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The state's duty to protect

Hand signing a paper.
Source:  picture alliance

The first pillar of the UN Guiding Principles on Human Rights (hereinafter UN Guiding Principles) underscores that the duty to protect human rights lies with the state. Under international law, states are obligated to respect, protect and fulfil human rights.

"States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate punish and redress such abuse through effective policies, legislation, regulations and adjudication."

UN Guiding Principle 1

In practice this means that states have the obligation to take measures to ensure that enterprises respect human rights. Past abuses must be investigated, the responsible parties must be called to account and they must provide redress for the victims. In addition to the state's duty to protect human rights, the Guiding Principles explicitly emphasise the responsibility private enterprises have to respect human rights. The question of how this responsibility should be framed and how the Federal Government can help enterprises fulfil their responsibility is an essential part of the National Action Plan for Business and Human Rights.

Legal frameworks: basis for the protection of human rights

The cornerstone for the protection of human rights in Germany is the German constitution, the Basic Law, in which the state affirms "inviolable and inalienable human rights as the basis of every community" (Article 1(2)). Building on this foundation, Germany has ratified numerous international human rights conventions and transposed them into national legislation. These include the International Covenant on Civil and Political Rights, most of the conventions of the International Labour Organization, important European treaties on human rights protection such as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter. As a member of the Council of Europe and the United Nations, Germany is also integrated into the international human rights system.

The United Nations Human Right Council (UNHRC) unanimously adopted the UN Guiding Principles in 2011. Under the German presidency, the G7 urged the private sector in the Leader's Declaration from the 2015 Elmau Summit to exercise due diligence with regard to human rights worldwide and to initiate appropriate processes.

The Federal Government has now taken another important step with its National Action Plan for Business and Human Rights. This plan formulates state obligations and expectations placed on enterprises to respect human rights. In doing so it is advancing the implementation of the UN Guiding Principles and picks up and carries on from several points regarding corporate due diligence that were stated in the G7 Leader's Declaration of 2015.

The Federal Government is examining various mechanisms for protecting human rights on the basis of the National Action Plan for Business and Human Rights, such as in the area of procurement law when significant subsidies are received and in the promotion of foreign trade and investment. In addition, state-owned enterprises bear a special responsibility to respect human rights as part of the state's duty to protect human rights.