Guiding Principle 9
States should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts.
Economic agreements concluded by States, either with other States or with business enterprises – such as bilateral investment treaties, freetrade agreements or contracts for investment projects – create economic opportunities for States. But they can also affect the domestic policy space of Governments. For example, the terms of international investment agreements may constrain States from fully implementing new human rights legislation, or put them at risk of binding international arbitration if they do so. Therefore, States should ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements, while providing the necessary investor protection.
What National Action Plans say on Guiding Principle 9
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.”It also briefly mentions that the OECD NCPs collaborated with NGOs on the promotion of the “Accord on Fire and Building Safety in Bangladesh”.
Action point 10, La Belgique s’engage à intégrer des critères « droits de l’Homme » et de Responsabilité sociétale des entreprises (RSE) dans la stratégie d’appui au développement du secteur privé local de la coopération belge [Belgium is committed to integrating human rights and corporate social responsibility (CSR) criteria into the local private sector development support strategy of Belgian cooperation] explains that both the management contract between the Belgian State and the Belgian Investment Company for Developing Countries (BIO) and the Convention 2014-2017 for the implementation of the Trade for Development Center, signed between the Belgian State and the Belgian Technical Cooperation, provide that all interventions aimed at development of the sector private sector must respect certain principles of intervention, among these the respect for social and environmental aspects as wells as good governance. These two legal tools also provide reporting obligations to monitor and evaluate compliance with the principles.
Action point 11, Assurer une meilleure coordination entre les autorités fédérales et régionales afin d’intégrer des critères relatifs aux droits de l’Homme et à l’entrepreneuriat socialement responsable dans les aides publiques [Ensure better coordination between federal and regional authorities in order to integrate criteria relating to human rights and socially responsible entrepreneurship in public aid] aims at bringing together the various public services that work with Belgian companies on trade and foreign investment in order for them to exchange information at regular intervals. In this context, the government will examine a common method to integrate into the evaluation of applications the promotion of human rights and other aspects of social responsibility.
On 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] the federal government states that during negotiations at the European level, Belgium will advocate for the respect and inclusion of fundamental labour rights and international environmental standards – including in cases of development cooperation – in investment agreements and free trade agreements. “Any new trade or investment agreement must not have negative impact on sustainable development.”
- Flanders mentions its support of the EU’s efforts to include separate chapters covering sustainable development, in which the environment, labour (including dignity in work) and transparency (including consultation with civil society) in free trade and investment agreements. Flanders aims to continue its advocacy for the inclusion of clauses promoting socially responsible entrepreneurship, including compliance and enforcements mechanisms, into these chapters.
- Flanders also mentions its support to the EU practice of always referring, in the preambles to these agreements, to the Universal Declaration of Human Rights.
- The Flemish government also stated that it is funding the ILO project ‘Workers’ rights in globalising economies: assessment of labour provisions in trade and investment arrangements’ for an amount of € 450,000 (Flemish ILO Trust Fund). The project started in July 2014 and will be completed in the course of 2016. The main purpose of this project is to conduct a survey on how employment standards and arrangements are reflected in trade and investment agreements, and what effect these provisions have on the employment situation in the country with which the agreement was concluded.
- 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 28, Exécution du Plan d’action flamand “Entrepreneuriat international durable 2014-2015-2016” (« Duurzaam Internationaal Ondernemen 2014-2015-2016 ») [Implementation of the Flemish Action Plan “Sustainable International Entrepreneurship 2014-2015-2016”] the government of Flanders explains that Flanders Investment & Trade 2015 plan includes contributing to the education of Flemish companies on socially responsible international entrepreneurship through awareness-raising activities. The FIT “wants to offer concrete information to companies, both through their website and in national dossiers, through training courses for the benefit of Flemish economic representatives and advisers in international entrepreneurship.”
Pillar I. The State Duty to Protect Human Rights
Strand 7: Strengthening of International Political Coherence [pages 47-48]
While this process generated recommendations about coherence between policies at a national level, there were also recommendations identified about the importance of strengthening the coherence that must in Chile’s position about business and human rights, both at international fora and regarding the signature of economic and other international agreements.
7.2. The Ministry of Foreign Affairs will:
o Through the General Directorate of International Economic Relations:
- Seek to strengthen, in the negotiation of trade agreements, the revision of current agreements and/or unilateral and joint statements with trade partners, certain criteria and provisions highlighting the importance of social sustainability and responsibility, with special focus on the respect for human, environmental, social and labour rights; for example, by mentioning the United National Guiding Principles on Business and Human Rights and or OECD Guidelines.
- Propose, in the preamble of trade agreements, a language showing full commitment with the respect for fundamental human rights, thus continuing this the focus adopted in the agreement with the European Union.
7.3 The Unit for International Affairs of the Ministry of Labour will:
o Support the incorporation of the United Nations Guiding Principles in the trade agreements subscribed by our country, in coordination with the competent authorities, as relevant.
II. The State as an economic actor
Including human rights in the State’s business activity [page 13]
To this end:
2.3 The Ministry of Commerce, Industry and Tourism emphasises the inclusion, in the business negotiations with other States, of clauses or criteria on human rights; this will be considered in the negotiation of future agreements, review of current agreements, and/or unilateral or joint statements with the business partners.
The Czech NAP does not contain a reference to GP9.
2. State Duty to protect human rights
2.3 Actions taken
Protection of human rights through state regulation and policy [page 12]
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 analysis and requirements to comply with fundamental principles of ILO when providing interest-free loans to public infrastructure projects in developing countries.
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 31]
- When Danida signs contracts with companies, it is a requirement that companies live up to Danida’s anti-corruption policy and to the UN Global Compact. A description of the applicant’s approach to quality assurance and how it will comply with Danida’s anti-corruption code of conduct and the principles of the UN Global Compact during implementation are requested from pre-qualified tenderers and form part of the tender evaluation.
- The EU adheres to principles and standards on responsible business conduct such as the OECD Guidelines for Multinational Enterprises, which is also reflected in negotiations for free trade agreements that includes the area of investment. The guidelines are considered the reference document on Corporate Social Responsibility, including human rights, intended to balance the rights and obligations between investors and host states. Furthermore, it is common practice to reference in the mandate the right of the parties to adopt and enforce measures necessary to pursue legitimate public policy objectives such as social, environmental, human rights, security, public health and stability of the financial systems in a non-discriminatory manner.
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles)
- On responsible Business Program in Myanmar (see GP8).
- The Government actively supports substantial Trade and Development chapters in the EU’s bilateral free trade agreements as well as human rights suspension clauses in the same agreements. The new free trade agreement between the EU and Peru/Colombia is an important case in point, being substantially more ambitious in this area than earlier agreements.
1.The state obligation to protect human rights
1.3 Activities in the EU [page 13]
The promotion of the realisation of human rights is a central part of the EU’s foreign relations. The common EU trade policy is carried out in the framework of the EU foreign relations principles and objectives. The common trade policy applies to third countries outside of the internal market. Member States cannot enact trade policy norms or conclude agreements between each other or with countries outside of the EU. The competencies transferred to the EU are exercised by its institutions. The Commission uses the competence outwards, representing the EU and negotiating on behalf of the Union.
The provisions on competencies and decision-making create the legal framework for the conduct of the EU’s trade policy, but materia! objectives are not provided for. The objectives are created in the interaction between the Commission and the member states. For Finland, it is essential to get Finland’s own national objectives integrated into the EU objectives.
As a follow-up measure, the working group suggests that in order to reinforce the human rights aspect in the EU trade policy:
- Finland will support the strengthening of human rights assessments in third countries during EU trade or investment agreement negotiations and when monitoring their implementation. Finland shall make use of the human rights assessments in forming its own opinions related to trade policy positions. Finland supports that human rights will be taken in to account in the EU investment agreements or in potentia! new bilateral agreements made by Finland.
Fakinland endorses the inclusion of human rights clauses to all EU political framework agreements and their consideration as essentials elements in trade agreements. In trade agreements, Finland shall also endorse clauses enabling an exemption from agreed provisions in cases where the other contracting party violates human rights.
- Finland shall monitor and influence human rights questions related to trade through the EU Generalised System of Preferences (GSP) by actively participating in the work of the Council of the European Union GSP Working Party and GSP Committee. The objective of Finland is for the system to promote the effective and efficient implementation of human rights in countries benefiting from the GSP. The system covers a special incentive mechanism for sustainable development and good governance (GSP+), a special arrangement for the least developed countries as well as a general arrangement.
- Finland promotes human rights issues in the framework of bilateral and inter regional trade agreements by making use of the work of the monitoring groups for sustainable development of those agreements in matters related to trade and labour rights.
- Finland is involved in international work in UN decision-making bodies related to communication technologies (such as WSIS and the World Summit on the Information Society) as well as in other central international organisations (such as the Internet Governance Forum, IGF). The objective of Finland is to reinforce the administrative system of an open and inclusive network so that freedom of speech is ensured in the development of the international information society.
A report shall be made on how trade and human rights as well as trade and labour rights have been taken into consideration in the free trade agreements of the EU, the United States and same other countries (such as regulation, monitoring mechanisms, dispute settlement and implementation). Principal responsible party: Ministry for Foreign Affairs, continuous activities, report by mid-2015.”
I. The Obligation of the State to protect Human Rights
8. Trade and Investment Agreements [pages 19-23]
In its 2013 opinion, the CNCDH underlined that “the need for coherence should guide France’s foreign policy” and recommended that, in accordance with Guiding Principle no.10, “the Government support and promote the aforementioned instruments within multilateral institutions dealing with economic, commercial and financial issues, including those that are binding, that are designed to ensure that businesses respect human rights.
As for the National CSR Platform, it issued the following recommendations:
– Promote CSR and human rights in international trade, finance and investment agreements; – Increase the involvement of stakeholders in impact studies completed before trade negotiations with respect to CSR;
– Ensure social and environmental clauses are included and respected under these agreements;
– Reinforce the monitoring and evaluation of these agreements.
France discussed CSR issues in a report on its international trade strategy and European trade policy (December 2015), clearly indicating that CSR is a concern addressed in its trade policies.
State measures to control access to domestic markets are powerful tools when it comes to protecting and supporting businesses that respect human rights.
However, in a document dated 24 June 2016, the Committee on Economic, Social and Cultural Rights expressed its concern at “the failure to devote sufficient attention to the impact that bilateral or multilateral trade or investment agreements concluded or being negotiated by the State party or the European Union have or will have on the enjoyment of Covenant rights in the other countries that are party to those agreements. The Committee is particularly concerned by the fact that the mechanisms for settling disputes between States and investors provided for in several agreements could reduce the State’s ability to protect and achieve some of the Covenant rights (art. 2 (1)).”8 Indeed, most bilateral investment agreements and a growing number of bilateral and regional trade agreements implement mechanisms for investor-State dispute settlement (ISDS). ISDS enables foreign investors to bring arbitration proceedings when they consider that host States have not complied with the terms of the original agreement. ISDS makes it possible to obtain rulings against States that do not respect their commitments (for example, due to discrimination on the basis of gender, religion, nationality, etc.). In 2014, more than 600 cases were registered around the world, not including private disputes between parties whose details were kept confidential.
In 2013, the EU and the United States began negotiating a Transatlantic Free Trade Agreement (TAFTA,) also known as the Transatlantic Trade and Investment Partnership (TTIP), which originally featured an ISDS clause. The EU has suggested replacing the ISDS clause with a bilateral investment dispute court or Investment Court System until a permanent multilateral court can been established. This reform is being defended in all European trade negotiations, and has already been accepted by Canada and Vietnam.
European trade agreements incorporate CSR and adherence to international conventions on labour and the environment. EU free trade agreements all include sustainable development chapters, which contain provisions on labour law and environmental protection. These chapters also refer to CSR. Provisions mainly reiterate key existing multilateral agreements (for example, ILO’s fundamental conventions in the labour field and multilateral environmental agreements in the environmental field). They also set out cooperation mechanisms for the parties in order to support progress in these fields. Sustainable development chapters in EU free trade agreements and investment agreements contain two further important provisions: one prevents parties to the agreement from lowering social and environmental standards to promote trade and attract investments; the other confirms States’ right to regulate in the social and environmental fields.
These provisions have been included in European trade agreements since 2008. They are now systematically incorporated into agreements being negotiated, including the TTIP. The European Commission can adapt commitments to social and environmental standards based on a country’s level of development.
Otherwise, France is currently revising its model agreement for the protection of investments. In particular, it is planning to significantly reinforce provisions on CSR and the State’s capacity to regulate in the social, environmental, health and cultural fields, as per the European draft model.
From the French perspective, addressing these issues in free trade agreements results in a number of weaknesses:
– Firstly, State-to-State dispute settlement (SSDS) mechanisms do not apply to social and environmental standards and human rights clauses. If standards are not met, consultations take place between the EU and the third country, after which an expert committee is created to suggest possible solutions. Moreover, European trade agreements do not provide for sanctions, unlike US agreements, which have lower human rights standards than those concluded by the EU. The lack of sanctions makes these provisions difficult to enforce.
– Secondly, although trade agreements include social and environmental standards and human rights clauses taken from the main international texts on labour laws and the environment, international organizations (the UNDP, ILO, etc.) are not involved in negotiations, despite the fact they carefully monitor the implementation of these texts (through regular reports by State parties, etc.). Instead, in trade agreements, a committee meeting at least once per year is charged with monitoring the implementation of sustainable development chapters. Civil society (NGOs and nonprofit organizations) can also act as whistleblowers if these regulations are breached, although this power is not institutionalized. Discussions with civil society are generally formalized by way of an annual forum or consultative committee bringing together stakeholders from different backgrounds.
To respect human rights and support responsible practices, social and environmental costs must be included in cost prices. The EU condemns social and environmental dumping and selling at a loss. France must encourage the international bodies to which it is party to implement measures guaranteeing fair and undistorted competition.
In 2013, France issued a number of proposals to improve the way in which social and environmental standards were addressed in European trade agreements.9 These proposals are still relevant.
These proposals focus on five main areas:
- Improving cooperation with international organizations working in the labour and environmental protection fields (ILO, UNDP, UNEP, etc.). Some of these organizations, particularly UN organizations, are running cooperation projects in countries currently negotiating trade agreements with the EU. Some of these cooperation activities are oriented in such a way that they directly support the social and environmental goals set down in agreements. This is the case for some countries that have just concluded trade agreements or countries benefitting from Europe’s Generalised Scheme of Preferences (GSP).10
- Improving the evaluation of sustainable development chapters through rigorous impact assessments. These impact assessments must provide a clear overview of social and environmental standards in countries negotiating agreements with the EU.
France has completed a major revision of the European manual used to write these impact assessments. This could lead to progress in the field.
- Giving civil society more power to monitor these chapters. In addition to the annual forums currently planned by the European Commission, European trade agreements could give civil society (NGOs and trade unions) a formal “whistleblower” role, denouncing breaches of social and environmental standards. The Commission has decided not to look further into this option at this stage.
- Improving the enforcement of existing sustainable development chapters by reinforcing implementation mechanisms. In November 2015, the French Minister of State for Foreign Trade sent a letter to European Commissioner Cecilia Malström asking the European Commission to investigate ways of including these chapters in dispute settlement mechanisms in trade agreements. 5. Increasing the involvement of businesses by including CSR requirements in sustainable development chapters in trade agreements. Currently, these chapters contain a short paragraph on CSR, but this should be reinforced by adding references to key international texts on the subject (particularly the OECD Guidelines).
Proposal for Action No. 3
- France has undertaken to promote the UN Guiding Principles in its trade relations with other States and confirms its commitment to the hierarchy of norms when signing trade and investment agreements.
- France also checks that all trade and investment agreements comply with international human rights law.
- France, working with other European partners who support this initiative, is building on proposals made to the previous European Commission (in March 2013) to reinforce social and environmental standards in free trade agreements and monitor their enforcement.
- France supports the inclusion of a new European model investment chapter in all EU trade negotiations and, in the long run, the adoption of this approach in bilateral French agreements, in order to reinforce States’ right to regulate and overhaul investor-State dispute settlement procedures.
- France contributes to the debate on setting up a permanent multilateral court to deal with investment disputes.
Actions to be implemented
- Monitor compliance with the recommendations issued by the Committee on Economic, Social and Cultural Rights in its opinion of 24 June 2016.
- Encourage impact assessments to be completed before and after agreements are concluded and make all free trade agreements conditional on the inclusion of human rights clauses and the prioritisation of the UN Guiding Principles.
- Ensure that sustainable development chapters in EU free trade agreements are binding and enforceable under these agreements’ dispute settlement mechanisms.
- Support responsible businesses by giving goods and services produced in compliance with human rights obligations better access to French and European markets.
- Initiate discussions on the consequences of failing to respect human rights and the inclusion of human rights in policies tackling unfair competition.
- Contribute to debate on recognising the concept of a group of companies in the EU. France’s General Secretariat for European Affairs will support this work and distribute relevant documentation to lead ministries, in order to guarantee inter-ministerial coordination on European issues and their assessment by European institutions.
2. Challenges in corporate practice [page 2]
- The Federal Government will support the systematic inclusion of sustainability chapters in free-trade agreements, which will prescribe, among other things, compliance with the ILO Core Labour Standards.
1.The State Duty to Protect
1.3 Basic rule of economic policy [page 18]
Bi- and multilateral economic relations
Under Article 207 of the Treaty on the Functioning of the European Union (TFEU), commercial policy lies within the sphere of competence of the EU. Within the Federal Government, the Federal Ministry for Economic Affairs and Energy is responsible for formulating German positions in the realm of commercial policy and advancing them in European and global forums. For the export-driven German economy, particular importance attaches to the elimination of trade barriers and reinforcement of the multilateral trade system. Trade, moreover, can make a major contribution to sustainable development. In this context, it is important that trade should be shaped in a development-friendly way. This means, for example, that environmental, social and human rights standards should firmly underpin free-trade agreements, which should be accompanied by impact-assessment and monitoring mechanisms.
The current situation
The institutions and Member States of the EU are also bound by their human rights obligations when implementing Union legislation. Germany supports the EU practice of agreeing on provisions designed to safeguard human rights in framework agreements with trading partners and using sustainability chapters in all new free-trade agreements to enshrine high labour, social and environmental standards. Germany is committed to the negotiation of comprehensive binding standards for inclusion in these sustainability chapters. The EU ‘Trade for All’ strategy, which was presented in the autumn of 2015 also emphasises that commercial policy should advance sustainable development and human rights throughout the world. At the same time, free trade agreements also guarantee the right to regulate, which preserves the necessary leeway for states to protect human rights. The Federal Government supports further development of the range of instruments for human rights impact assessment of trade and investment agreements.
- The Federal Government is pressing for the inclusion of an ambitious sustainability chapter in the planned TTIP agreement with the United States.
- The Federal Government advocates and supports further development of the range of instruments for human rights impact assessments of the EU’s trade and investment agreements. Moreover, comprehensive impact assessments should be conducted before negotiations begin, so as to guarantee that the findings of the assessments can influence the negotiations.
- In the framework of the Aid for Trade initiative, the Federal Government supports developing countries’ efforts to improve their trading opportunities. In the future, the Federal Government will focus even more sharply on supporting compliance with labour, social and environmental standards.
- The EU Special Incentive Arrangement for Sustainable Development and Good Governance (‘GSP+’) can be used as a format for promoting the observance and application of human rights standards by governments of developing countries. In the forthcoming review process of 2018, the Federal Government will press for further strengthening of that instrument.
The Irish NAP does not contain a reference to GP9.
IV. Government responses
Current Activities and Future Commitments [page 25]
B. Operational Principles
Ensuring policy coherence
Guiding Principle 9
Italy considers it a priority to promote implementation of existing international tools on human rights in the business sector, also in line with the 2030 Agenda, …. and with regard to the negotiation of international treaties and agreements. States and relevant actors should adopt policies and mobilize resources to advance equitable, human rights-based and sustainable development. Italy acknowledges the link between human rights, sustainable development, and fair business competition and is aware that the lack of respect for human rights is a potential factor of distortion on international markets.
Italy acknowledges the link between human rights and fair competition and will endeavour at the international, bilateral and multilateral level to identify effective solutions to enhance the protection of human rights.
The Lithuanian NAP does not contain a reference to GP9.
3. Results of the consultations and government response
Trade mission to Indonesia [page 15]
Between 20 and 22 November 2013, Prime Minister Mark Rutte led a trade mission to Indonesia. He was accompanied by the Minister for Foreign Trade and Development Cooperation and the Minister for Agriculture. During talks with the Indonesian President Susilo Bambang Yudhoyono, Mr Rutte raised the issue of human rights. He also opened a forum on sustainable production and trade, organised in collaboration with the Sustainable Trade Initiative. The Minister for Foreign Trade and Development Cooperation took part in this forum and talked with representatives of Indonesia’s government, civil society organisations and private sector on the importance of sustainable production of and trade in palm oil and pulp for the paper industry.
Trade and investment agreements [page 20]
The government is committed to including clear provisions on the relationship between trade, investment and sustainability in trade and investment agreements. (…) Existing Dutch bilateral trade agreements provide parties with the policy space to take non-discriminatory measures to protect public interests such as human rights, working conditions and the environment. The Lisbon Treaty gave the EU exclusive competence on direct foreign investment. With this shift, which does not apply to every aspect of investment, the EU now negotiates investment treaties together with the member states. Each EU investment agreement will most likely contain a separate section on environment, labour, sustainability and transparency, dealing with these issues in greater detail. The Netherlands is very much in favour of including such sections in all future EU investment protection agreements.
BOX – Free Trade Agreement between the EU, Peru and Colombia
The free trade agreement between the EU, Peru and Colombia seeks to reaffirm respect for human rights and ensure sustainable economic development. Title IX on Trade and Sustainable Development contains provisions on supervision and implementation, based on labour and environmental standards, with agreements on promoting and implementing internationally recognised ILO labour standards. The Colombian government undertakes to consult civil society organisations each year on implementation of this Title of the trade agreement. These organisations may also issue recommendations on their own initiative.
BOX- Burma [page 30]
Since the economic sanctions were lifted, the international business community has shown considerable interest in investing in Burma.
Despite positive developments and reforms, Burma still faces major challenges, including in the field of human rights. On 1 July 2013, legislation came into force in the United States requiring companies investing more than $500,000 in Burma to publish an annual report on their activities, including their due diligence policies. The Netherlands would like to exchange views and experience on this issue within the OECD. To promote responsible investment, the Netherlands supports the Myanmar Centre for Responsible Business, a local platform for the development and coordination of capacity for business and human rights among all relevant actors in Burma. The platform focuses on promoting and enabling responsible investment in Burma, in accordance with the UN Guiding Principles. To this end, it supplies knowledge, tools and training to enable companies, investors, government authorities and civil society organisations in Burma to fulfil their roles. Through dialogue and consensus, it is drafting criteria to enable companies and investors to pursue effective human rights policies.
2. The State duty to protect human rights
2.8 Free-trade agreements and investment contracts [page 26]
Norway is bound by reciprocal obligations through its membership of international trade organisations such as EFTA and WTO. The Ministry of Trade, Industry and Fisheries has the overall responsibility for bilateral free trade agreements (EFTA) and investment contracts, while the Ministry of Foreign Affairs is responsible for WTO negotiations.
seek to ensure that provisions on respect for human rights, including fundamental workers’ rights, and the environment are included in bilateral free trade and investment agreements.
The Polish NAP does not contain a reference to GP9.
III. Areas of Actions and Measures
Pillar I. The State Duty to Protect Human Rights
Operational Principles [page 20]
Guiding Principle 9
- The Government will promote the inclusion of references to the respect of human rights in agreements on trade, investment or other related business activities signed by Spain that affect the scope of the Guiding Principles. Likewise, the Government will promote the inclusion of such references in the agreements entered into by the European Union with third-party States.
- The Government will promote awareness-raising and the implementation of the United Nations Principles for Responsible Contracts recommendations, developed in 2011 by the then Special Representative of the Secretary-General John Ruggie (A/HRC/17/31/Add.3, 2011).
Annex: Measures taken
In 2013, the Swedish Government adopted a platform for Swedish action on corporate social responsibility (CSR). The issue of business and human rights has received considerable attention in recent years. The following examples describe some measures already taken in accordance with this policy.
The State as actor [page 29]
- Sweden has entered into memoranda of understanding (MoUs) with certain countries on structured cooperation on corporate social responsibility. For example, there are two MoUs between Sweden and China, including an action plan for 2010–2015, under which a special Centre for Corporate Social Responsibility (CSR) has been set up at the Embassy of Sweden in Beijing. Among other activities, the CSR Centre provides training for Chinese participants. Chile and Sweden signed an MoU on corporate social responsibility in 2012. The possibilities of similar MoUs with other countries are being explored.
- Sweden has pushed for the inclusion of references to CSR in the chapters on sustainability in the EU’s bilateral and regional trade agreements, investment agreements and partnership and cooperation agreements.
Annex: Measures planned
Trade promotion [page 29]
- Business Sweden (the Swedish Trade & Invest Council) will be instructed to strengthen its implementation of the UN Guiding Principles on Business and Human Rights and, in particular, to support small and medium-sized enterprises in this area.
- Sweden will act to ensure that the EU includes references to CSR, including the UN Guiding Principles for Business and Human Rights, in the sustainability chapters of its bilateral and regional trade agreements, investment agreements and partnership and cooperation agreements.
- Sweden will work with like-minded countries in the EU to strengthen EU policy in this area, for example, by persuading more EU countries to adopt national action plans based on the Guidelines.
The State as development partner
- The Government will integrate sustainability issues into trade policy and export promotion and in the context of the relaunch of the Policy for Global Development and its efforts to contribute to the new global sustainable development goals (SDGs).
- Sweden will encourage organisations such as the UN, the EU, the OECD and the World Bank to promote corporate respect for human rights within their respective mandates.
5. National Action Plan on Business and Human Rights
5.7 Pillar 1: state duty to protect [page 30]
Guiding Principle 9
Guiding Principle 9 relates to economic agreements that the federal government enters into with other States or with business enterprises. Specifically, these include the WTO, bilateral investment treaties, free trade agreements and contracts for investment projects. With these agreements, the federal government should ensure that sufficient domestic policy scope remains to fulfil the human rights obligations of both Switzerland and the contractual partner.
The Federal Council endeavours to ensure that protection for human rights is incorporated by means of consistency clauses into these contractual agreements, and that the contractual partners’ regulatory scope to fulfil their human rights obligations is not restricted. It also runs targeted projects to foster respect for human rights among business enterprises in partner States.
The federal government will employ the following policy instruments (PI) to implement Guiding Principle 9:
PI33 Consistency between free trade agreements and protection for human rights
The primary aim of free trade agreements is to foster bilateral economic relations, and to improve the economic capacity of the contracting States’ national economies. When negotiating free trade agreements (and investment protection agreements, see below), Switzerland, in the interests of policy coherence supports the inclusion of clauses requiring consistency with human rights, labour and environmental standards. One of the functions of such clauses is to underline the parties’ obligation to comply with the applicable multilateral environmental agreements and International Labour Organization conventions, and to implement them effectively. At the same time, they reference international instruments to protect human rights, and the principles of responsible corporate governance. A further clause in Swiss free trade agreements provides that they may not compromise or challenge existing international law – and therefore also human rights – obligations. When negotiating human rights, labour and environmental law aspects, the competent federal agencies are consulted in the same way as with all other questions.
Free trade agreements, and thus also aspects of relevance to human rights, are monitored via consultation mechanisms, specifically joint committees.
International human rights obligations are implemented primarily by means of the organisations, forums and projects set up for this purpose (including UPRs by the UN Human Rights Council, and the ILO control mechanisms (cf. PI 38, 41, 44 and others)). Switzerland also arranges human rights dialogues, or collaboration on human rights, environmental, labour and employment issues, with selected partner countries.
The Federal Council continues to keep a close eye on international developments in human rights due diligence (referred to as impact assessments).
PI34 Consistency between investment protection agreements and the protection of human rights
In the interests of policy coherence, Switzerland also advocates the inclusion of consistency clauses when negotiating investment protection agreements (IPA).
In 2012, SECO joined forces with interested federal agencies to draft new provisions that incorporate sustainability aspects into IPAs. These provisions state clearly that the agreements are to be interpreted and applied in a manner consistent with other international obligations incumbent on Switzerland and its partner countries, including those concerning human rights. This ensures that IPAs do not conflict with the protection of human rights. Switzerland has been proposing these new provisions in negotiations since 201293. It is also committed to the application to new IPAs of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, which came into effect on 1 April 2014. In early 2015 an internal government working group was set up to review Swiss treaty practice, with the aim of incorporating the latest developments in international investment protection. The report on its findings was published on 7 March 201694.
The new provisions formulated by the working group are tabled by Switzerland in all negotiations on the revision of existing or conclusion of new IPAs. Switzerland will also continue to track developments in investment protection in the future and, where necessary, review whether or not further amendments to its treaty practices are required.
PI35 Promotion of the UNGP in political consultations, human rights dialogues and specific projects
In the future, the Federal Council will be even more systematic in addressing the issue of business and human rights in its political consultations and human rights dialogues with relevant States. When preparing these consultations and dialogue meetings, the FDFA consults not only a variety of federal agencies, but also further interested groups such as representatives of private industry and civil society.
The federal government also aims to take on a greater number of specific bilateral projects, as a means of furthering the UNGP. In political dialogue and in strategic partnerships with the governments of partner states, it will discuss situations in which regulations, policies, or other action on the part of the host state make it difficult for Swiss business enterprises to respect human rights.
The UK 2013 NAP
The UK 2013 NAP does not contain a reference to GP9.
The UK 2016 updated NAP
2. State’s Duty to Protect Human Rights [pages 10-11]
18. The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs: (…)
(vii) Support the EU commitment to consider the possible human rights impacts of free trade agreements, including where these include investment protection provisions, and take appropriate steps including through the incorporation of human rights clauses as appropriate.
The National Action Plan
Leading by Example
Outcome 1.2: Utilise U.S. Law, Multilateral Agreements, and Diplomacy to Promote and Enforce High Standards [page 9]
Enhanced Enforcement of U.S. Laws Relating to Forced Labor or Convict Labor: As a result of the February 2016 enactment by the President of the Trade Facilitation and Trade Enforcement Act of 2015, the U.S. government has removed an exception (the “consumptive demand” clause) in 19 U.S.C. § 1307 that allowed for the importation of certain forced labor-produced goods if they were not produced “in such quantities in the United States as to meet the consumptive demands of the United States.” This exception existed since 1930, and its removal facilitates the Department of Homeland Security’s (DHS) ability and ongoing commitment to prevent and investigate the importation of goods manufactured with forced labor.
Implementing Department or Agency: DHS
Ongoing commitments and initiatives
Free Trade Agreements: The United States has sought to promote the role that governments can play in encouraging companies to engage in RBC in the context of 21st century free trade agreements (FTAs). For example, the Trans-Pacific Partnership (TPP) countries agreed to establish a TPP Development Committee that would promote public-private cooperative initiatives to help certain TPP partners reach their development goals, which include the promotion of broad-based economic growth; enhanced opportunities for women in domestic and global economies; and education, science and technology, research, and innovation. All U.S. FTAs since 2004 also contain transparency and anti-corruption provisions, including requiring our trading partners to criminalise both domestic and foreign bribery. For instance, the TPP includes a historic transparency and anti-corruption chapter. The TPP Parties have also agreed to encourage companies to voluntarily adopt corporate social responsibility principles that the TPP parties have themselves supported or endorsed relating to labor and environment issues. Implementing Department or Agency: DOJ, USTR, State, Commerce
Addressing Illegal, Unreported, and Unregulated (IUU) Fishing: Following the June 2014 Presidential Memorandum on Establishing a Comprehensive Framework to Combat IUU Fishing and Seafood Fraud, the U.S. government has taken steps to develop a Trusted Trader program as part of an effective seafood traceability process to combat IUU fishing and seafood fraud. The program will establish incentives for RBC by supporting enhanced streamlined entry into U.S. commerce for certified importers. Another outgrowth of the Memorandum was the establishment of a 14-agency National Ocean Council Committee on IUU Fishing and Seafood Fraud, which is overseeing the implementation of the March 2015 Action Plan. Through the Oceans and Fisheries Partnership, the U.S. Agency for International Development (USAID) will continue its commitment to strengthen regional cooperation to combat IUU fishing, promote sustainable fisheries, and conserve marine biodiversity in the Asia-Pacific region. The Safe Ocean Network, launched through State’s Our Ocean Conference, is a global community fighting against IUU fishing through detection, enforcement, and prosecution measures that increase collaboration between countries and counter-IUU organisations. More than 40 counter illegal fishing projects in 46 countries worth over $82 million over five years are affiliated with the Safe Ocean Network as of October 2016 to address the issue. Implementing Department or Agency: State, USAID, Commerce, DHS, DOL