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Guiding Principle 5

States should exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights.

Commentary

States do not relinquish their international human rights law obligations when they privatize the delivery of services that may impact upon the enjoyment of human rights. Failure by States to ensure that business enterprises performing such services operate in a manner consistent with the State’s human rights obligations may entail both reputational and legal consequences for the State itself. As a necessary step, the relevant service contracts or enabling legislation should clarify the State’s expectations that these enterprises respect human rights. States should ensure that they can effectively oversee the enterprises’ activities, including through the provision of adequate independent monitoring and accountability mechanisms.

What National Action Plans say on Guiding Principle 5

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PLANNED ACTIONS:

The principle is mainly covered in one action point, Action point 13 on public procurement.

Action point 13, Renforcer et contrôler le respect des droits de l’Homme dans les marchés publics [Strengthen and monitor the respect for human rights in public procurement], covers specific plans for the federal governments as well as all three Belgian regions.

The federal government engagements include:
An examination by the Working Group on Sustainable Public Procurement of the Interdepartmental Commission for Sustainable Development on how to strengthen and optimize the integration of respect for human rights into the purchasing policy of the public authorities. This will include stakeholder consultations.
The transposition of the EU public procurement directives (Directives 2014/24/EU and 2014/25/EU). Monitoring activities will pay particular attention to the application of award criteria, in particular to the application of price as the sole award criterion.
The government will analyze the best way to verify and monitor compliance with the criteria set out in the procurement procedure for products and services in several sensitive sectors, some of which are produced in so-called “risk” countries, in order to ensure that the requirements relating to respect for human rights set out in the specifications have been complied with. Existing best practice in European countries will be used as sources of inspiration.
The Working Group on Sustainable Public Procurement analyzed various case studies on monitoring compliance with ILO clauses and human rights in supply chains in order to test, through pilot projects, whether such an initiative is feasible in Belgium. Implementation and follow-up of this initiative will be carried out in cooperation with the relevant federal, regional and local administrations.
The Wallonia engagements include:
As participant of the Working Group on Sustainable Public Procurement the public service of Wallonia will also be part of above-mentioned research with the aim of identifying optimization processes for the integration of human rights in public procurement policy.
Moreover, the Wallonia and Bruxelles regions have established a portal for public procurement in 2009. A series of tools have been developed and/or gathered into the portal to favour the inclusion of environmental, social and ethical criteria in public procurement.
In 2013, the government of Wallonia decided to set up a purchasing policy on
sustainable public procurement, in which Wallonian contracting entities are invited to register for their purchases of supplies, services and works.
Reflections and workshops are conducted to strengthen the environmental, social and ethical clauses in public procurement relating to certain product categories. This includes human rights.
By the end of 2016 the public procurement plan will be renewed for the period 2017-2019 and will include several actions to make purchases more sustainable in Wallonia.
Additionnally, Wallonia will organize a competition to promoting public procurement contracts that incorporate ambitious environmental, social and/or ethical criteria, rewarding public purchasers and companies that have concluded such contracts.
The government of Bruxelles’ engagements include:
In 2014, the region adopted an order on the inclusion of environmental and ethical clauses in public procurement by regional and local authorities. The aim of including such ethical clauses is the respect for the fundamental rights of persons or social impartiality. Within each contracting authority there shall also be appointed at least one contact person responsible for ensuring the implementation of this order; the implementation of which shall be assessed every 3 years.
The Flemish engagements include:
In 2016, the 2016-2020 Plan on Flemish Public Procurement was approved, a plan that emphasizes innovation, sustainability, reduction of human rights violations in supply chains, professionalization and access of SMEs.
Pilot projects (related to plan mentined above) in this context the political fields of “Employment and Social Economy” and “Chancellery and Public Governance” will, together with the buyers of the various contracting authorities, monitor the credibility of the supporting documents (concerning the respect for human rights, etc.) and the respect for ILO core Conventions. This is necessary in order to verify that the human rights criteria included in the conditions are also effectively complied with. In this respect, the Flemish Authority will concentrate primarily on the procurement of textile products.

Support buyers in the integration of social criteria in public procurement contracts. It especially includes diversity, accessibility, and the inclusion of people from vulnerable groups. The pilot project aims at giving a practical benchmark instrument to buyers, which can be used systematically in each part of the public contract.

II. The State as an economic actor

Including human rights in the State’s business activity [page 13]

To this end:

2.4 The Ministry of Commerce, Industry and Tourism and its entities will determine the requirements regarding sustainability and respect for human rights as the criteria to select the enterprises to participate in their business activity encouragement programs, including the SME and micro SME3.

Pillar I. state duty to protect

Protection of social service clients [pages 15-16]

Implements Principle 5

States often delegate the performance of some of their tasks to private entities, though this does not relieve them of their human rights commitments. In fact, they must find ways of meeting their human rights duties even in these circumstances.

There are many situations where the roles of the state are transferred to a private entity. In order to protect human rights, increased attention needs to be paid, for example, to the social services sector. Clients in receipt of residence-based social services are particularly vulnerable and in many respects are dependent on the support and care provided within the scope of social services. The state should make sure that checks on respect for human rights are run especially for these types of social services. The same conclusion has been reached, for instance, by the Ombudsman in her reports on visits to retirement homes and other facilities.

Current state of play:

The state runs checks on social service providers upon registration and during the provision of services. Control mechanisms also centre on checking respect for the human rights of social service clients.
The law has yet to properly address and penalise the “illegal” unregistered provision of social services. Legislative instruments are being phased in that will make it possible to put a stop to the provision of such services. In August 2016, an amendment to the Social Services Act took effect that established the possibility of carrying out checks on natural and legal persons who have not been issued with a registration decision if there are grounds to suspect that those persons are providing social services without authorisation. The penalty for providing such services was also increased from CZK 1 million to CZK 2 million.
An amendment has been proposed that will require delegated municipal authorities/military district authorities to actively seek out illegal social service providers and immediately report their suspicions that such illegal services are being provided in their territory to the competent municipal authority of a municipality with extended powers and to the regional authority.

Tasks:

Issue implementing legislation to establish staffing, material and technical standards forming a basis, in particular, for the registration of social services.

Coordinator: Ministry of Labour and Social Affairs

Deadline: The material and technical conditions of residence-based social services by 31 December 2018; the staffing conditions of social services by 31 December 2020

Increase the methodological support for inspections of social service provision.

Coordinator: Ministry of Labour and Social Affairs

Deadline: Running

Deliver a more precise legislative definition of penalties in situations where the rights of social service clients are infringed.

Coordinator: Ministry of Labour and Social Affairs

Deadline: 31 December 2020

Increase staffing levels at the registering body and increase the numbers of checks carried out.

Coordinator: Ministry of Labour and Social Affairs

Deadline: Running

Trade in military equipment [pages 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 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 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.

Tasks:

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

Deadline: Running

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

Deadline: Running

2. State Duty to Protect

2.4. Planned Actions

Increasing the use of labour and social clauses in public contracts [page 16]
Part of the foundation of the Danish labour market model is that work performed in Denmark must be performed on Danish pay and working conditions. In this, the authorities hold an important role in ensuring that underpaid foreign labour does not occur in public projects. The Government wants to ensure fair and reasonable pay and working conditions in accordance with ILO Convention 94 by increasing the use and better enforcement of labour clauses in public contracts (GP 5).

The following initiatives are planned:

The current labour clause threshold value of approximately DKK 37.5 million for public construction projects included by the labour clause requirement will be abolished. In the future, governmental contracting authorities (including companies that are fully owned by governmental authorities and not in competition) must use labour clauses in all public tender calls for construction projects.
Furthermore, it has been agreed that Danish municipalities and regions in the future will use labour clauses to a further extent in the same manner as governmental contractors.
Finally, more and better information on the use of labour clauses will soon be available in written form and on the internet.

The Government also wants to increase the voluntary use of social clauses in connection with public tenders. Many public authorities already use or are considering using social clauses. To assist with this work, a number of cases will be prepared to demonstrate how companies and municipalities work with social clauses in practice (GP 5).

Appendix 1. Overview of the implementation of the state duty to protect

Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 29]

The new non-judicial remedy mechanism (see GP 27) can examine complaints involving public authorities. This means that public authorities have the same responsibilities as private companies towards sub-suppliers which they are directly linked to, e.g. by a contract.
Increasing the use of labour and social clauses causes: Part of the foundation of the Danish labour market model is that work performed in Denmark must be performed on Danish pay and working conditions. In this, the authorities hold an important role in ensuring that underpaid foreign labour does not occur in public projects. The Government wants to ensure fair pay and working conditions according to ILO Convention 94 by increasing the use and better enforcement of labour clauses in public contracts (GP 5). The following initiatives are planned:
- The current labour clause threshold value of approximately DKK 37.5 million for public construction projects included by the labour clause requirement will be abolished. In the future, governmental contracting authorities (includeing companies that are fully owned by governmental authorities and not in competition) must use labour clauses in all public tender calls for construction projects.
- Furthermore, it has been agreed that Danish municipalities and regions in the future will use labour clauses to a further extent in the same manner as governmental contractors.
- Finally, more and better information on the use of labour clauses will soon be available in written form and on the internet.

The Government also wants to increase the voluntary use of social clauses in connection with public tenders. Many public authorities already use or are considering using social clauses. To assist this work, a number of cases will be prepared to demonstrate how companies and municipalities work with social clauses in practice.

IV. Government responses

Current Activities and Future Commitments [page 21]

B. Operational Principles

The State-business nexus

Guiding Principle 5

Italy is committed to ensure that business enterprises that:… ii) receive support, benefit from services from Government agencies…, operate in full compliance with human rights enshrined in domestic legislation, international regulations and standards, and soft law instruments.

Planned Measures [page 22]

To achieve the goals set in Principles…5…, and within the overall framework of the implementation of EU directives, the Italian Government will conduct the following activities to be jointly developed and monitored by CIDU and A.N.AC:

Elaborate within the CIDU the concept of a ‘human rights clause’ to be included as a requirement for competing enterprises in all public model tenders and agreements with business enterprises for the purchase of goods and provision of services, with particular focus on i) enterprises operating abroad; ii) enterprises availing themselves of foreign suppliers; iii) foreign enterprises.

2. The State duty to protect human rights

2.4 Competitive tendering for public services [page 25]

(…) Examples of public services subject to competitive tendering that may have consequences for human rights are the operation of asylum reception centres, hospitals and schools. The state may also be held responsible for human rights violations if these result from inadequate management or control of private service providers within the state’s sphere of responsibility. The Government considers that Norwegian law and supervisory authorities are adequate for this purpose, and that there is no need for special measures at present.

III. Areas of Actions and Measures

Pillar I. The State Duty to Protect Human Rights

Operational Principles [page 18]

Guiding Principle 5

Guiding Principle 5 considers situations in which the State contracts with companies to provide services with a possible impact on the enjoyment of human rights. The lack of guarantees for the respect for human rights by companies which provide such services can have detrimental consequences for the State itself, not only in the field of reputation but also in the legal field.

Measures

The Public Administrations will exercise an adequate supervision of the possible impact on human rights when contracting the services of companies, both within and outside of Spanish territory. This supervision must take into account the criteria of the specialised institutions, in accordance with the application of the Spanish CSR Strategy.

5. National Action Plan on Business and Human Rights

5.7 Pillar 1: state duty to protect

5.7.3 The State-business nexus [page 24]

Guiding Principle 5

Guiding Principle 5 concerns situations in which private business enterprises provide services on behalf of the federal government. The requirements that the federal government sets for these enterprises draw on Pillar 2 of the UNGP and the expectations for companies described in Section 4.3.

The federal government will employ the following policy instrument (PI) to implement Guiding Principle 5:

PI20 Human rights due diligence for private security service providers

The federal government uses a variety of services from private security service providers – for example to guard Swiss representations abroad. It is therefore obliged to check whether or not the firms that it engages fulfil their human rights responsibilities.

Article 31 para. 1 b of the Federal Act on Private Security Services provided Abroad states that, in a complex environment, the federal authorities may consider only those firms which are members of the ICoCA68. Since the ICoCA requires that firms abide by human rights standards, this is equivalent to demanding due diligence.

As a general rule, the federal government does not engage any security firms that are not members of the ICoCA to work in complex environments. It advocates that security firms should join the ICoCA, especially in regions in which there are still few, if any, member companies.