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Guiding Principle 23

In all contexts, business enterprises should:

(a) Comply with all applicable laws and respect internationally recognized human rights, wherever they operate;

(b) Seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements;

(c) Treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate.

Commentary

Although particular country and local contexts may affect the human rights risks of an enterprise’s activities and business relationships, all business enterprises have the same responsibility to respect human rights wherever they operate. Where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances, and to be able to demonstrate their efforts in this regard.

Some operating environments, such as conflict-affected areas, may increase the risks of enterprises being complicit in gross human rights abuses committed by other actors (security forces, for example). Business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of the provisions of the Rome Statute of the International Criminal Court in jurisdictions that provide for corporate criminal responsibility. In addition, corporate directors, officers and employees may be subject to individual liability for acts that amount to gross human rights abuses.

In complex contexts such as these, business enterprises should ensure that they do not exacerbate the situation. In assessing how best to respond, they will often be well advised to draw on not only expertise and cross-functional consultation within the enterprise, but also to consult externally with credible, independent experts, including from Governments, civil society, national human rights institutions and relevant multi-stakeholder initiatives.

What National Action Plans say on Guiding Principle 23

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In the introduction “International context relating to business and human rights” p.5 the Nap explains that the Directive 2014/95/EU concerning larger companies’ publication of non-financial information and information on diversity provides that these companies also report on aspects related to human rights.

Action point 24, Accorder une attention particulière à la question des droits de l’enfant dans la sensibilisation des entreprises [Pay special attention to the issue of children’s rights in awareness raising of enterprises], states that child labour is one of the most important human rights issues for companies to address. The NAP will engage through several parallel measures:

Systematic reference in international fora and bilaterally to concerned States on the ratification of Conventions Nos. 138 (on minimum age) and 182 (on the worst forms of child labor) of the ILO.
Active support and awareness raising of companies on the principles governing enterprises in the field of children’s rights, in order to allow Belgian companies to maximize the positive effects of their activities on the lives of children by supporting and respecting their rights and those of their parents or guardians, including the right to a decent wage.
Continued support to UNICEF activities, including the publication of the reading guide for the Committee on the Rights of the Child’s Observation No. 16 and the creation of a platform for businesses that wish to commit to the basis of the Principles governing businesses in the field of children’s rights.
Emphasis on children’s rights in awareness building throughout the network of Belgian diplomacy, particularly through active distribution of the Principles governing businesses in the area of children’s rights in the Toolbox set out in Action Point 1.

Action point 27, Sensibiliser les entreprises belges à la problématique de la corruption et renforcement des engagements belges sur cette thématique [Educate Belgian companies on the problem of corruption and strengthen Belgian commitments on this theme] is the main action point covering corruption. As Belgium has ratified all related anti-corruption conventions, several of the planned actions will involve awareness-raising of Belgian companies about the issue, such as:

Awareness-raising of Belgian companies on the problem of corruption (Brochure of the Belgian Federal Authorities (NCP, Ministry of Economy and Ministry of Justice) with the Confederation of Belgian Enterprises and the International Chamber of Commerce on the prevention of corruption in companies, the Ministry of Justice: capacity training of investigation and judicial authorities in the field of corruption).
Awareness-raising of Belgian companies abroad to the risk of corruption through the network of Belgian diplomacy through instruction emails sent out to the diplomatic posts in order for the 1999 OECD Convention and the Guide to best practice to reach Belgian companies that are active within their jurisdiction.

Action point 33, Importation, exportation et transit d’armes, de munitions, de matériel militaire et de maintien de l’ordre et de biens à double usage [Import, export and transit of arms, ammunition, military and law enforcement equipment and dual-use goods], 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.”

Action point 8, Encourager les accords-cadres internationaux [Encourage international framework agreements] states “ in the course of 2017, the Federal Public Service of Employment, Labor and Social Dialogue will organize a seminar on international framework agreements to assess the issues and scope of these transnational collective negotiations. This seminar will be an opportunity to take stock of these framework agreements and their regulatory role alongside the law; of the observed trends; and the effectiveness of these instruments for enterprises and employees of multinationals companies.”

This seminar will also broaden the debate on the progress made following the conclusion between the trade unions and companies on the Accord on Fire and Building Safety in Bangladesh.

The Accord is generally recognized as innovative and promising. Among the presence of experts, the seminar will also enable the identification of effective means to encourage Belgian companies active in the apparel sector to sign the Accord.

3.5 Compliance with legislation [page 36]

The 23rd principle concerns compliance with legislation. In some geographical areas, such as conflict-affected areas, a company may unintentionally enter into a business relationship with an enterprise, such as a security company, that is guilty of gross human rights abuses. In such a situation the Norwegian company should be aware that this may have legal consequences such as liability. The Norwegian Penal Code of 2005, which entered into force on 1 October 2015, also applies to certain punishable offences committed on behalf of an enterprise registered in Norway when the offence is also punishable under the law of the country where it has been committed.

Norwegian companies that are faced with demands from the authorities in the host country that appear to be in conflict with international guidelines are encouraged to contact either the nearest Norwegian mission or the Ministry of Foreign Affairs. Examples of such situations are a demand for a bribe or a request to keep certain information secret.