In 2011 the UN Human Rights Council unanimously endorsed the Guiding Principles for Business and Human Rights. These 31 principles are based on three key principles; the duty of states and enterprises to protect and respect human rights and the possibility of legal remedy in the event of human rights violations ((http://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusinessHR.pdf)). One of the principles in relation to this is that Companies should undertake human rights due diligence assessing human rights impacts not just in their own activities, but should also linked to wider impacts of their operations and activities. ((https://blog.misereor.de/2016/08/30/aktionsplan-wirtschaft-und-menschenrechte-wenig-ambitioniert/)) This includes therefore a responsibility covering the entire supply chain of a company’s operations.
To date, 10 countries have developed and passed National Action Plans, aimed at enshrining the Guiding Principles on Business and Human Rights. ((https://germanwatch.org/de/download/17282.pdf)) The UK and the USA have even passed legislation which partially provides binding obligations on human rights. Furthermore France passed a law in February 2017 requiring “major French companies to identify, prevent and publicise human rights and environmental risks through appropriate measures.” ((http://www.zeit.de/wirtschaft/2017-02/frankreich-gesetz-globalisierung-menschenrechte-vorreiter-europa))
The German Federal government, however, does not think highly of binding regulations on human rights. They have preferred to focus on voluntary self-controls and commitments by companies. The German “Nationale Aktionsplan zur Umsetzung der VN-Leitprinzipien für Wirtschaft und Menschenrechte”, managed by the Department for Foreign Affairs and further developed in cooperation with trade associations, labour union representatives and experts from NGO´s, aims to ensure that by 2020 half of all large companies (those with over 500 employees) have human rights due diligence processes in place. Only if this is not achieved is the Federal Government willing to consider legally binding regulations ((https://blog.misereor.de/2016/12/22/gut-gemeint-oder-der-nationale-aktionsplan-fuer-wirtschaft-und-menschenrechte/)). NGO´s have widely criticised the National Action Schedule for not going far enough. The NGO Germanwatch compared various countries’ National Action Plans and identified that German efforts lag behind those of other countries, in particular with regard to transparency and code of procedure for companies. ((https://germanwatch.org/de/download/17282.pdf)). Amnesty International, Brot für die Welt, Germanwatch and Misereor who were involved in the consultation on the National Action Plan, have further criticised the plan that neither state-owned companies, nor public contracts, nor companies receiving subventions will be legally required to ensure Human Rights due diligence. The German NAP articulates an expectation that companies will provide this, but should they not adhere there will be no consequences. The federal government has indicated that they will scrutinise companies in 2020 in light of compliance but they have as yet provided no legal means to achieve this.
In the Bundestag, on the request of the German Green Party, a resolution was passed on 26.01.2017 to discuss a legal regulation for the fulfillment of the human rights obligation. The request included a request to the Federal Government for a bill to establish binding human rights obligations, as well as a requirement that companies should provide a human rights-related risk analysis, appropriate measures to prevent and remedy human rights violations, and publish them in a documented manner. The Left Group supported the motion and agreed. However, the majority of votes were rejected by the CDU / CSU and SPD groups. The reason for rejecting the CDU / CSU Group is that the relevant request was filed at the wrong time and that the “restructuring process of the National Action Plan” was to be awaited. The SPD Group’s reasoning was based on the fact that although there was a fundamental understanding of the criticisms, the CDU / CSU Group’s assessment was, in the first place, of little progress with the help of the National Action Plan ((http://dip21.bundestag.de/dip21/btd/18/122/1812209.pdf)).
However, the need for a law and for immediate action is without a doubt. German companies are frequently indirectly involved in human rights violations worldwide. A study by the University of Maastricht showed that, with a total of 87 complaints, German companies ranked fifth in an international comparison of human rights. ((http://www.sueddeutsche.de/wirtschaft/menschenrechte-mehr-verantwortung-1.3044065)) In an additional study by Germanwatch and Misereor “Global Energy Economy and Human Rights”, the two NGOs published very concrete cases of involvement of German companies in human rights violations, including the state-owned KfW Bank. Almost one third of the complaints are attributed to economic-human rights violations. ((https://germanwatch.org/de/download/18577.pdf))