Icar submission to the netherlands eu council presidency

Submission by the International Corporate Accountability Roundtable (ICAR) to the Netherlands EU Council Presidency on Priority Areas for Consideration in the Development of EU Council Conclusions and European Commission Recommendation s

29 January 2016

To the Netherlands Presidency of the Council of the European Union:

The International Corporate Accountability Roundtable (ICAR) is a coalition of non-­‐profit organizations that creates, promotes, and defends legal frameworks to ensure corporations respect human rights in their global operations.

ICAR welcomes the efforts of the Government of the Netherlands to prioritize business and human rights issues during the Netherlands Presidency of the Council of the European Union. In working toward EU Council Conclusions and recommendations for the European Commission with regard to business and human rights concerns, the Netherlands EU Presidency should focus its efforts toward the following five priority areas:

1. Development of a Regional Action Plan (RAP) on business and human rights and/or regional guidance to EU Member States on the process and content of National Action Plans (NAPs) on business and human rights.

To date, eight EU Member States have developed final or draft National Action Plans (NAPs) on business and human 1 rights, and many more are underway. NAPs provide a critical framework for developing and implementing the national laws, regulations, and policies necessary to propel States toward fulfilling their duty to protect human rights 2 from business-­‐related harms. Furthermore, completed national baseline assessments and multi-­‐stakeholder consultations recommended for the NAPs process provide key evidence of “where businesses are negatively impacting human rights, as well as existing gaps in law, policy, and institutions that contribute to such impacts and 3 that fail to ensure that prevention and redress take place.” Along with the Danish Institute for Human Rights (DIHR) and the European Coalition for Corporate Justice (ECCJ), ICAR has conducted extensive research into and 4 assessment of how NAPs can best be utilized in the business and human rights context. As such, ICAR urges the Netherlands EU Council Presidency to: (1) carefully consider current EU Member States’ practice and initiatives taking place as part of NAPs processes; (2) support the development of a Regional Action Plan (RAP) on business and human rights, including through the completion of a regional baseline assessment and multi-­‐stakeholder consultations; and (3) support the issuance of guidance to EU Member States on the recommended process for developing NAPs and substantive elements that should be considered in the content of NAP commitments.

2. Development of a dedicated monitoring and peer review process of EU Member States’ NAPs on business and human rights, including measures undertaken by Member States to implement commitments made within NAPs.

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The United Kingdom, the Netherlands, Denmark, Finland, Lithuania, and Sweden have published final NAPs, while Italy and Spain have published INT’L CORPORATE ACCOUNTABILITY ROUNDTABLE (ICAR) & DANISH INST. FOR HUMAN RIGHTS, NATIONAL ACTION PLANS ON BUSINESS AND HUMAN RIGHTS: A TOOLKIT FOR THE DEVELOPMENT, IMPLEMENTATION, AND REVIEW OF STATE COMMITMENTS TO BUSINESS AND HUMAN RIGHTS FRAMEWORKS 56 (2014), http://icar.ngo/wp-­‐ content/uploads/2014/06/DIHR-­‐ICAR-­‐National-­‐Action-­‐Plans-­‐NAPs-­‐Report3.pdf 3 Id. at 1-­‐2.

4 Id. 2

A monitoring process will increase the likelihood that the commitments made by EU Member States in their respective NAPs on business and human rights will be carried out in practice. While scrutinizing successes and failures, such monitoring and review mechanisms can also foster information exchange and the sharing of best 5 practices within and among governments, as well as with wider society. ICAR has mapped and analyzed several promising routes for tracking progress toward the fulfillment of State commitments on business and human rights, 6 including those outlined in NAPs, at the regional level.

ICAR recommends that the EU review the monitoring mechanisms associated with other EU initiatives, such as the existing peer review process for EU Member States’ NAPs on corporate social responsibility (CSR), and seek to apply lessons from these contexts into an oversight mechanism for NAPs on business and human rights.

3. Development of guidance to EU Member States on the incorporation of human rights considerations into public procurement processes.

As stated in the UN Guiding Principles on Business and Human Rights (UNGPs), the State’s duty to protect against human rights abuses by business actors is most compelling when governments establish a commercial relationship 7 through public procurement and the “contracting out” of public services. Given the purchasing power of governments, public procurement is a valuable tool in the effort to ensure business respect for human rights. Public procurement schemes at all levels should require companies to demonstrate compliance with universally recognized human rights due diligence standards, provided compliance assessments are conducted in an objective and impartial manner to avoid unjustified discrimination.

ICAR applauds the European Union for adopting new procurement directives and encourages the Presidency to explicitly support the provision of guidance to Member States on how to incorporate human rights considerations into public procurement under the fullest extent possible under the new directives. This is especially pressing, as Member States are required to transpose the new directives into domestic law by April 2016. Additionally, ICAR recommends that the EU engage with the “International Learning Lab on Public Procurement and Human Rights” (Learning Lab) and encourage Member States to engage with the Learning Lab as well. The Learning Lab is a network of government representatives, procurement professional associations, regional and international organizations, non-­‐governmental organizations (NGOs), national human rights institutions (NHRIs), and relevant academics. The Learning Lab’s objective is to identify and spread innovative and effective steps that governments are taking to incorporate human rights into public procurement.

4. Development of guidance to EU Member States for the removal of legal and practical barriers that prevent victims from accessing effective judicial remedies.

ICAR welcomes the focus on access to remedy during the Netherlands EU Council Presidency, as this pillar of the UNGPs remains the least understood and most poorly implemented. Along with its partner networks, ICAR researched and mapped the barriers that confront victims seeking judicial remedies in various jurisdictions, 8 including the European Union, for business-­‐related human rights abuses. ICAR found that States are generally not 9 fulfilling their obligations to ensure access to effective judicial remedies. A number of barriers to effective remedy identified in the report include: the doctrine of limited liability for corporations; time limitations on bringing claims; immunities and non-­‐justiciability doctrines; evidentiary burdens on claimants, particularly in relation to transnational litigation; and limitations on collective redress mechanisms.

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Id. at 49.

Id. John Ruggie, Special Representative of the Sec'y-­‐Gen. on the Issue of Human Rights & Transnational Corps. & Other Bus. Enters., Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, principles 5 & 6, U.N. Doc. A/HRC/17/31 (2011), available at http://www.business-­‐humanrights.org/media/documents/ruggie/ruggie-­‐guiding-­‐principles-­‐21-­‐mar-­‐ 2011.pdf.

8 GWYNNE SKINNER ET AL., THE THIRD PILLAR: ACCESS TO JUDICIAL REMEDIES FOR HUMAN RIGHTS VIOLATIONS BY TRANSNATIONAL BUSINESS (2013), http://accountabilityroundtable.org/initiatives/remedy/.

9 Id. 6 7

In light of these barriers, ICAR recommends the Netherlands EU Council Presidency call for the regional development, by the EU Council and/or the EU Commission, of practical guidance to encourage and assist EU Member States to: (1) remove legal and practical barriers that prevent victims from bringing and prosecuting a case in their courts and (2) enhance both criminal and civil laws to hold businesses accountable (including extraterritorially) for their involvement in human rights violations. Via an EU Directive, States should also be directed to identify the barriers to remedy that exist in their specific jurisdiction and consider the range of actions they can take to alleviate them. This process should be undertaken in consultation with key stakeholders.

5. Encourage the exercise of extraterritorial jurisdiction by States to ensure that victims of business-­‐related human rights abuses have access to an effective remedy in businesses’ host and home States.

Cross-­‐border business activities have become the norm in today’s globalized society. However, the legal environment in which businesses operate has not aligned with this development. Although the UNGPs call for effective access to remedy for corporate abuses without distinguishing between crimes in host and home countries, 10 States remain reluctant to promote access to judicial remedies for victims of cross-­‐border human rights abuse. The issue of extraterritorial jurisdiction therefore presents a significant barrier for victims of business-­‐related harms in accessing effective remedy.

EU Member States will not fulfill their duty to protect human rights and ensure effective remedy unless they make businesses domiciled in the European Union, and their subsidiaries, liable for harm resulting from human rights impacts. ICAR encourages the examination and use of extraterritorial jurisdiction to prevent and remediate business-­‐related human rights abuses within the region. In doing so, the Netherlands EU Council Presidency should: (1) address States’ and businesses’ long-­‐standing concerns surrounding the enhanced used of extraterritoriality, such as jurisdictional overreach, comity, and increased financial and administrative burdens on home State judicial systems; and (2) identify the situations in which States have a legal obligation to apply their laws extraterritorially and encourage the exercise of such jurisdiction.

In sum, ICAR applauds the efforts of the Government of the Netherlands to prioritize business and human rights issues during its Presidency term. ICAR remains grateful for the opportunity to provide the above inputs, heavily encourages the Netherlands EU Council Presidency to support the above measures via Council Conclusions and Commission recommendations, and stands ready to provide assistance toward this end.

Sincerely,

Amol Mehra, Esq. Director International Corporate Accountability Roundtable (ICAR) www.icar.ngo

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See, UN Office of the High Commissioner, Progress report of the United Nations High Commissioner for Human Rights on legal options and practical measures to improve access to remedy for victims of business-­‐related human rights abuses, U.N. Doc. A/HRC/29/39, at 10-­‐11 (May 7, 2015)