National Action Plan on Business and Human Rights & Protecting Displaced Populations: Taiwan

Innovation in the Social Sciences (2023) 1–17 brill.com/iss

National Action Plans on Business and Human Rights and Protecting Displaced Populations through Human Rights Due Diligence Recommendations for Taiwan Bonny Ling | orcid: 0000-0003-0569-1886 Work Better Innovations, Portsmouth, UK; University of Nottingham, Nottingham, UK bonny.ling@wbi.org.uk Received 6 February 2023 | Accepted 23 April 2023 | Published online 5 December 2023

Abstract In 2020, Taiwan released its National Action Plan on Business and Human Rights (nap) to implement the UN Guiding Principles on Business and Human Rights, with the government committing to release a revised plan by the end of 2024. In parallel was the release of Taiwan’s first National Human Rights Action Plan (nhrap) in 2022, where refugee protection was expressed as a priority. In this, the government commits to codify legal mechanisms for asylum and clarify application procedures. These developments on business and human rights, on the one hand, and refugee protection, on the other, are significant for the Asia-Pacific because the region hosts the highest number of displaced persons and is the global manufacturing hub. This article examines the nexus between business, human rights and protection for displaced individuals. It provides recommendations on how Taiwan’s next nap can address refugee protection in line with its human rights protection commitment.

Keywords human rights – labour rights – business – refugees – internally displaced persons – migrants – labour – due diligence – Taiwan Published with license by Koninklijke Brill nv | doi:10.1163/27730611-bja10004 Downloaded from Brill.com 12/17/2023 01:32:35PM © Bonny Ling, 2023 | ISSN: 2773-0611 (online) via Open Access. This is an open access article distributed under the terms This is an open access article distributed under the terms of the cc by 4.0 license. of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

2 1

ling

Introduction1

A momentous development in the field of international human rights came with the endorsement of the UN Guiding Principles on Business and Human Rights (ungp s) by the UN Human Rights Council in 2011. The ungp s was heralded as ‘a globally agreed standard and baseline for what governments and businesses need to do to embed respect for human rights in a business context’ (United Nations Human Rights Special Procedures 2021, 2). It was not the first time that the UN body tasked with the promotion of human rights worldwide had attempted to set standards on the human rights responsibilities of business enterprises. An earlier endeavour in 2003 saw the Human Rights Commission, the precursor to the Human Rights Council, reject a resolution to clarify the human rights responsibilities of businesses. This earlier resolution to support the draft ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (United Nations SubCommission on the Promotion and Protection of Human Rights 2003) failed to garner broad support. Businesses largely wanted such responsibilities to be voluntary. Corporate proponents also believed that the draft norms did not properly consider the positive contributions that the private sector could make in support of human rights (Jerbi 2009).

In the decade since the international endorsement of the ungp s, the landscape on corporate responsibilities has greatly shifted. The 31 Guiding Principles under the ungp s’ three-pillared ‘protect, respect and remedy’ framework is a summary of the standards for how states and business enterprises should view the scope of their human rights obligations and responsibilities (United Nations Office of the High Commissioner for Human Rights 2011). Since the entry of the ungp s into the international human rights field in 2011, various national action plans to implement the ungp s domestically have come into being. As of March 2023, according to the Danish Institute for Human Rights, 30 countries have published National Action Plan on Business and Human Rights (nap s), with another nineteen countries currently developing their nap s (Danish Institute for Human Rights 2023).

1 The author is grateful to Shuhan Lin, formerly with the Taiwan Association for Human Rights, for helpful discussions on refugee protection in Taiwan; and to Dr Lisa Hsin of the University of Oxford for discussions on human rights due diligence. The author further thanks the reviewers for their constructive feedback on an earlier version of the manuscript.

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

2

3

Taiwan’s National Action Plan for Business and Human Rights

Amongst the countries that have already released their nap s, Taiwan is a relative latecomer, having published its nap in December 2020. In the Asia-Pacific, Taiwan’s nap is the fourth of such national plans to be released, after South Korea in August 2018 (forming a part of its National Human Rights Action Plan (nhrap)), Thailand in October 2019 and Japan in October 2020. The timing of Taiwan’s nap release on 10 December 2020, coinciding with Human Rights Day, is significant. Human Rights Day marks the adoption of the Universal Declaration of Human Rights (udhr) by the UN General Assembly in 1948. Taiwan’s release of the nap on such a symbolic date highlights the government’s wish to join the growing global discourse on business and human rights, notwithstanding Taiwan’s position outside the UN system. The full title of Taiwan’s nap, ‘Taiwan National Action Plan on Business & Human Rights: Implementation of the United Nations Guiding Principles on Business & Human Rights (ungp s) 臺灣企業與人權國家行動計畫—落實「聯合國工商企業與人權指導原 則」’, reflects the aim of the government to establish a domestic framework for this new field of corporate responsibility, one that intersects with human rights (Executive Yuan, Republic of China (Taiwan) 2020). Its nap mirrors the structure of the ungp s, with the first pillar addressing the standard state duty to protect human rights and the second addressing the corporate responsibility to respect human rights. The third pillar is concerned with remedy, the fundamental human right that there must be an access to remedy for victims of business-related human rights abuses.

3

Taiwan’s nhrap and Refugee Protection

In parallel with this fast-moving development on business and human rights in Taiwan was the release of the country’s first nhrap in May 2022. Taiwan’s nhrap identified eight key human rights priorities. Amongst these was the explicit commitment on refugee protection, namely for Taiwan to codify legal mechanisms for refugees to seek asylum and clarify related application procedures (Executive Yuan, Republic of China (Taiwan) 2022). This would be a significant development for refugee protection for Taiwan because it currently has no asylum law or any established legislative or administrative framework for refugee protection. Procedures concerning refugee protection are ad hoc.

Services provided to asylum seekers are done in a discretionary manner, with no established procedures for refugee status determination or resettlement and integration (Kironska 2022). Fortuitously, significant national developments Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

4

ling

are anticipated for both human rights fields in Taiwan for 2024. One is the expected revision of the nap that would further clarify how Taiwan intends to implement the ungp s domestically. Meanwhile, the government has committed to improve the legal framework on asylum, also by 2024. While these two human rights issues are often discussed separately, the convergence of these two key human rights developments, anticipated for 2024, presents a well-timed opportunity for Taiwan to examine the protection of displaced population as a vulnerable group within the context of business and human rights.

It is a case for policy coherence. Moreover, it is a case for the state to provide guidance and set out clear expectations for responsible business conduct, especially in high-conflict settings where displacement risks feature significantly.

This article examines the nexus between business, human rights and protection for displaced populations. It seeks to provide some recommendations for how the next iteration of Taiwan’s nap on business and human rights can address protecting displaced populations, in line with the government’s commitment for refugee protection in its first nhrap. This article calls for the government to apply the same drive towards innovation when it comes to coordinated national action for human rights protection in new areas for Taiwan and see where there is overlap that can be streamlined for better policy coherence. What follows is an examination of business activities in high-risk settings and the protection of displaced populations in the context of business and human rights; also provided are recommendations on human rights due diligence (hrdd) for what the Taiwanese government can do to update its nap.

This article refers particularly to Myanmar after the military coup of February 2021 for the current challenges that the country presents for business, human rights and refugee protection, not only for Taiwan but also for other countries that had invested in and fostered bilateral ties with Myanmar prior to 2021.

For the purposes of this article, the definition of Taiwanese businesses is broad and includes those that operate domestically and/or extraterritorially.

This follows the scope set by ungp 14, which establishes that the ‘responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure’.

The definition used to refer to individuals who are displaced follows the international definitions for a refugee and internally displaced person (idp), as further discussed in the section on the protection of displaced populations in business and human rights. The term ‘migrants’ is used as an umbrella term, one that has a broader coverage than the labels of ‘refugees’ or ‘asylum seekers’.

As per the standard used for statistical collection on international migration by the UN Department of Economic and Social Affairs, ‘international migrants’ includes any person who changes his or her country of usual residence, irreDownloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

5

spective of the reason for migration or legal status (United Nations Department of Economic and Social Affairs 1998; Carling 2015). Nevertheless, in addition to legal definitions and international standards, a discussion of the corporate responsibility to respect human rights and refugee protection, especially in the context of Taiwan–Myanmar bilateralism, must recognise that such an examination carries special relevance for Taiwan. This is because Taiwan hosts one of the largest Myanmarese diasporas in the Asia-Pacific. Estimated at around 40,000 individuals of Myanmarese origin, it represents one of Taiwan’s largest migrant groups (Prentice 2017) and this ties the two places together in a transnational network of economic investment, as well as a history of displacement and resettlement.

4

Businesses in High-Risk Contexts of Security and Displacement

The duty of the state to protect the rights of the displaced in a conflict-affected business context is not an academic matter for the Taiwanese government. Taiwanese businesses are increasingly active in Southeast Asia as part of the government’s New Southbound Policy to court political and economic allies in the region, including Myanmar, which has seen substantial Taiwanese investment in recent years. Taiwan economic investment in Myanmar started in earnest in 2016 when the Ministry of Foreign Affairs established a Taipei Economic and Cultural Office (teco) in Myanmar. In 2019, Taiwan’s total investments in Myanmar reportedly were around US$356 million, with around 250 Taiwanese enterprises and eleven banks operating in the country (Passeri 2019).

Following the military coup that took place in Myanmar in February 2021, many Taiwanese enterprises stayed and have continued to operate. It is, however, unclear what types of guidance teco has given to Taiwanese enterprises that have remained in Myanmar after the coup. Initial reports pointed to a recommendation from teco for Taiwanese businesses operating in Myanmar to fly the Taiwanese flag in order to distinguish themselves from Chinese-owned enterprises (Everington 2021), but there is no public information on what types of concrete guidance followed.

It remains unclear whether specific official human rights guidance was provided for Taiwanese enterprises operating in a high-risk, conflict-affected context such as Myanmar. It is likely that no such guidance was given to Taiwan enterprises that have continued their business activities in Myanmar, owing to the lack of specificity in Taiwan’s nap concerning how the government should support businesses in respecting human rights in conflict-affected areas under Pillar i. ungp 7 sets out clear expectations on how states should help to ensure Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

6

ling

that business enterprises operating in these high-risk, conflict-affected contexts are not involved with human rights abuses, such as by: a. Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships; b. Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence; c. Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation; and d. Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses (United Nations Office of the High Commissioner for Human Rights 2011, 8–9).

These steps are necessary due to the heightened risk of serious human rights abuses in conflict-affected areas. ungp 7 therefore calls on states to ensure, under its state duty to protect human rights, that enterprises operating in these heightened security contexts are not involved with such abuses.

When comparing Taiwan’s nap against ungp 7, it is evident that this state duty to protect individuals from serious human rights abuses in a conflictaffected business context, as understood by Taiwanese authorities, is substantively very weak. For instance, Taiwan’s nap mentions under ‘Actions Taken’ for ungp 7 only that certain Taiwan’s global brands in the electronics sector (Asustek, Acer, Hon Hai, htc and Taiwan Semiconductor Manufacturing Company) are all members of an industry body for responsible business conduct and that they follow the industry body’s Code of Conduct to strengthen their supply chain management (Executive Yuan, Republic of China (Taiwan) 2020).

Further, the nap also mentions that some of these Taiwanese multinationals are concurrent members of the Responsible Minerals Initiative, which assists companies in addressing issues related to conflict minerals. These statements, however, do not address how the government, under ungp Pillar I’s state duty to respect, helps enterprises to identify, prevent and mitigate the human rightsrelated risks of their business activities. For instance, in November 2022 reports emerged relating to a Myanmar factory owned by Pou Chen Group, Taiwan’s leading athletic and footwear supplier to global brands such as Nike, Adidas, Asics, New Balance, Timberland and Salomon (Pou Chen Group n.d.), which had not only dismissed striking workers but had also called in the military to suppress the strike (Abdulla 2022). The same report of the Pou Chen Group dismissing trade union members at its factory in Myanmar and informing the Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

7

military of strike action appeared in the Taiwanese domestic media in February 2023 (Wang 2023). However, it remains unclear if the Taiwanese government had engaged with or provided some assistance to the Pou Chen Group to address gross human rights abuses or, in the case of non-cooperation by the business enterprise, to deny it access to public support and services for being involved with rights violations and refusing to cooperate, as per ungp 7.

5

Protecting the Displaced in Business and Human Rights

In international law, states are the duty-bearers for the protection of displaced populations (refugees and idp s). The right of any persecuted individual to seek asylum is held to be one of the most fundamental human rights. Article 14(1) of the 1948 udhr states: ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’ In 1951, the Refugee Convention defines a refugee as a person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’ (Refugee Convention, Article 1(A)(2)). The international definition for idp s similarly refers to the persecution of those who are ‘forced or obliged to flee … in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized border’ (United Nations Commission on Human Rights 1998).

While states create and are responsible for situations that force individuals to flee their homes or places of habitual residence, business activities are not completely absent from this displacement landscape. Even though forced displacements are more associated with state action (for instance, wars, conflicts, regime collapse or political persecution) and less with the private sector, the roles and activities of business enterprises cannot be a blind spot in discussions on forced migration. Simply put, ‘[g]lobal business plays an intrinsic role in the experience of migrants and refugees. It is a generator of migration flows, an employer, and a provider of goods and services’ (Goethals et al. 2017, 335). For this reason, national action plans on business and human rights can include a specific reference to individuals who are displaced within categories of the population needing special protection in the business and human rights context. The Ugandan nap, released in August 2021, lists vulnerable groups as ‘the elderly, the mentally and physically disabled, at-risk children and youth, ex-combatants, internally displaced people and refugees, hiv/aidsDownloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

8

ling

affected individuals and households, religious and ethnic minorities and, in some communities or societies, women’ (Ministry of Gender, Labour and Social Development, the Republic of Uganda 2021, ix, emphasis added). The Ugandan national plan also refers to a domestic court case that was filed in 2013 but not concluded by 2019 concerning individuals who were internally displaced as result of business agricultural activities to illustrate barriers facing victims to access effective remedy (Ministry of Gender, Labour and Social Development, the Republic of Uganda 2021).

Nonetheless, the nexus between business enterprises and forced migration is often under-emphasised. The earlier rejected draft ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (United Nations Commission on Human Rights 2003) had a reference to the Refugee Convention and Protocol within a list of international treaties that transnational corporations and other business enterprises should respect. The ungp s do not list the Refugee Convention and Protocol explicitly as part of the internationally recognised human rights that should, at a minimum, come under the responsibility of business enterprises to respect human rights. This, however, does not mean that there is no corporate responsibility when it comes to population displacement in the context of the ungp s.

Instead, the ungp s read as a different type of document than the previous draft, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, which was a draft resolution with a long preamble in which the list of relevant international treaties appeared.

In recent years, the role of businesses in causing or contributing to political instability that then affects population movement has come under increased focus. The Russian invasion of Ukraine in February 2022 brought business ethics concerns to the fore. Global brands that wanted to reap the benefits of being seen as responsible actors expeditiously exited the Russian market.

Brands that hesitated faced a public backlash for choosing profits over a principled stance, while the latest unhcr figures estimate that more than eight million Ukrainian refugees have been recorded in Europe alone (United Nation Refugee Agency 2023). Similarly, the military coup that took place in Myanmar in February 2021 has brought forwards the question for many international businesses that operated in the country of when and how to exit a market responsibly (Wilde-Ramsing et al. 2021). The issues are complicated. Enterprises are local employers that provide a livelihood for their workers. They are also providers of goods and services in an environment where an unconsidered and irresponsible exit could potentially add to human rights harm. While the ungp s do not set out the responsibility for enterprises to leave conflict areas, Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

9

it is not mute on the expectations for corporate actors to identify, prevent, mitigate and account for their adverse human rights impacts in any setting, including conflict-affected area, as central parts of corporate hrdd under Pillar ii of the ungp s.

This is especially important given that the link between displacement, fundamental labour rights violation, such as the use of forced labour, and conflict may be more common than previously known. An international joint study between the International Labour Organization (ilo), the International Organization for Migration (iom) and the international human rights organisation Walk Free has begun to quantify slavery-related abuse among persons displaced by conflict. The study seeks to better understand the scale and nature of egregious labour exploitation reaching the threshold of forced labour amongst individuals internally displaced by protracted conflict (iom et al. 2022). The study in Nigeria, South Sudan and the Democratic Republic of the Congo focused on idp s in displacement sites and in host communities, pointing to a high prevalence of slavery-related abuses in these conflict-affected countries.

Notably, the highest rate reported by the idp s surveyed was in North Kivu region of the Democratic Republic of the Congo, where one in five respondents had experienced forced labour, forced recruitment or abduction in the previous five years (iom et al. 2022, viii). During this time, forced labour activities experienced by the survey respondents included economic activities with a direct link with private business enterprises, such as agriculture, forestry or fishing, construction, manufacturing, accommodation and food services, as well as wholesale and retail (iom et al. 2022).

6

Integrating Refugee Protection into hrdd

The starting point for refugee protection in Taiwan’s nap, as is for all potential negative human rights impacts, must be at the point of due diligence. ungp Pillar ii sets out the responsibility for business enterprises to respect human rights, with specific principles on the content of this responsibility. For instance, ungp 11 states that businesses should avoid infringing on the fundamental rights of others under any circumstances and should address negative human rights impacts with which they are involved. Furthermore, there is no exclusion to this corporate responsibility on the basis of differences in size, sector, operational context, ownership or structure of enterprises (ungp 14). The steps of hrdd are covered in ungp 17, calling on enterprises to assess ‘actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed’.

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

10

ling

Integrating refugee protection into this hrdd framework for Taiwan means that hrdd must be done with a focus on the substantive content and the requirements of this due diligence. In the current nap on business and human rights for Taiwan, hrdd features only superficially. In Chapter 4, which addresses the corporate responsibility to respect human rights in Taiwan’s nap, hrdd appears only once, under actions already taken. Even then, this is a cursory reference; it is mentioned only in passing that ‘more and more businesses have taken it upon themselves to establish hrdd procedures, identify and assess related human rights issues, and set up an internal complaint mechanism that functions smoothly and ensures confidentiality’ (Executive Yuan, Republic of China (Taiwan) 2020, 12). This pithy reference to hrdd in the main chapter on corporate responsibility underscores that current expectations for hrdd in Taiwan are far too weak. hrdd means more than identifying and assessing human rights issues: it also includes the corporate responsibility to mitigate and account for negative human rights impacts. Moreover, Pillar iii on access to remedy involves more than establishing an internal, confidential complaint mechanism that runs smoothly, as is stated in the nap.

In addition to the identification of actual or potential human rights harms, hrdd also calls for their prevention and mitigation, as well as for accountability. hrdd has two important components. First are the procedural aspects of it, an active and continuous process. hrdd requires active engagement, where lessons and measures taken to address identified potential and actual harms are consistently communicated internally at the level of corporate leadership as well as on the ground. This emphasis on hrdd procedures means that it should be integrated at all levels of business activity and not only deployed once a problem has been identified. The second aspect is one of the substance and scope for the identification of human rights harms. In this context, hrdd is not—and cannot be—a one-off exercise because operating contexts, as well as the economic and political realities on the ground, can change. New human rights risks can emerge, especially in high-risk, conflict-affected areas. Enterprises that operate in such settings must be forward planning and understand the totality of the human rights landscape in which they operate. This requires enterprises to recognise that their activities do not take place in a socioeconomic and political silo.

In high-risk, conflict-affected areas with weak governance structures, enterprises may cause or contribute to gross human rights violations that amount to persecution resulting in population displacement. However, this does not mean that human rights concerns for refugees are separate or represent a different scope entirely from those set out by ungp 12, which states: Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

11

The responsibility of business enterprises to respect human rights refers to internationally recognized human rights—understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.

United Nations Office of the High Commissioner for Human Rights 2011, 13

These are international minimum standards with respect to the corporate responsibility to respect human rights under the ungp framework, and they apply to enterprises in all contexts (ungp 23). The International Bill of Human Rights refers to the udhr and the two human rights covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Both human rights covenants are incorporated into Taiwan’s domestic law. Fundamental principles and rights at work refer to five specific categories of labour rights and their corresponding conventions of the ilo (International Labour Organization, 2022): – Abolition of child labour (C138 and C182); – Elimination of discrimination in employment and occupation (C100 and C111); – Freedom of association and collective bargaining (C087 and C098); – Elimination of forced or compulsory labour (C029 and C105); and – A safe and healthy working environment (C155 and C187).

It is important to stress that these are minimum standards. Business enterprises can exceed these standards. In cases where there is a conflict between domestic law and international standards, however, the commentary to ungp 11 is clear that corporate responsibility to respect human rights ‘exists over and above compliance with national laws and regulations protecting human rights’. This simply means that complying only with the requirements of national law, in cases where there is a divergence between national and international standards, is not sufficient.

The call for Taiwan’s next nap to have a broad vision for hrdd means, at its core, that there must be stronger expectations for what is encompassed by both the procedures and the content of this due diligence. Integrating refugee protection into the hrdd framework does not break new ground. This is because many aspects of identifying human rights risks in a situation of persecution, conflict and population displacement should also arise in a robust hrdd process. Rights pertaining to refugee protection, such as the right to life, liberty and security of person (udhr article 3); the right not be subjected to torture or to cruel, inhuman or degrading treatment or punishment (udhr article 5); the Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

12

ling

right not be subjected to arbitrary arrest, detention or exile (udhr article 9); or the right to seek and to enjoy in other countries asylum from persecution (udhr article 14), are fundamental human rights. hrdd in high-risk settings calls for enhanced sensitivity to human rights risks (Aguirre and Pietropaoli 2022). This naturally includes systematic abuses that amount to persecution.

Instead, the true innovation to be set for Taiwanese enterprises is the familiarisation and operationalisation of hrdd requirements in line with the standards set by the ungp s and not, as it currently appears, in Taiwan’s inaugural nap for business and human rights. Because the state’s duty to protect human rights under Pillar I is standard human rights materials on the state as the duty-bearer, Taiwan’s nap predominately stays within this pillar. The result is that both Pillars ii and iii remain markedly undeveloped. The present version of Taiwan’s nap does not assess the extent to which Taiwanese businesses have seriously engaged with Pillar ii. The plan also does not cover how enterprises can and should provide effective remedy for their adverse human rights impacts. Under Pillar iii’s access to remedy, adverse effects must be matched to appropriate and effective remedies, and there must be an access to remedy for victims of business-related human rights abuses. Concerning business activities in conflict-affected areas, current guidance based on its nap is not fit for purpose. At the minimum, the hrdd guidance for businesses that operate in conflict-affected areas must include the requirement to consult individuals and groups who are knowledgeable on the plight of displacement and who can meaningfully contribute in a heightened hrdd process.

These significant gaps in expectations are critical issues to be addressed for the next iteration of Taiwan’s nap, scheduled for publication by the end of 2024. Authorities tasked with updating the plan need to continuously seek civil society engagement in order to better outline procedures for the government’s response to adverse business-related human rights impacts, either domestically or abroad, and to elaborate on its expectations for Pillar iii (United Nations Working Group on Business and Human Rights 2016). These efforts require the Taiwanese government to grasp the new grounds set by the ungp s and address the shortcomings in domestic implementation expeditiously. Significant political will, driven by the recognition that growing international expectations for the human rights responsibilities of enterprises, is needed.

This reflects the new reality of doing global business, one that calls for Taiwan to quickly adapt or to face the possibility of being excluded from key markets that operate with more stringent environmental and labour standards. This is best illustrated by the Withhold Release Order of US Customs and Border Protection, which bars products believed to be made in whole or in part with forced labour from entering the US market (Flacks and Zou 2022).

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

7

13

Conclusion

The planned timeline for Taiwan to revise its current nap on business and human rights by 2024 is nearly the same for Taiwan to address refugee protection, outlined in its first national human rights plan. Finding ways for businesses to normalise the expectation of conducting robust hrdd wherever they operate is part of a broader recognition that businesses and forced migration do intersect. Heightened hrdd application in a conflict-affected area is an important part of forward planning for any enterprise operating in such contexts.

The UN, for instance, has stated that it will apply rigorous standards of due diligence in all areas of its assistance work in Syria and that it will be guided by the ungp s as standard procedure for any future reconstruction work in the country (United Nations General Assembly 2020, 17). Business relationships in a high-risk area can be a complicated web of investment flows to untangle and trace, but the presumption should not be that Taiwan lacks the tools to assess business-related negative impacts in such a setting. As a concept and operational requirement, hrdd is not new. hrdd already exists as an assessment tool, but hrdd in a high-risk area needs to be done with greater sensitivity and urgency. The next release of Taiwan’s nap needs to insert higher hrdd expectations. It is important for Taiwan to provide concrete guidance and set out clear expectations on hrdd under the corporate responsibility to respect human rights. It needs to move beyond, as one legal scholar opined, ‘descriptions of the existing structure and completed matters [with respect to business and human rights]’ and substantively engage with future action plans (Liao 2020, 8).

Taiwan is neither a member of nor holds observer status within the UN General Assembly. Long on the margins of the international intergovernmental system, Taiwan is well-versed in establishing innovative mechanisms to monitor the implementation of its international human rights obligations outside the UN system. Whereas States Parties to human rights treaties must regularly report on implementation progress to different bodies of UN-appointed experts under the periodic review system in Geneva or New York, Taiwan had devised a domestic system of replicating this review process for the two human rights covenants—the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights (Chen 2019 and Chang 2019)—and for other core human rights treaties. The same spirit must now be applied to Taiwan and business and human rights. While the severity of impacts will depend on the scale, scope and irremediable character of the human rights harm, as per ungp 24, one thing is clear. Without meaningful and serious hrdd, human rights harms will overshadow all the positives Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

14

ling

that enterprises can do to improve livelihoods for individuals, in displaced settings and beyond.

It remains to be seen whether Taiwan will follow the development in other jurisdictions of stand-alone hrdd legislation, such as in Germany, France and Norway. Nevertheless, as first step, clearer guidance on hrdd in its nap needs to be treated as the most important priority for the next revision of the plan. Because discussions on revisions to Taiwan’s nap are taking place at the same time as the government is considering measures to improve its domestic refugee protection system under the nhrap, seeing hrdd comprehensively and exploring how it could contribute to the protection of displaced populations abroad ensures policy coherence. It is important that Taiwanese enterprises abroad are not contributing to population displacement and other human rights harms. Moreover, broad uptake of hrdd by Taiwanese enterprises is the only way forward for Taiwan to become fully aligned with the ungp s in the field of business and human rights, where it wants to be so keenly seen as a responsible global partner.

References Abdulla, H. (2022). Adidas Launches Probe into Myanmar Supplier after Mass Worker Dismissals, JustStyle, November 7. Available at: https://www.just‑style.com/news/​ adidas‑launches‑probe‑into‑myanmar‑supplier‑after‑mass‑worker‑dismissals/ (accessed 25 March 2023).

Aguirre, D., and Pietropaoli, I. (2022). Part 2: Responsible Exit from Russia: Business and Human Rights in a Global Governance Gap, British Institute of International and Comparative Law, March 22. Available at: https://www.biicl.org/blog/36/part‑2​ ‑responsible‑exit‑from‑russia‑business‑and‑human‑rights‑in‑a‑global‑governance ‑gap (accessed 3 February 2023).

Carling, J. (2015). Refugees Are Also Migrants: All Migrants Matter, Border Criminologies, University of Oxford, September 3. Available at: https://blogs.law.ox.ac.uk/research​ ‑subject‑groups/centre‑criminology/centreborder‑criminologies/blog/2015/09/ref ugees‑are‑also (accessed 25 March 2023).

Chang, W-C. (2019). ‘Taiwan’s Human Rights Implementation Acts: A Model for Successful Incorporation?’ In: J.A. Cohen, W.P. Alford, C.-f. Lo, eds., Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific, Singapore: Springer, pp. 227–247.

Chen, Y.-J. (2019). ‘Isolated but Not Oblivious: Taiwan’s Acceptance of the Two Major Human Rights Covenants’. In: J.A. Cohen, W.P. Alford, C.-f. Lo, eds., Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific, Singapore: Springer, pp. 207–225.

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

15

Danish Institute for Human Rights. (2023). National Action Plans on Business and Human Rights: Countries. Available at: https://globalnaps.org/country/ (accessed 25 March 2023).

Everington, K. (2021). Taiwanese Firms Fly Taiwan Flags to Avoid Confusion with Chinese Plants in Myanmar, Taiwan News, March 15. Available at: https://www.taiwanne ws.com.tw/en/news/4151393 (accessed 2 February 2023).

Executive Yuan, Republic of China (Taiwan). (2022). National Human Rights Action Plan. Available at: https://english.ey.gov.tw/News3/9E5540D592A5FECD/db879e12​ ‑f6bb‑46d8‑ba80‑851185c963dd (accessed 2 February 2023).

Executive Yuan, Republic of China (Taiwan). (2020). Taiwan National Action Plan on Business & Human Rights: Implementation of the United Nations Guiding Principles on Business & Human Rights (ungp s). Available at: https://www.ey.gov.tw/File/​ F04E95A8CF2204D3 (accessed 2 February 2023).

Flacks, M., and Zou, C. (2022). To Build Resilient Global Supply Chains, Incorporate Respect for Human Rights, Center for Strategic and International Studies, December 16. Available at: https://www.csis.org/analysis/build‑resilient‑global‑supply‑chai ns‑incorporate‑respect‑human‑rights (accessed 3 February 2023).

Goethals, S. et al. (2017). Business Human Rights Responsibility for Refugees and Migrant Workers: Turning Policies into Practice in the Middle East. Business and Human Rights Journal 2 (2), pp. 335–342. Available at: https://doi.org/10.1017/bhj​ .2017.11 (accessed 3 February 2023). ilo (International Labour Organization). (2022). ilo Declaration on Fundamental Principles and Rights at Work and its Follow-up. Available at: https://www.ilo.org/​ wcmsp5/groups/public/‑‑‑ed_norm/‑‑‑declaration/documents/normativeinstrume nt/wcms_716594.pdf (accessed 2 February 2023). iom (International Organization for Migration), International Labour Organization and Walk Free. (2022). No Escape: Assessing the relationship between slavery-related abuse and internal displacement in Nigeria, South Sudan, and the Democratic Republic of the Congo. Available at: https://www.walkfree.org/reports/no‑escape/ (accessed 25 March 2023).

Jerbi, S. (2009). Business and Human Rights at the UN: What Might Happen Next?

Human Rights Quarterly 31 (2), pp. 299–320. Available at: https://doi.org/10.1353/hrq​ .0.0068 (accessed 3 February 2023).

Kironska, K. (2022). Taiwan’s Road to an Asylum Law: Who, When, How, and Why Not Yet? Human Rights Review 23 (2), pp. 241–264. Available at: https://doi.org/10.1007/​ s12142‑021‑00644‑y (accessed 3 February 2023).

Liao, F.F.-T. (2020). Business and Human Rights National Action Plans: International Standards, Comparative Analyses and Taiwan Implementations. Taiwan International Law Quarterly 17 (1), pp. 7–71.

Ministry of Gender, Labour and Social Development, the Republic of Uganda. (2021).

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

16

ling

The National Action Plan on Business & Human Rights. Available at: https://globalna ps.org/wp‑content/uploads/2021/08/uganda_approved‑national‑action‑plan‑on‑b usiness‑and‑human‑rights_august‑2021.pdf (accessed 25 March 2023).

Passeri, A. (2019). Too Little, Too Late for Myanmar in Taiwan’s New Southbound Policy? East-West Center, October 2. Available at: https://www.eastwestcenter.org/​ publications/too‑little‑too‑late‑myanmar‑in‑taiwan’s‑new‑southbound‑policy (accessed 2 February 2023).

Pou Chen Group. (n.d.). Footwear Business. Available at: https://www.pouchen.com/​ index.php/en/business/footwear‑business (accessed 25 March 2023).

Prentice, D. (2017). Taiwan’s ‘Little Burma’: Huaxin Street in Taipei Is Home to Many of Taiwan’s 40,000 Burmese Immigrants. The Diplomat, March 18. Available at: https://​ thediplomat.com/2017/03/taiwans‑little‑burma/ (accessed 25 March 2023).

United Nations Commission on Human Rights. (1998). Addendum: Guiding Principles on Internal Displacement, 11 February 1998, E/CN.4/1998/53/Add.2. Available at: https://www.refworld.org/docid/3c3da07f7.html (accessed 2 February 2023).

United Nations Commission on Human Rights. (2003). Economic, Social and Cultural Rights: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 26 August 2003, E/CN.4/Sub.2/2003/12/ Rev.2. Available at: https://www.refworld.org/docid/403f46ec4.html (accessed 2 February 2023).

United Nations Department of Economic and Social Affairs. (1998). Recommendations on Statistics of International Migration, Revision 1, (Statistical Papers Series M. No. 58, Rev. 1), st/ESA/STAT/SER.M/58/Rev.1. Available at: https://unstats.un.org/unsd/​ publication/seriesm/seriesm_58rev1e.pdf (accessed 25 March 2023).

United Nations General Assembly. (2020). Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 21 July 2020, A/75/212. Available at: https://documents‑dds‑ny.un.org/doc/UNDOC/GEN/N20/190/21/PDF/N2019021 .pdf (accessed 2 February 2023).

United Nations Human Rights Special Procedures. (2021). Business and Human rights: Towards a Decade of Global Implementation: Concept Note. Available at: https://www​ .ohchr.org/sites/default/files/Documents/Issues/Business/Intro_Guiding_Principle sBusinessHR.pdf (accessed 1 February 2023).

United Nations Office of the High Commissioner for Human Rights. (2011). Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework. Available at: https://www.ohchr.org/sites/default/​ files/documents/publications/guidingprinciplesbusinesshr_en.pdf (accessed 1 February 2023).

United Nation Refugee Agency. (2023). Operational Data Portal: Situation Ukraine Refugee Situation. Available at: https://data.unhcr.org/en/situations/ukraine (accessed 2 February 2023).

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms 10.1163/27730611-bja10004 | Innovation in the Social Sciences (2023) 1–17 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/

national action plans on business and human rights

17

United Nations Sub-Commission on the Promotion and Protection of Human Rights.

(2003). Economic, Social and Cultural Rights: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 26 August 2003, E/CN.4/Sub.2/2003/12/Rev.2. Available at: https://www.refworld.org/​ docid/403f46ec4.html (accessed 1 February 2023).

United Nations Working Group on Business and Human Rights. (2016). Guidance on National Action Plans on Business and Human Rights. Available at: https://www​ .ohchr.org/sites/default/files/Documents/Issues/Business/UNWG_NAPGuidance .pdf (accessed 2 February 2023).

Wang H.-Z. [王顥中]. (2023). Taiwanese Enterprise Pao Chen Group Accused of Cooperating with the Military in Myanmar to Suppress Workers [台商寶成遭控與緬甸 軍政府聯手打壓工人], Coolloud Collective, February 8. Available at: https://www​ .coolloud.org.tw/node/97372 (accessed 25 March 2023).

Wilde-Ramsing, J. et al. (2021). Telenor’s Exit from Myanmar—A Cautionary Tale for the Just Transition, Institute for Human Rights and Business, September 26. Available at: https://www.ihrb.org/focus‑areas/just‑transitions/telenor‑exit‑from‑myanmar‑a​ ‑cautionary‑tale‑for‑the‑just‑transition (accessed 3 February 2023).

Downloaded from Brill.com 12/17/2023 01:32:35PM via Open Access. This is an open access article distributed under the terms Innovation in the Social Sciences (2023) 1–17 | 10.1163/27730611-bja10004 of the CC BY 4.0 license. https://creativecommons.org/licenses/by/4.0/