Danish Institute for Human Rights
DIHR
The Danish Institute for Human Rights is an independent state-funded institution.
ID: 257612138504-68
Lobbying Activity
27 May 2024
The Danish Institute for Human Rights (DIHR) welcomes the opportunity to feedback on the application of the do no significant harm (DNSH) principle to the Social Climate Fund (SCF) and share policy reflections for its future extension under the next Multiannual Financial Framework. DIHR is Denmarks National Human Rights Institution operating in accordance with the Paris Principles. Notably the DIHR welcomes the reflections on addressing some of the policy coherence issues identified as it relates to application of the DNSH principle across different Union programmes and funds. To further support the policy coherence across EU regulations as well as the alignment with the taxonomy, DIHR recommends that a holistic approach is taken to the interpretation of DNSH in the context of the Social Climate Fund as well as other Funds, which might warrant further refinement of the approach, based on the Taxonomy and SFDR model. Concretely, a future approach in addition to streamlining DNSH requirements should consider how to incorporate aspects related to doing no significant social harm, such as captured by the minimum safeguard requirements as introduced and defined in Regulation (EU) 2020/852 Article 18. In the Taxonomy Regulation the minimum safeguards provision aims to ensure that activities that substantially contribute to one or more environmental objective(s) whilst doing no significant harm to the remaining objectives are implemented by companies that respect human rights including labour rights. In other words, the provision is an important safeguard for social sustainability in a measure otherwise focused on environmental sustainability matters. Incorporating social safeguards in the approach to DNSH under SCF would also improve consistency with the Sustainable Finance Disclosure Regulation (SFDR) which contemplates the use of DNSH in connection with both social and environmental objectives rather than in relation to environmental objectives alone. To ensure the coherent and consistent application of this Regulation, it is necessary to lay down a harmonised definition of sustainable investment which provides that the investee companies follow good governance practices and the precautionary principle of do no significant harm is ensured, so that neither the environmental nor the social objective is significantly harmed. (Regulation (EU) 2019/2088 (17)). The occasion of crafting a DNSH approach for the Social Climate Fund makes it all the more relevant to recall the critical importance of respect for human rights in securing a just transition. With an explicit focus on providing Member States with dedicated funding so that the most affected vulnerable groups, such as households in energy poverty or households in transport poverty, are directly supported, and not left behind during the green transition, it is critical to ensure that all investments and measures under the fund are implemented with due diligence for adverse impacts on human rights. This includes investments to support vulnerable households, vulnerable micro-enterprises and vulnerable transport users, through temporary direct income support and through measures and investments intended to increase the energy efficiency of buildings, decarbonisation of heating and cooling of buildings, including through the integration in buildings of renewable energy generation and storage, and to grant improved access to zero- and low emission mobility and transport. (REGULATION (EU) 2023/955, Article 3,2). Even interventions that have a positive social objective can have negative social / human rights effects. For instance projects that may result in more energy efficient housing combatting energy poverty may be carried out with insufficient regard for health and safety or working conditions of the workers on sites. Please refer to the attachment for a full response.
Read full responseMeeting with Maria-Manuel Leitão-Marques (Member of the European Parliament, Rapporteur) and Global Counsel Limited
15 Nov 2023 · Forced Labour ban
Meeting with Karen Melchior (Member of the European Parliament)
8 Jun 2023 · General
Meeting with Karen Melchior (Member of the European Parliament)
27 Feb 2023 · Company Case Studies and Downstream Due Diligence policy paper and presentation
Response to Effectively banning products produced, extracted or harvested with forced labour
25 Nov 2022
The Danish Institute for Human Rights (the Institute) is grateful for the opportunity to give feedback on the European Commissions initiative Effectively banning products extracted or harvested with forced labour published on 14 September 2022 (the Proposal) and makes the following comments. KEY RECOMMENDATIONS Policy coherence The Proposal should be complementary with the Corporate Sustainability Due Diligence Directive and ensure that the two measures are mutually reinforcing and incentivise the broadest range of economic operators to undertake human rights due diligence aligned with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. The Proposal should: Clarify the definitions and requirements of due diligence to ensure that importers are incentivised to undertake risk based due diligence in line with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. Amend the definition of due diligence in relation to forced labour in Article 2(c) to make specific reference to the process of human rights due diligence as outlined in the UN Guiding Principles on Business and Human Rights. Clarify that being subject to a Member State law transposing the requirements of the Corporate Sustainability Due Diligence Directive or any other due diligence law is not a sufficient ground to entitle a Competent Authority to conclude that appropriate due diligence has been undertaken under Article 4(6). Clarify the interlinkages with the Sustainable Finance Disclosure Regulation (SFDR) and in particular the use of Principal Adverse Impacts including related to social sustainability as detailed in the regulatory technical standards. Ensure that it is mutually reinforcing of efforts to address forced labour within the EU itself. Remedy and remediation The Proposal should include requirements and incentives for economic operators to provide and/or cooperate in remedy and remediation to those working in conditions of forced labour. The proposal should: More strongly incentivise economic operators to provide remediation by specifying that the grounds for lifting an enforcement decision under Article 6(6) would be that the economic operator is required to ensure that those affected have received remedy. Empower Competent Authorities to order corrective actions, including with respect to the provision of remediation addition to the power issue penalties under Article 12(6). Incentives for companies to engage with the issue of forced labour The Proposal should provide sufficient incentives for companies to use their leverage to mitigate the risk of forced labour before cutting ties with their suppliers, or otherwise see to address underlying conditions of forced labour. The Proposal should: Amend Article 4(6) to clarify how the conduct of due diligence and adoption and carrying out of measures suitable and effective to bring an end to forced labour should be considered by a Competent Authority. This should include clarifying whether such considerations are sufficient to preclude a finding that there has been a violation of the prohibition against the import of products produced using forced labour, or how a Competent Authority can and should monitor the conditions of workers linked to the products under investigation. Amend Article 6(6) to clarify what is required to show that forced labour has been eliminated in satisfaction of the requirement in Article 6(6), and how a Competent Authority should decide that the requirement is met. This should include clarifying what may constitute evidence and whether there will be ongoing monitoring to ensure that forced labour issues do not recur and avoid the possibility that an economic operator will implement a temporary solution, or simply drop a supplier, to meet this requirement at the expense of meaningful engagement. Consider mechanisms which take inspiration from
Read full responseResponse to European Critical Raw Materials Act
25 Nov 2022
The Danish Institute for Human Rights (the Institute) welcomes that the EU identifies adverse social and environmental impacts as one of the six key problems in the supply of critical raw materials. Indeed, the production of critical and processing of raw materials can have significant adverse impacts on the human rights of workers and communities. Environmental degradation and human rights infringements, including in relation to indigenous peoples are well-documented in relation to several raw materials. This includes, but it is not limited to severe environmental degradation and violation of human rights in extraction and processing of Light Rare Earth Elements, child labour in supply chain of Cobalt, infringement of indigenous rights and impacts on water access in the production of lithium. This is particularly concerning given that several deposits, mines and processing plants of critical raw materials are located in fragile states, conflict areas and jurisdictions were environmental management, labour conditions and protection of surrounding communities lack effective regulatory systems and/or capacity or willingness to implement them. If unaddressed the EU risks outsourcing negative externalities associated with raw material extraction and production to third countries and their rightsholders. The proposal for impact assessment is silent on whether the EU considers deep sea mining in international waters a potential alternative supply source. The Institute notes that this is an area where governance is particularly weak and unclear and where NGOs have stated that the current knowledge is insufficient to determine environmental impacts, and therefore potential impacts on coastal communities and peoples depending on ocean resources for food security and livelihoods. The Institute recommends the above problems and potential solutions are reflected more clearly in the impact assessment as well as in the initiative and specifically across the four regulatory pillars. This will enable better substantiation of the largely positive social impacts envisaged for the initiative Relatedly, the Institute notes the lack of focus on responsible sourcing which is critical to prevent human rights infringements in EU external raw minerals supply chains. Engagement with organizations and stakeholders in EU and abroad working with responsible sourcing in both large and small scale mining and processing of minerals will be key to improving the initiative in this respect. The Institute recommends that respect for human rights and responsible sourcing aspects are clearly addressed in the design of regulatory and non-regulatory measures The proposed Corporate Sustainability Due Diligence Directive (CSDDD) will require certain classes of companies to identify and address negative human rights and environmental impacts by undertaking due diligence. This includes large companies and, over time, SMEs in high impact sectors, which includes extractives. As such, it is one means by which the challenges noted above may be addressed. The Institute recommends that the Initiative is aligned with the approach to due diligence outlined in the CSDDD to ensure that the two measures are mutually reinforcing. The Institute finally notes in relation to the untapped potential of EU supply that in the EU and EU associated territories, potential sources of critical raw materials are located in territories inhabited by indigenous communities, such as the Sami and the Inuit, which rights should be considered including the right to Free, Prior and Informed Consent. The Institute recommends that the Initiative identifies and addresses potential human rights concerns related to EU internal supply from the start
Read full responseMeeting with Karen Melchior (Member of the European Parliament)
11 Aug 2022 · Digital Administration
Response to Effectively banning products produced, extracted or harvested with forced labour
17 Jun 2022
The Danish Institute for Human Rights (DIHR) gives this feedback in response to the call for evidence for an initiative without an impact assessment for the initiative “Effectively Banning Products Produced, Extracted or Harvested with Forced Labour” (the Initiative).
The Initiative aims to effectively ban the placing on the EU market of products made wholly or in part by forced labour, covering both domestic and imported products. It is understood that the initiative would build on international standards and complement existing cross-cutting and sectoral EU initiatives, in particular those with due diligence and transparency obligations.
While DIHR welcomes the Commission’s strong stance on the eradication of forced labour, when designing an initiative to address this pressing issue, the utmost care must be taken to ensure that any such measure places the needs of rightsholders at the centre and is coherent with other parallel regulatory developments. Consistent with the EU’s commitment to decent work worldwide, it is critical that any initiative placing a ban on the import of goods produced using forced labour does not only seek to exclude goods produced using forced labour from the EU market, but also addresses the underlying issue of forced labour by placing affected rightsholders at the centre. The Initiative must not inadvertently exacerbate the adverse impacts on rightsholders by triggering immediate disengagement at the expense of encouraging companies to use leverage to ameliorate the situation of those working in conditions which amount to forced labour. Further, it is crucial that the Initiative includes provision for remedy and remediation for those in a situation of forced labour.
Given that the Initiative is being proposed without a full impact assessment, it is critical that the Commission is alive to the potential for misalignment with other initiatives in force and under development, and the need to ensure that they are mutually reinforcing. A recent publication from the DIHR How do the pieces fit in the puzzle? Making sense of EU regulatory initiatives related to business and human rights, considers various EU initiatives and highlights potential areas of misalignment. In particular, DIHR highlights the need for coherence and alignment of incentives in the proposed Corporate Sustainability Due Diligence Directive (CSDD).
There remain a number of points requiring attention which are set out in the attached submission.
Read full responseMeeting with Lara Wolters (Member of the European Parliament, Rapporteur)
27 Apr 2022 · Danish National SCDD Event
Response to Sustainable corporate governance
6 Apr 2022
The Danish Institute for Human Rights is grateful for the opportunity to provide feedback on the proposed Corporate Sustainability Due Diligence Directive.
To ensure that recovery after COVID-19 is just and equitable, that human rights abuses connected to unsustainable business practices are tackled and that the urgent issues of climate change and environmental degradation are adequately addressed, there is a need to refocus on sustainable development and the principles set out in the 2030 Agenda, in which respect for human rights is deeply embedded. The European Union has taken laudable steps to address these issues through the Green Deal and the Corporate Sustainability Due Diligence Directive (the proposal), each of which set an ambitious goal of transforming corporate behaviour and encouraging a sustainable future. The fundamental principles set out in the UN Guiding Principles on Business and Human Rights (UNGPs) and OECD Guidelines for Multinational Enterprises (OECD Guidelines) remain critical touchstones for the development of such regulatory solutions.
Translating the expectations of soft law instruments into hard law obligations is challenging for any legislature. Legal certainty is needed in order for a law to be consistently applied, adhered to and enforced. However, this must be done with a view to the overall objective of the proposal, namely to secure a just transition to sustainability in a manner consistent with the Union’s core values of respect for human dignity, freedom, democracy, equality, rule of law and respect for human rights.
The proposal contains a number of ambitious aspects, as it covers impacts across the full value chain, includes provisions on enforcement and civil liability and has the potential to have a significant positive impact for people and planet. However, there are a number of aspects of the regulation which, in seeking to create legal certainty, may undermine this objective and instead create further ambiguities. Examples of this can be found in the restricted number of companies in scope, use of the “established business relationship” concept to delimit the scope of due diligence rather than taking a risk based approach, a heavy reliance on the tools of contractual assurance, cascading and verification, and in the approach to defining the material scope of adverse human rights impacts. These deviations from the international frameworks mentioned above risk undermining its effectiveness as well as the legal certainty it sets out to create.
The co-legislators should not lose sight of the fact that we now have over a decade of practice of companies applying human rights due diligence as it is understood in the UNGPs and OECD Guidelines. It is the larger companies falling within scope of the proposal who are more likely to have developed more innovative practices to identify and address their human rights impacts, drawing from methodologies such as promoting the use of human rights impact assessments, empowering trade unions and civil society, making investments in management or production processes and creating business models which better respect human rights, encouraging long term collaboration and capacity building with partners and collective responses including working at the sectoral level. Care must be taken to ensure that the requirements of the proposal support these practices and do not perversely encourage a step back.
We attach a detailed analysis of the proposal which analyses each element of the proposal and provides recommendations to strengthen this important initiative.
Read full responseResponse to Revision of Non-Financial Reporting Directive
9 Jul 2021
Please see the attached submission.
Read full responseMeeting with Karen Melchior (Member of the European Parliament) and European University Association
25 Jun 2021 · Exchange of Views
Response to Sustainable corporate governance
8 Oct 2020
The Danish Institute for Human Rights (DIHR) is an independent National Human Rights Institution established by the Danish Parliament in accordance with the UN Paris Principles and is accredited with A status. Under its legal mandate, the DIHR's main functions are to monitor human rights in Denmark and promote human rights internationally, including through engagement with non-state actors. The DIHR’s Business and Human Rights Department has been working in the area since 1999 and is an internationally-recognised centre of expertise on the application of human rights norms to business actors, across all world regions and industry sectors.
We give the attached feedback on the Inception Impact Assessment on Sustainable Corporate Governance drawing on our expertise from 20 years of working with companies, states and civil society to build a global environment in which negative impacts on human rights by business activities are minimised and addressed, including through implementation of the UN Guiding Principles on Business and Human Rights (UNGPs).
This initiative is stated to be part of the EU’s focus on delivery on the UN Sustainable Development Goals (SDGs), and has the aim of encouraging companies to “align better the long-term interests of management, shareholders, stakeholders and society” and improve “the framework to incentivise corporate boards to integrate properly stakeholder interests, sustainability risks, dependencies, opportunities and adverse impacts into strategies, decisions and oversight”.
The initiative envisaged by the IIA aims to provide these incentives using a range of possible mechanisms, including: the introduction of due diligence obligations with respect to a company’s human rights, environmental, climate change and governance impacts; and a requirement that company directors take into account all stakeholders’ interests which are relevant for the long-term sustainability of the firm or which belong to those affected by it as part of their duty of care to promote the interests of the company and pursue its objectives.
The DIHR supports the goals of the Sustainable Corporate Governance Initiative and makes the following recommendations on these contemplated mechanisms and on the need for regulatory coherence:
• The EU should implement a mandatory due diligence obligation, aligned with the concept of human rights due diligence set out in the UNGPs and supported by an effective enforcement mechanism;
• The due diligence obligation should not be confined to a directors’ duty, but rather be tied to an accountability mechanism available to impacted stakeholders; and
• The introduction of a due diligence obligation should be aligned with other EU initiatives aimed at promoting responsible and sustainable business.
Read full response