rights at the heart of all our business practices as we work towards meeting the sustainable development goals set out in Agenda 2030 at national, regional and global levels.
Introduction [page 7]
The promotion and protection of human rights is a cornerstone of Ireland’s foreign policy and we have a long and proud track record of effective engagement on human rights issues, both through our membership of international organisations and in our bilateral relations with other countries. While primary responsibility will always rest with state institutions, it is increasingly accepted that business enterprises are also key actors when it comes to safeguarding the human rights of individuals.
I. Statement of Commitment [page 5]
….The present Plan is meant to be an instrument of the commitments and efforts of the Government for the adoption of political and legislative measures at national, regional and international level in order to ensure the respect of human rights within economic activities.
Italy is therefore committed to promote and carry out key-actions to provide that, within the domestic legislative, institutional and operational framework regulating economic activities, human rights are conceived as a priority so that the eventual adverse impact of business on these rights is properly addressed.
This approach, in line with Italy’s important actions in this sense, will reflect also in Italy’s external action, by encouraging and favouring the adoption of adequate measures to foster respect of human rights in business activities at regional and international level.
To protect human rights, Italy undertakes to:
– Continue to protect, promote universal respect for, and observance of, all human rights, fundamental freedoms and non-discrimination principles, with special attention to the rights of most vulnerable groups, such as women, children, disabled, LGBTI people, migrants and asylum seekers, and persons belonging to ethnic and religious minorities;
– Coordinate the implementation of the present NAP with the 17 Goals of the UN Agenda 2030 for Sustainable Development and engage for a stronger national adherence to human rights and sustainable development in its three dimension – economic, social and environmental – in line with the Sustainable Development Goals (especially SDG number 5,8,10,16,17);
– Reinforce, cooperate with and develop industrial relations between social partners and multi-stakeholders initiatives to achieve better implementation of human rights in the conduction of economic activities, in specific business sectors and along the entire supply chain;
– Encourage companies, also in view of the updating of the National Strategy for Sustainable Development, in line with the commitments undertaken with the Agenda 2030 and the role that the private sector will be called to play in its implementation, to voluntarily commit themselves at national, regional and international level to prevent and redress potential human rights adverse impacts; and to realise the goal of a decent work for all, as set out in SDG 8 (decent work and economic growth); and to enhance the use of indicators of quality, sustainable development, equality and gender.
IV. Government Responses:
Current Activities and Future Commitments [page 10]
A. Foundational Principles
Guiding Principle 1
(…) Italy is fully committed to the protection and promotion of human rights. The Italian Constitution, within the framework of the basic principles of human dignity, equality and solidarity, sets forth several provisions ensuring the right to individual freedom, the right to equal treatment, the right to freedom of conscience and worship, as well as the right to freedom of expression and association, the right to a fair trial, the right to health.
The national legislative and institutional framework is in compliance with the obligations and engagements undertaken within the systems of the United Nations, the European Union, the Council of Europe and the OECD. Italy acknowledges all internationally recognized human rights, as enshrined in the core international and regional documents such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights and the EU Charter of Fundamental Rights; Italy also signed the International Labour Organisation Declaration on Fundamental Principles and Rights at Work and related ILO conventions, and the OECD Declaration on International Investment and Multinational Enterprises. Recently, the Government has ratified the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (2015) as well as the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (2013).
Italy, in line with its undertakings at International level, recognizes the need of further improvements and commits to fill the legislative gaps still existing with refer to specific human rights protection mechanisms and instruments. To this purpose, the Government will:
- Expedite, in agreement with the Parliament, the process of establishment of an independent National Human Rights Institution in adherence with the 1993 Paris Principles and the approval of the draft law introducing the crime of torture in the Penal Code, in line with the 1984 UN Convention on the prohibition of Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment;
- Conduct a comprehensive overview and monitoring of the implementation in the domestic legal framework of legally binding international and regional human rights instruments and soft law standards, with particular focus on human rights and business;
- Effectively implement the Recommendations received and accepted under the Universal Periodic Review;
- Promote the adoption (or improvement of the existing ones) of fair and ethical labour recruitment procedures by business, both at national and international level, and improve the implementation of regulations on the role of intermediaries and of the provisions of incentives for regular work contracts and agreements;
- Strengthen mutual cooperation and support to trade union organizations, human rights defenders, non-governmental organizations and civil society, in consideration of their essential role in the promotion and protection of human rights;
- Promote awareness raising and information campaigns on the topic of the relationship between economic activities and human rights, through educational programmes and activities for the youth; in particular, in line with the recently enacted School Reform, education and training programmes on these issues will represent a structural component of all the initiatives of the “School-Work Alternation Project” and will be agreed with Ministry of Education, school staff representatives and students;
- Encourage the growth of a human rights culture through the promotion of art exhibitions and films retrospectives on human rights issues and support cultural initiatives focused on awareness raising on legality, such as the ‘Museo delle Regole’ in Naples;
- With regard to the process of internationalisation of Italian enterprises and with the aim of encouraging virtuous behaviour of enterprises the Government is also committed to make support and incentive mechanisms coherent with the objectives of the present Plan, in cooperation with Confindustria, Unioncamere e the network of the Italian bilateral Chambers of Commerce abroad.
II. Objectives and Measures
Objective 1: ensuring State’s duty to protect, defend and respect human rights [page 1]
Protection of human rights, ensuring equal employment, social and other opportunities, gender equality, reducing gender pay gap – these are fundamental values to be pursued in labour relations and regulation of corporate activities. The Government has the obligation to ensure the above-mentioned human rights in these areas. Government’s actions and measures include legislative instruments aimed at the development of a legislative framework providing for responsible business practices and elimination of corruption in the public sector. Great attention is paid to non-discrimination measures, including education on human rights, various studies and other measures that promote non-discrimination and respect for human rights. The Government also supports specific initiatives for promotion of gender equality, encourages the development of non-governmental organizations and provides financial assistance for initiatives of non governmental organisations in this field.
Current policy [page 9]
The Netherlands already pursues an active policy to promote respect for human rights by the business community and to prevent companies from abusing human rights either directly or in their supply chains.
Introduction [page 8]
Norway already has sound legislation for safeguarding human rights. In many fields processes have already been started and changes made that are relevant to UN and OECD instruments, for example the Government’s state ownership policy, corporate governance of the Government Pension Fund Global and a number of measures implemented by diplomatic and consular missions. The action plan describes what has been done in relevant areas as well as new measures. The UN Guiding Principles emphasise that states have an obligation under international law to protect against human rights abuses by third parties, including business enterprises. The Government attaches importance to the state’s role as legislator, adviser and facilitator. This action plan is intended to ensure coherent practice throughout the public administration.
Pillar I. The State’s duty to protect human rights [page 8]
The state’s duty to protect human rights is enshrined in the Constitution of the Republic of Poland and in ratified international agreements that obligate States Parties to respect, protect, and implement the human rights of individuals within their territory and/or jurisdiction. This includes the duty to protect against human rights abuse by third parties, including business enterprises.
The Constitution of the Republic of Poland contains a number of principles relevant to the protection of human rights in the context of business activity. Poland’s economic system is based on, among other things, solidarity, dialogue, and cooperation among social partners (Article 20), and limitations on the freedom of economic activity may be imposed only in exceptional cases (Article 22).
The Constitution introduces the principle of equality before the law and the total prohibition of discrimination for any reason, including in economic life (Article 32). Chapter II of the Constitution contains a broad catalogue of economic, social, and cultural rights and freedoms (Articles 64-76). At the statutory level, the provisions of labour law guarantee the observance of labour standards and rights arising from Poland’s international obligations, in particular from the UN International Covenant on Economic, Social and Cultural Rights and the European Social Charter, as well as those contained in the ILO’s fundamental conventions in line with the ILO Declaration on Fundamental Principles and Rights at Work.
The fulfilment of the basic principles of labour law is possible on the basis of numerous provisions of the Labour Code (LC) and other acts specifying in detail the rights of employees and employers, outlining the ways they can be used, and implementing ILO conventions ratified by Poland.
The standards set forth in the international agreements are reflected in Chapter II of the Labour Code, which contains the basic principles of labour law. The following deserve a mention here: the right to work (Article 10), the principle of discretion when establishing an employment relationship (Article 11), respect for personal rights (Article 111 ), the principle of equality of employees (Article112 ), the prohibition against discrimination in employment (Article 113 ), the right to respectful remuneration (Article 13), the right to rest (Article 14), the principle of ensuring healthy and safe working conditions by the employer (Article 15), satisfaction, as far as possible, by the employer of the welfare, social and cultural needs of employees (Article 16), helping employees improve their professional qualifications (Article 17), and ensuring the protection of employees’ rights by prohibiting the introduction of collective bargaining agreements, regulations, and employment contracts that are less favourable to employees than those resulting from the provisions of general law (Article 18). The principles of labour law also include collective rights, namely the freedom of association of employees and employers (Article 181 ) and the right of employees to participate in the management of the work establishment (Article 18). These provisions do not themselves constitute grounds for employee claims.
Pillar II. The corporate responsibility to respect human rights
7. Social entrepreneurship as an instrument for creating high-quality jobs for individuals at risk of poverty and social exclusion [page 33]
When considering a responsible approach to doing business and respect for human rights, also by entrepreneurs, it is impossible not to mention the specific form of economic activity known as social entrepreneurship. Social entrepreneurship plays a very important role in the process of social and occupational reintegration of people from different groups who, for various reasons, find themselves in particularly difficult living and working conditions, e.g., the long-term unemployed, the homeless, former prisoners, addicts, and people with disabilities. These people can return to professional life and full participation in the life of their local community in particular through work and the ability to co-decide about the future of the enterprise they are involved with, but also through other types of activities that are firmly rooted in the local community.
The social economy in Poland, which is a systemic basis for social entrepreneurship, has been intensively developed since 2008. It led to the establishment of the Unit for Systemic Solutions in the Social Economy (Order No 141 of the Prime Minister of 15 December 2008), chaired by the Minister of Labour and Social Policy. The result of several years of the Unit’s work was, among other things, the drafting of the National Programme for the Development of the Social Economy (KPRES), which was adopted by the Council of Ministers on 12 August 2014.
The KPRES identified the key directions of public intervention aimed at shaping the best conditions for developing the social economy and social enterprises in Poland. KPRES goals, measures, and expected results were formulated on the basis of a diagnosis of the social-economy sector, taking into account the current political, social, and economic context in Poland and in the European Union. The accepted assumptions, structure, and content make the KPRES a document open to phenomena and processes that may occur in the short and long term, potentially influencing the development of the social economy.
Between 2007 and 2013, European Social Fund (ESF) resources were invested in three types of actions for the development of the social-economy sector, which, apart from the social-entrepreneurship sector, also includes its environment:
- Systemic measures that, e.g., support the process of developing programmatic objectives for the development of the social-economy sector at the national (KPRES) and regional (multi-annual regional plans or programmes for the development of the social-economy sector) levels;
- Measures to support the social-enterprise environment. In this area, investments focused on:
– the establishment of a network of social-economy support centres, i.e., organisations that provide services for the entire social-economy sector (services supporting the emergence of new social enterprises, but also services helping establish a market for existing entities) and ensuring the quality of services offered by these entities;
– the establishment of return financing instruments for social enterprises that help social enterprises use development loans;
- Measures directly supporting social enterprises, including donation-type, advisory, and training support for the establishment of social co-operatives, as the only legally regulated form of social enterprises.
In the period 2014-2020, ESF investments focused more on new job creation in social enterprises. Social Economy Support Centres (OWES) award donations for this purpose, coming from the ESF under regional operational programmes. Bridge support is also provided. In accordance with the KPRES, OWESs also render the following social-economy support services:
– activation and promotion of the social economy;
– support for emerging new social-economy entities;
– support for existing social enterprises.
The OWES accreditation process is also being financed to confirm these entities’ ability to provide high-quality support services in the social economy. Only the centres accredited by the minister responsible for social security can apply for funding under calls for proposals.
What is essential is that, in the period 2014-2020, it is possible to create jobs not only in social co-operatives but also in other entities that fall under the definition of a social enterprise adopted for the implementation of the ESF at the level of the regulations of the Ministry of Economic Development on the basis of the National Programme for the Development of the Social Economy. The lack of a legal definition of a social enterprise is creating a growing barrier to the implementation of ESF funds for the development of social entrepreneurship and the creation of new jobs in existing social enterprises. The introduction of a legal definition of a social enterprise would facilitate the process of restoring employment to people at risk of marginalisation.
Instruments financed by the ESF are also targeted at job creation and unemployment benefits. In 2014-2020, other instruments will also be available in addition to loans. First, re-guarantees will be launched. In addition, work is being carried out on the kick-off of a guarantee system and new innovative financial instruments, as well as innovative ways of financing the sector, such as social bonds.”
Appendix 1 provides a list of International non-binding mechanisms and international legal framework in force in Poland in relation to business and human rights [page 55]
I. Commitment to Implement the UN Guiding Principles on Business and Human Rights [page 3]
The protection and promotion of human rights are a priority for Spain, which reflects a clear requirement of Spanish society. Our country has assumed very broad commitments in this area in the international sphere. These have been reflected internally in the legislative, institutional, and public policy framework.
III. Areas of Actions and Measures
Pillar I. The State Duty to Protect Human Rights
Foundational Principles [page 9]
Guiding Principle 1
The international obligations assumed by Spain demand that it respect and protect human rights. This includes the duty to protect against human rights violations or abuses committed by third parties, including business. Through this Plan, the commitment of Spain to protect human rights is reaffirmed, and to provide potential victims with an effective remedy. The State duty to protect refers to the obligations defined in the treaties it has ratified. Spain is party to all of the main treaties on human rights and, specifically, to the following:
-The International Covenant on Civil and Political Rights, and its Optional Protocol;
– Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
– the International Convention on the Elimination of All Forms of Racial Discrimination – the International Convention on the Elimination of All Forms of Discrimination against Women;
– the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol;
– the Convention on the Rights of the Child and its three Optional Protocols;
– Convention on the Rights of Persons with Disabilities;
– the International Convention for the Protection of All Persons against Enforced Disappearances. In addition to the aforementioned treaties, Spain has accepted the competence of the corresponding treaty bodies to hear individual complaints for alleged violation of the recognized rights directed against Spain.
Spain has also ratified the eight fundamental Conventions of the International Labor Organization (ILO):
– Forced Labour Convention (No 29) – Freedom of Association and Protection of the Right to Organise Conventions (No 87)
– Right to Organise and Collective Bargaining Convention (No 98)
– Equal Remuneration Convention (No 100)
– Abolition of Forced Labour Convention (No 105)
– Discrimination (Employment and Occupation) Convention (No 111)
– Minimun age Convention (No 138)
– Worst Forms of Child Labour Convention. (No 182)
In addition, it should be noted that Spain is a party to ILO Convention No. 169 on Indigenous Peoples.
As regards the European sphere, Spain has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Within the EU, it is worth recalling the Charter of Fundamental Rights of the EU, incorporated into the Treaties and with the same legal obligation as these since the entry into force of the Treaty of Lisbon (December 2009), under the Article 6.1 of the Treaty of the European Union. International legally binding human rights instruments are complemented by “soft law” instruments with which Spain has also expressed its commitment, such as the Tripartite Declaration of Principles on Multinational Enterprises and the Social Policy of the ILO, the Declaration related to the Principles and Fundamental Rights on Labor of the ILO, and the OECD Guidelines for Multinational Enterprises.
1.The State Duty to protect
The State’s role in protecting human rights [page 9]
The Government’s goal is to ensure full respect for human rights in Sweden. This means that human rights, as expressed through Sweden’s international commitments, must not be violated. The Swedish legal system must be in conformity with the international conventions on human rights that Sweden has acceded to, and the convention commitments must be taken into account when applying Swedish law throughout the public administration, in central government, municipalities and county councils.
Sweden has a long tradition of local self-governance, meaning that municipalities and county councils are free to make their own decisions within the frameworks established by the Riksdag and the Government. Municipalities and county councils are responsible for areas including health and medical care, social welfare issues, compulsory and upper secondary school, pre-school and elderly care. Consequently, alongside central government, municipalities and county councils play an important role in protecting and promoting human rights in Sweden. (…)
Sweden has acceded to several of the international organisations’ conventions on human rights, including UN, Council of Europe and International Labour Organisation conventions. Sweden is therefore obliged to report, at regular intervals, on its implementation of the provisions of the conventions. Sweden has been reviewed by the UN Human Rights Council’s Universal Periodic Review mechanism on two occasions (2010 and 2015).”
Annex: Measures planned [page 27]
- The Government has launched an inquiry to examine whether the United Nations Convention on the Rights of the Child should be incorporated into Swedish law.
- The Government will conduct a baseline study of how Swedish legislation compares with the Guiding Principles to determine whether there are any immediate or obvious gaps that need to be addressed.
Introduction [page 4]
Switzerland is committed to protecting human rights. With this NAP implementing the UNGP, it is contributing towards the respect for human rights by business enterprises also when they operate outside of Switzerland. The report takes stock of current measures and sets out future action to protect human rights in connection with business activities, and to guarantee access to justice for victims of human rights abuses, thereby making it easier to seek remediation.
4. Position of the Federal Council on the UN Guiding Principles on Business and Human Rights
4.2 The Swiss context [page 6]
Economic freedom (Art. 27 Federal Constitution) and freedom of contract are key elements of the Swiss economic order. This economic system is set out in the Constitution and enhanced by elements such as further basic rights and social components (freedom of association and social partnership). Sound frameworks are therefore in place to permit the implementation of labour and human rights in Switzerland. Social partnership and the right to collective bargaining, specifically, are fundamental mechanisms ensuring that the country has good working conditions and a peaceful society. (…)
Article 54 para. 2 of the Federal Constitution (FC) stipulates that the Confederation will engage in foreign relations to promote respect for human rights, in addition to other objectives. Article 35 FC stipulates, among other provisions, that fundamental rights must be upheld throughout the legal system. This covers private, criminal and commercial law. Under Article 35 para. 3 FC, the authorities must ensure that, where appropriate, fundamental rights also apply to relationships between private individuals, and thus also in the private sector. Article 35 para. 3 FC is therefore relevant to international business enterprises that are connected to the Swiss legal system in some way, for example because they have their head office in Switzerland, make use of Swiss Export Risk Insurance services, or fulfil contracts abroad on behalf of the Swiss authorities. However, at present Swiss legislation does not make any provision for business enterprises having to conduct general, legally binding human rights due diligence. The Federal Council nonetheless supports due diligence on a voluntary basis (cf. PI1)”
5. National Action Plan on Business and Human Rights
5.3 Role of the State and of business enterprises [page 10]
With this NAP, the Federal Council recognises the State’s duty to also protect human rights in connection with business enterprises that are based and/or operate in Switzerland, as laid down in the UNGP. The State duty to protect is described in Guiding Principles 1-10, 25-28, 30 and 31. Primary responsibility for protecting human rights lies with the State, not with the corporate sector. The federal government understands its role as being to support business enterprises with the implementation of the UNGP, to create incentives to comply with them, to encourage business enterprises to respect human rights and, where laws exist, to enforce them. The State can employ both binding and non-binding instruments to fulfil its duty to protect. In particular, it can also support and encourage corporate initiatives. The Federal Council views promoting due diligence as a horizontal element of its efforts to implement the UNGP.
5.4 Smart mix as the conceptual foundation
In view of the economic freedom that is guaranteed by the Swiss Federal Constitution26, the federal government fulfils its duty to protect with a smart mix of non-legally-binding and – where necessary – supplementary statutory requirements, with national and international measures. All of these observe the principle of proportionality27. The approach is based on the internationally recognised understanding of the concept of a smart mix28. In other words, the smart mix approach means that States consider a bundle of mutually supportive binding and non-binding measures which influence the human rights consequences of economic activity. The UNGP do not require States to institute regulations outside of their own jurisdictions, but instead give them the discretion to implement their own smart mix in practice.
All in all, the measures instituted by the federal government should guarantee effective protection against abuses of human rights by business enterprises based and/or operating in Switzerland, while keeping the burden on those companies as light as possible.
5 National Action Plan on Business and Human Rights
5.7 Pillar 1: state duty to protect
5.7.1 Fundamental principles
Guiding Principle 1: general duty to protect [page 12]
The Federal Council acknowledges its duty to protect, as laid down in Guiding Principle 1. To fulfil this duty, the federal government will implement a smart mix of appropriate measures.
The duty to protect is based on Switzerland’s existing obligations under international law. The UNGP do not subject the State to any new duties. Rather, they provide more specific detail about how the existing duty to protect human rights applies to the business sector. Of key importance to the UNGP are the UN’s international conventions on human rights32, the fundamental conventions of the ILO, and the relevant provisions of the European Convention on Human Rights.
The UK 2013 NAP
The UK 2013 NAP does not contain a reference to GP1.
The UK 2016 updated NAP
2. The State’s Duty to Protect Human Rights [page 6]
11.The UK is subject to international human rights obligations under customary international law and as a result of the international legal instruments we have signed and ratified. Human rights obligations generally apply only within a State’s territory and/or jurisdiction. Accordingly, there is no general requirement for States to regulate the extraterritorial activities of business enterprises domiciled in their jurisdiction, although there are limited exceptions to this, for instance under treaty regimes. The UK may also choose as a matter of policy in certain instances to regulate the overseas conduct of British businesses.
The National Action Plan
Leading by example [page 7]
The U.S. government advocates for strong RBC policies and practices around the world and recognises the importance of leading by example, implementing this philosophy by continuing to review and improve its own efforts and by learning from others. The U.S. government remains committed to working with governments to raise global standards for RBC, including on labor rights, human rights, and anti-corruption, and to lead a race to the top. Promoting RBC benefits companies from all countries that fight corruption, combat human trafficking, promote labor and human rights, and adhere to high standards. Through leadership on these issues in various international organisations, including the UN and OECD, the U.S. government will continue to advocate for effective implementation of relevant international provisions in order to advance RBC.