National Contact Points: A key mechanism for the respect of human rights? (Copy)

Author: Marine Richert

Marine Richert obtained her LL.B and a Certificate in Anglo-American Law from the University of Cergy-Pontoise (France) in 2017 and received the Award of Excellence from the Faculty of Law. She published in March 2018 an article in French on The responsibility of transnational corporations in case of a Human Rights’ violation on ELSA France Press. She completed in 2019 her LL.M in Law and Business Ethics at the University of Cergy-Pontoise as Valedictorian and won the Cercle d’Ethique des Affaires Prize for her Masters’ Dissertation on Ethical Risks Facing Mining Companies on the African Continent.

Abstract

National Contact Points (NCPs) are an innovative mechanism of the OECD Guidelines for Multinational Enterprises. The concept was initially created in 1984 but really became effective in 2000 with the publication of the Procedural Guidance which sets its role and functions. Each of the 48 adhering governments is responsible for the settlement of its NCP and must provide adequate resources to ensure its ability to meet its goal: the implementation of the Guidelines. Since 2011, the Guidelines include a chapter on human rights, extending their scope of action. NCPs must ensure that multinational enterprises respect human rights. To do so, not only do they promote the text but also contribute to the resolution of issues that arise from the alleged non-observance of the Guidelines in specific instances. It offers an alternative mean of action, which proved to be quite effective. Indeed, NCPs managed to have positive outcomes in a number of cases, whether to resolve a situation or implement a change within multinational enterprises. In addition, NCPs are deemed to have a positive influence in engaging dialogue between parties and facilitate mediation. However, this mechanism faces a few shortcomings concerning its structure and performance; the lack of resources being one of the major challenges if not the biggest. NCPs are dependent on their government. Without adequate resources, NCPs are not able to properly fulfil their missions and cannot have the impact they were initially aiming for. NCPs proved to be uneven and do not provide the same level of confidence in their ability to deal with an issue. This article concludes that even though it is not a key mechanism yet, it is a very promising mechanism with the appropriate implementation and review.

Introduction

It is only in the 1970s that concern about transnational corporations’ human rights behaviour emerged under the impulsion of the Organisation for Economic Cooperation and Development (OECD).[2] Since then, the topic has quite evolved and human rights have been placed at the heart of enterprises’ Corporate Social Responsibility (CSR) strategy. As a matter of law, human rights used to be only a State’s responsibility. Therefore, it took some time and effort before enterprises[3] included social and environmental aspects in their overall strategy.

The risks of human rights violations vary according to the activity at stake. Indeed, in the mining sector, for instance, a mining project may have negative impacts on local communities, as they may not be considered in the project and then suffer from displacement or land alienation. In the past, the loss of valuable land by the community members has resulted in serious poverty and suffering. They may also suffer from the pollution emanating from the mines. Therefore, they may be deprived of access to clean water and arable land. Their self-sustainability could be severely affected. Some communities may not survive to such impacts. Consequently, local communities may be deprived of basic human rights in the course of mining activities. Industrial activity may also infringe workers’ human rights. For instance, in the clothing industry, the term “sweating system” emerged in London in the 1850s to describe a production site characterised by poor working conditions within a supply chain.[4] At this time, workers’ rights were widely violated. But it still remains a concern nowadays. In 2013, the collapse of the Rana Plaza building in Bangladesh killed at least 1 132 workers.[5] This tragic accident raised a global concern on poor labour conditions faced by workers around the world. This event led to the response of States such as France which passed its “Duty of care” law in March 2017.[6]

The OECD has long been an actor in the field of responsible business conduct to address the issues of human rights violations by industrial activities. As early as 1976, it published its Guidelines for Multinational Enterprises (the Guidelines). These were originally adopted as part of the Declaration on International Investment and Multinational Enterprises.[7] Under the OECD Guidelines, there is no precise definition of a “multinational enterprise”. Multinational enterprises “usually comprise companies or other entities established in more than one country and so linked that they may co-ordinate their operations in various ways”.[8] The Guidelines are “a set of recommendations on responsible business conduct addressed by governments to multinational enterprises operating in or from adhering countries.”[9] They are not legally binding. They provide voluntary principles and standards for responsible business conduct in a variety of areas including employment and industrial relations, human rights, environment, the fight against corruption, consumer interests, science and technology, and competition.[10] However, it must be noted that human rights were only introduced in the Guidelines in 2011. John Ruggies’ United Nations Guiding Principles on Business and human rights inspired this chapter and the Guidelines language was also aligned with these Principles.[11] United Nations define human rights as the “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.”[12] This is a broad definition that is globally recognised.

The Guidelines remind States of their obligation to protect human rights[13]. In addition, in its Chapter IV, the Guidelines draft a frame of “recommendations”[14] for multinational corporations to respect human rights in their supply chains but also of the people impacted by their activities. Thus, enterprises should in accordance with international and national law: “Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved; Within the context of their own activities, avoid causing or contributing to adverse human rights impacts and address such impacts when they occur; Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts; Have a policy commitment to respect human rights; Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts; Provide for or co-operate through legitimate processes in the remediation of adverse human rights impacts where they identify that they have caused or contributed to these impacts”.[15]

To go further than just stating voluntary principles, the Guidelines were reviewed in 1984 to create a built-in implementation mechanism known as “National Contact Points” (NCPs).[16] This is the only tool of its kind. Nevertheless, it was only in the 2000 review that a Procedural Guidance on the role and functions of NCPs was laid down. It reinforced their role to deal with all matters relating to the Guidelines. Thus, their main role is “to further the effectiveness of the Guidelines by undertaking promotional activities, handling enquiries, and contributing to the resolution of issues that arise from the alleged non-observance of the Guidelines in specific instances”.[17]

Governments adhering to the OECD Guidelines are required to set up NCPs. To this date, 48 countries have adhered to the Guidelines (not all of them are OECD members) and report to have implemented an NCP. Almost twenty years have elapsed since the effective launch of the practice of NCPs. Therefore, we can wonder whether NCPs have fulfilled their mission when it comes to ensure the respect of human rights through the Guidelines and become the key mechanism they were aiming to be. If the OECD has created a mechanism that contributes to ensuring the respect of human rights (I), the mechanism faces several shortcomings (II).

A mechanism contributing to ensure the respect of human rights

NCPs contribute to ensuring the respect of human rights through their promotional activities (A) and by addressing issues of non-observance with the Guidelines (B).

 NCPs’ active role in promoting the respect of human rights

NCPs handle enquiries but also undertake promotional activities to enhance the implementation of the Guidelines and a fortiori ensure the respect of human rights by companies. To achieve this goal, NCPs have developed a range of materials often available on their website. For instance, they publish user guides providing stakeholders with substantial background information and translations of the Guidelines.[18] To develop such materials, NCPs sought advice from business, labour and civil society in order to better include their vision and experience. Some NCPs also issue press releases to highlight related activities and events.[19] Some NCPs also provide in-house presentation to companies.[20] In this way, they walk the talk and contribute actively to promote notably the respect of human rights among multinational enterprises.

NCPs have also been promoting the OECD Due Diligence Guidance for Responsible Business Conduct since its launch in June 2018.[21] This Guidance highlights the needs to conduct due diligence and helps corporations to remedy situations where human rights are at stake. Under this Guidance, due diligence focuses on the impact on people and not the enterprise. As such, it seeks to “identify, prevent, mitigate and account for how actual and potential adverse impacts are addressed”.[22] The Guidance places right-holders as the most important stakeholders when there are actual or potential impacts on human rights. This Guidance was conceived to help multinational companies implement the Guidelines, which are often perceived as too complex. Therefore, this is a useful and practical tool for NCPs to use and promote. Additionally, in order to ease stakeholders to raise issues, some NCPs have produced brochures, manuals and documents explaining the specific instance procedure.[23]

By communicating on the Guidelines, NCPs aim at helping stakeholders and more particularly enterprises to tackle the issue of the respect of human rights and how to conduct due diligence within their activities. Therefore, by promoting the Guidelines, NCPs directly contribute to promote and ensure the respect of human rights among all stakeholders. It must be noted that the Guidelines have come a long way and are still in the process of being implemented. Nevertheless, without NCPs, we can argue that the Guidelines would have not had the same impact.

A mechanism providing stakeholders with an alternative mean of action

In addition to their promotional activities, NCPs are entitled to resolve issues arising from the alleged non-observance of the Guidelines. Indeed, NCPs must offer a “forum of discussion”[24] and assist interested stakeholders concerned by the issue at stake to deal with the concern raised in a “timely and effective manner and in accordance with the applicable law”.[25] We must keep in mind that NCPs are not a judicial body and specific instances are not legal cases.[26]

NCPs have created an alternative mean of action for issues that would specifically infringe the Guidelines. This mechanism aims at handling the matter outside court in a more effective way. As such, the Procedural Guidance laid down a three steps procedure: initial assessment, support and conclusion. In the initial assessment phase, NCPs evaluate whether the issues raised merit further examination and either accept the case or publish a statement explaining why such a specific instance has not been accepted. If the specific instance is accepted, NCPs must support both parties by offering their “good offices”, that is to say, dialogue, mediation and conciliation services. To conduct the process, NCPS must consult the parties but may also seek advice from relevant authorities, or representatives of the business community, worker organisations, other NGOs or relevant experts. With the agreement of the parties, NCPs can facilitate access to conciliation or mediation. Even though governments benefit from flexibility when it comes to the organisation of their NCPs, they should function “in a visible, accessible, transparent and accountable manner”.[27] To ensure a functional equivalence, NCPs should deal with specific instances in a manner that is “impartial, predictable, equitable and compatible with the Guidelines”.[28] The procedure remains confidential at all time. Finally, after consulting with the parties, a statement regarding the issues raised in the case, the support offered and the outcomes are published. Each NCP must settle, in accordance with the Procedural Guidance, its own internal rules regarding the proceedings.[29]

With such procedure, the intent was to provide a quicker and less expensive alternative. Indeed, NCPs should aim at concluding the procedure within 12 months from receipt of the specific instance. However, the timeframe may need to be extended according to the circumstances. NCPs have quite achieved this goal as approximately 30% of initial assessments reported since 2011 were published within the indicative timeframe of 1-3 months and approximately 85% of them were published in under 9 months.[30] The more complex specific instances may take longer to be concluded, especially if several NCPs are involved. This mechanism proved to be a quite effective alternative as it achieved a 56% rate of agreement between 2000 and 2015 for the issues that passed the initial assessment phase.[31]

Additionally, as a soft law mechanism, an NCP cannot impose sanctions, directly provide compensation nor compel parties to participate in a conciliation or mediation process. Nonetheless, this mechanism can generate important consequences. For instance, some NCPs make final statements, which include tailored-recommendations to enterprises. Determinations may also be issued in their final statements. In this way, NCPs can share their comments on whether a company observed the Guidelines or not. As NCPs’ statements are public, they can have reputational impacts for companies and encourage them to adopt responsible business conduct. For instance, in 2001 a Canadian mining company, First Quantum, was the targeted party of a specific instance because of the displacement of local communities in Zambia.[32] The Canadian and Swiss NCPs adopted a resolution demanding immediate ceasing of displacements, that previously displaced communities be relocated to their former territories and that better communication be maintained between the company and local communities. This specific instance helped to effectively handle the matter in a peaceful way.

Thus, NCPs provide multinational corporations with a way to address the non-respect of human rights, which is crucial for their reputation and financial health. According to a 2018 study, 66% of U.S. consumers and 80% of U.K. consumers say they have stopped using certain products or services because the company’s response to an issue does not support their personal views.[33] Therefore, by failing to respect human rights and address the issue, companies can lose clients. NCPs may also have an impact on governments’ decision process or even in their choice to provide diplomatic support.[34]

Looking at the numbers, we can say that NCPs were successful in promoting responsible business conduct, especially when it comes to the respect of human rights. As of 2019, over 450 cases have been received by NCPs since 2000.[35] In 2016, human rights represented 24% of the specific instances handled since the implementation of NCPs, that is to say, the second issue addressed by this mechanism after the industrial relations.[36] But, it must be noted that cases with a human rights element accounted for over 50% of all cases received since 2011.[37] Therefore, NCPs were able to deal with a consequent number of specific instances related to human rights, making it a considerable actor to ensure their respect.

In addition, a recent analysis of a sample of 158 human rights specific instances highlighted several trends emphasizing the evolution of the mechanism in its ability to treat human rights specific instances.[38] Human rights cases were more diverse than in the past. NCPs have handled specific instances dealing with a wide range of human rights issues such as the rights of indigenous peoples,[39] lethal injections, and the right to privacy. This analysis also underlined the diversification of industries against which complaints were brought. It also emphasised the growing role of the Guidelines’ due diligence provisions and the higher admissibility rate for human rights cases than any other kind. Therefore, NCPs are generally an effective mechanism when it comes to addressing issues related to human rights. But how have NCPs managed such outcomes?

NCPs obtained positive outcomes with the use of leverage. In ECCHR, Sherpa and UGF v. Cargill Cotton [2011], a joint complaint against seven cotton dealers from France, Germany, Switzerland and the United Kingdom was filed for the sourcing of cotton from Uzbekistan cultivated using forced child labour. Children were taken away from school and forced to pick cotton under poor labour conditions during the harvest season. In addition, very little money was paid to the families but rather transferred to the State. The complainants argued that companies should have been aware of the issue of child labour in Uzbekistan due to their intensive trade relations with a state-owned entity, and could be held accountable for their role in supporting and maintaining the system of forced child labour. Consequently, companies were deemed to have infringed the Chapter IV of the Guidelines. In the end, several agreements were reached with the multinational enterprises involved in the sourcing of the products. Into the bargain, the attention of the industry was drawn to this issue. Several years later, in a follow-up evaluation, the European Centre for Constitutional and Human Rights (ECCHR) concluded that even though the commitment of companies and the media coverage diminished over time, the submission of the specific instances had encouraged traders to take some steps to pressure the Uzbek government to put an end to forced labour. The report also noted that these specific instances triggered investment banks to monitor forced labour issues in Uzbekistan.[40]

NCPs also stressed the importance of highlighting the public outcome to companies. The most important factor cited in encouraging the engagement of parties within the NCP process was the practice of attaching consequences to NCP proceedings by way of determinations or through specific recommendations.[41] According to a 2015 OECD Watch study, 77% of cases with a positive outcome came from NCPs that indicated they would make determinations on whether the multinational enterprise respected the Guidelines if mediation failed.[42] Between 2011 and 2015, about 50% of concluded specific instances included recommendations and about 25% included determinations within their final statements.[43]

In some instances, which did not result in an agreement between the parties, positive outcomes were nevertheless achieved such as clarification of the expectations under the Guidelines and the increased use of leverage by multinational companies and investors to promote responsible business conduct.[44]

Even in a few cases where further examination was not accepted, an external agreement was reached (judicial proceedings, negotiations, etc). NCPs are deemed to influence the resolution of issues in such cases. For instance, in Action Aid Denmark v. Arla Foods [2014], ActionAid Denmark brought a complaint to the Danish NCP against Arla Foods regarding its need to undertake social, environmental and human rights due diligence as it planned to expand its activities in sub-Saharan Africa. The plaintiff had been communicating with Arla Foods for many years to highlight the adverse impacts of exporting subsidised milk powder from Europe. However, four months after the matter was brought to the Danish NCP, the parties managed to reach an agreement to ensure Arla’s compliance with international human rights standards in its activities in developing countries. Both parties recognised that the submission of the specific instance to the NCP contributed to improving significantly the dialogue between the parties.

Even though final statements are not legally binding, follow-up plans often accompany the recommendations and lead to significant results, such as: update of company’s policies, remediation of adverse impacts or strengthened relationships between parties.[45] Specific instance proceedings have resulted in stronger human rights policies and due diligence processes in a number of companies.[46] Approximately 36% of specific instances accepted for further examination between 2011 and 2015, resulted in an internal policy change by the company at stake, contributing to potential prevention of adverse impacts in the future.[47] For instance, in Centro de Derechos Humanos y Ambiente (CEDHA) v Nidera [2011], an issue was brought to the Dutch NCP about an agricultural company for alleged non-observance of worker’s rights and unsafe working conditions. The process resulted in an agreement between the parties and the enterprise established a human rights policy and a human rights due diligence procedure. A follow-up mission conducted two years later confirmed that the company had complied with the agreement and that the working conditions had improved.

Thus, NCPs are an effective mechanism that contributes to ensuring the respect of human rights as they not only promote them through the Guidelines but also address issues. As such, it created an alternative mean of action spurring a change within multinational enterprises in both their conduct and internal rules. NCPs advocate for a more responsible business conduct within enterprises but also involve governments in this path.

A mechanism facing several shortcomings

Even though NCPs have come a long way and demonstrate good results in ensuring the respect of human rights, they still need improvements. The mechanism has not achieved its full potential: it faces shortcomings with its structure (A) and its performance (B). To achieve this potential, further implementation and a review are necessary (C).

Shortcomings related to the structure of NCPs

Two main shortcomings have been identified concerning the structure of NCPs: the lack of resources and the lack of knowledge to handle issues of non-observance with the Guidelines.

Each NCP is responsible for fulfilling its missions and depends on the will of its government. Adhering governments are responsible for the settlement of their NCP and availability of resources. Out of the 48 NCPs, 8 are not active (not even conducting promotional activities), 13 are lacking procedure, 1 does not exist and around 16 do not engage adequately with stakeholders.[48] The system is still not completely implemented and is lacking structure. Until 2015, half of all specific instances had been handled by just 6 NCPs, and 14 NCPs had not yet received a specific instance.[49] Therefore, a few NCPs cover most specific instances and the system is not working through its NCPs network as it should; limiting the ability of the mechanism to work at its full potential.[50]

According to the OECD, the lack of resources is one of the main challenges for many NCPs.[51] Not only the OECD acknowledges this point, but also the NCPs themselves and their stakeholders. However, by adhering to the Guidelines, countries are required to provide their NCPs with sufficient human and financial resources.[52] A few NCPs are well-resourced, but many others lack sufficient human and financial resources.

Concerning the lack of human resources, in most NCPs staff carry other responsibilities, functions. This is most often the case with NCPs based in ministries of trade or economy. Only 26 NCPs have at least one full-time staff member solely devoted to the NCP.[53] Many NCPs are composed of one individual, working only part-time on the NCP-related tasks, without mentioning the high staff turnover. The lack of recognition and support for NCPs within adhering governments is an element that contributes to explain why few resources are allocated. NCPs are often not known by other government agencies or even within their own ministry, or when known, their function is not fully understood.

This lack of sufficient resources translates into a lack of knowledge and skills development that prevents them from properly fulfilling their missions. This becomes quite a challenge as NCPs are required to address increasingly complex and sophisticated issues.[54] Nonetheless, in recent years, significant efforts have been made by some governments to provide more resources. For example, some governments provided a budget to hire external experts to conduct trainings in mediation and problem solving to the NCP’s staff. Unfortunately, they remain a minority.

Moreover, due to the high staff turnover, there is also a lack of institutional knowledge and management. NCPs are facing shortcomings in their functioning, whether due to the absence of procedural rules or the inadequate record-keeping[55]. Taking all these elements into consideration, all NCPs are not able to properly fulfil their missions as shortcomings have an impact on their performance.

NCPs’ performance-related shortcomings

Even though NCPs have taken important steps in promoting the Guidelines as a useful tool for all stakeholders, their performance remains uneven. Most NCPs have focused their efforts on their promotional activities in order to raise awareness of the Guidelines amongst different stakeholders. However, there is an asymmetry of the information varying according to the country. In some, the Guidelines are known by enterprises, trade unions and civil society representatives, but are less well known in others.[56]

Additionally, the Guidelines are often only known by CSR practitioners or business human rights experts. Also, the level of knowledge of the Guidelines will vary depending on the size of the enterprise. If major listed multinational corporations may be aware of the Guidelines, this is not necessarily true for small and medium enterprises.[57] The promotional activities are mainly focused on major multinational enterprises.

The lack of time and sufficient resources limit the ability of NCPs to maintain an on-going involvement with every specific instance.[58] In most cases, NCPs do not get much engaged in the after-process. The Norwegian NCP notes that parties have expressed a wish for greater NCP involvement in follow-up evaluations. Parties are particularly interested in getting NCPs to monitor whether the Guidelines are more effectively implemented by a company after the specific instance. Greater involvement in the after process would greatly contribute to enhancing the performance of NCPs.

Adhering governments play a crucial role in the success of this mechanism. They are responsible for informing the public on the availability of the information. To fulfil this mission, websites have been created and contribute to making NCPs visible. In this digital age, this is the most obvious way to contact NCPs but also for them to spread out their communication about the Guidelines and inform the public on the role and procedure of such mechanism. As a matter of fact, most NCPs have launched a website. However, they do not provide the same quality of navigation and information. Some even lack relevant information and do not provide basic contact details.[59] This significantly impacts the performance of the NCPs.

Even though NCPs abide by the same rules, they vary in the practice. They do not uniformly apply the Procedural Guidance. This has contributed to making the performance of NCPs uneven when handling specific instances. Stakeholders have stressed that the accessibility of NCPs may be challenged by the statute of limitations or overly restrictive definitions concerning “multinational enterprise”, “adverse impact” or even “business relationship”. Some NCPs also adopt an overly stringent interpretation of the “material and substantiated” requirement of an issue. Stakeholders have been highlighting not only the insufficient use of recommendations or determinations in NCPs’ final statements but also the lack of clear or equitable procedures. Stakeholders have concerns when it comes to the impartiality of the NCPs.[60] If its stakeholders challenge the mechanism, it could lead to fewer issues raised; diminishing the influence of NCPs to ensure the respect of human rights.

A necessary further implementation and review

The 2018 OECD Global Forum on Responsible Business Conduct emphasised the need for further implementation. NCPs could be one of the best actors to advocate the respect of human rights within multinational enterprises through the Guidelines as they can have a more direct contact with their national enterprises. However, the enterprises do not sufficiently get involved in the process and the shortcomings of the NCP mechanism limit its reach. Taking the Uzbek cotton case,[61] there was a lack of sufficient involvement by multinational enterprises. Indeed, even if positive outcomes were reached including further respect of the ban on child labour, the 2012 cotton harvest remained marked by continued state-sponsored forced labour of children and adults. If the multinational companies had preached a strong public position against child labour, it could have had a more efficient impact on the regime to stop such situation. According to ECCHR, the cessation of business relationships with the Uzbek cotton industry remains the only adequate measure to apply further pressure on the Uzbek government and ensure that European companies do not contribute to human rights violations in Uzbekistan.

Even if the NCP system is quite effective in dealing with alleged non-observance of the Guidelines especially when it comes to a violation of human rights, the mechanism is not able to provide sufficient protection. Indeed, the lack of protection is one concern that has been raised. Among 250 specific instances filed by NGOs or communities since 2000, at least 25% involved retaliation against complainants or others working on the same situations of harmful business activity. This number is said to be a very low estimate, as most retaliations are unreported.[62] This can be a factor that can reduce the performance of the NCPs. Some sort of protection should be provided for those who raise an issue.

Conclusion

The 2018 Global Forum for Responsible Business Conduct acknowledged that NCPs have known a “remarkable improvement”. NCPs have been actively promoting the Guidelines and able to address over 450 cases since 2000. They have shown great results notably when it comes to ensuring the respect of human rights. However, is it enough to make it a key mechanism? Looking at all the shortcomings the system is facing, it is too early to affirm so. NCPs have not achieved their full potential yet. The Guidelines need further implementation and should be brought to the attention of the enterprises in a global way and regardless of their size. Multinational enterprises and governments must take up the topic. The future of this mechanism will also depend on the governments and their ability to provide NCPs with sufficient and adequate resources, whether they are financial or human. A review of the Guidelines may also be necessary to not only address the shortcomings of the Guidelines and NCPs but also include new topics that need to be better covered such as the Rights of Indigenous People. Nevertheless, this is definitely a mechanism that we should keep an eye on and spread the word.

Sources:

[2] Kathia Martin-Chenut, Droits de l’homme et responsabilité des entreprises : les ‘Principes Directeurs des Nations Unies’ (DRES 232, 2013).

[3] For the purposes of this article, the terms ‘enterprises’, ‘corporations’ and ‘companies’ are used interchangeably.

[4] Pauline Barraud de Lagerie, Les patrons de la vertu (Presses Universitaires de Rennes, 2019) 23.

[5] International Labour Organisation, “The Rana Plaza Accident and its aftermath” (ILO) available at <www.ilo.org/global/topics/geip/WCMS_614394/lang--en/index.htm> accessed 11 January 2020.

[6] Loi relative au devoir de vigilance des sociétés mères et entreprises donneuses d’ordre (27 March 2017, n°2017-399).

This law requires companies meeting certain criteria to draw up and implement a due diligence plan as from 2019. This plan must contain reasonable vigilance measures to identify risks and prevent serious violations of human rights and fundamental freedoms, human health and safety and the environment. In the event of a breach of this obligation, the company may be given formal notice and an injunction may be issued if it persists in this breach.

[7] OECD, OECD Guidelines for Multinational Enterprises (Policy Brief, 2001) 1 available at <http://www.oecd.org/investment/mne/1903291.pdf> accessed 8 July 2019.

[8] OECD, OECD Guidelines for Multinational Enterprises – Responsible Business Conduct matters (2014) 17 available at <https://mneguidelines.oecd.org/MNEguidelines_RBCmatters.pdf> accessed 8 July 2019.

[9] Ibid.

[10] OECD, OECD Guidelines for Multinational Enterprises (2011) 3.

[11] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 13 available at <https://mneguidelines.oecd.org/OECD-report-15-years-National-Contact-Points.pdf> accessed 8 July 2019.

[12] United Nations, “Human Rights” available at<www.un.org/en/sections/issues-depth/human-rights/index.html> accessed 28 June 2019.

[13] OECD, OECD Guidelines for Multinational Enterprises (2011) 31.

[14] See § 3.

[15] OECD, OECD Guidelines for Multinational Enterprises (2011) 31.

[16] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 11.

[17] Ibid 3.

[18] See the Dutch NCP which published its translation of the Guidelines and provided enterprises with tips and clarifying examples to explain the concept of due diligence. Dutch Ministry of Foreign Affairs, Dutch translation of the OECD Due Diligence Guidance for RBC (19 June 2019) available at <www.oecdguidelines.nl/latest/news/2019/06/19/dutch-translation-oecd-due-diligence-guidance-for-rbc> accessed 6 July 2019.

[19] See Dutch Ministry of Foreign Affairs, “Dutch NCP Newsletter January – April 2017” (6 July 2017) available at <http://nieuwsbrief.rijksoverheid.nl/847/Actions/Newsletter.aspx?messageid=23227&customerid=475158&password=enc%5F6A664E373665366259574766%5Fenc> accessed 6 July 2019.

[20] See United Kingdom Government, “UK National Contact Point (UK NCP) for the OECD guidelines for multinational enterprises” available at <www.gov.uk/government/groups/uk-national-contact-point-for-the-organisation-for-economic-co-operation-and-development-guidelines> accessed 6 July 2019.

[21] The OECD Due Diligence Guidance for Responsible Business Conduct was adopted on 31 May 2018 at the OECD Ministerial Council Meeting but launched on 20 June 2018 at the OECD Global Forum for Responsible Business Conduct.

[22] Amnesty International, OECD Watch, “The OECD Due Diligence Guidance for Responsible Business Conduct: A briefing for civil society organisations on the strongest elements for use in advocacy” (June 2018) 4 available at <www.oecdwatch.org/wp-content/uploads/sites/8/2018/06/The-OECD-Due-Diligence-Guidance-for-Responsible-Business-Conduct.pdf> accessed 6 July 2019.

[23] See Direction Générale du Trésor, « Comment saisir le PCN français ? » (12 July 2017) available at <www.tresor.economie.gouv.fr/Ressources/6373_Que-signifie-la-recevabilite-dune-circonstance-specifique> accessed 7 July 2019.

[24] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 12.

[25] Ibid 100.

[26] See § 14.

[27] OECD, OECD Guidelines for Multinational Enterprises (Policy Brief, 2001) 4.

[28] OECD, “Structures and processes of national contact points for the OECD Guidelines for multinational enterprises” (2018) available at <https://mneguidelines.oecd.org/Structures-and-procedures-of-NCPs-for-the-OECD-guidelines-for-multinational-enterprises.pdf> accessed 4 July 2019.

[29] See French National Contact Point, “NCP Bylaw” (17 March 2014) available at <www.tresor.economie.gouv.fr/Ressources/File/404282> accessed 9 July 2019.

[30] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 53.

[31] Ibid 32.

During this period, of the 366 specific instances recorded, 206 have been reported as concluded, 110 were reported as not accepted for further examination and 50 were still in progress.

[32] OECD, First Quantum Minerals Ltd and Oxfam Canada (database, 2001) available at <http://mneguidelines.oecd.org/database/instances/ca0001.htm> accessed 12 january 2020. Even though human rights were only added in 2011 in the OECD Guidelines for Multinational Enterprises, it is interesting to notice that NCPs were tackling the issue even before through the scope of environment/general policies.

[33] Marjorie Benzkofer, Navigating Zero Gravity, (Fleishman Hillard, 3 October 2018) available at <https://fleishmanhillard.com/2018/10/reputation-management/navigating-zero-gravity/> accessed 4 July 2019.

[34] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 29.

[35] OECD, “Progress Report on National Contact Points for Responsible Business Conduct” (Meeting of the OECD Council    at Ministerial Level, 2019) 6 available at <www.oecd.org/mcm/documents/NCPs%20-%20CMIN(2019)7%20-%20EN.pdf> accessed 9 July 2019.

[36] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 12.

[37] OECD, “Progress Report on National Contact Points for Responsible Business Conduct” (Meeting of the OECD Council    at Ministerial Level, 2019) 6.

[38] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 40.

[39] See Norwegian Society for the Conservation of Nature / Friends of the Earth Norway and Forum for Environment and Development v Cermaq ASA [2009]: This specific instance was dealing with the alleged non-observance of the Guidelines in the salmon farming industry in Canada and Chile. A constructive mediation amongst the parties led to a joint statement. This statement resulted in changes to Cermaq’s corporate responsibility code of conduct, which were taking into account the Guidelines recommendations. This policy change included a clearer inclusion of human rights for suppliers, a commitment to seek to enter into mutually beneficial agreements with indigenous peoples and a commitment to further develop efforts to minimise the risk of inflicting serious environmental damage.

[40] ECCHR, Sherpa & UGF v. Cargill Cotton (OECD Watch) available at <https://complaints.oecdwatch.org/cases/Case_195> accessed 2 July 2019.

[41] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 57.

[42] Ibid.

[43] Ibid.

[44] Ibid 13.

[45] Ibid 27.

[46] See also ADHRB v. Formula One World Championship Ltd. [2014]: This specific instance was brought to the UK NCP regarding the non-observance of the human rights chapter of the Guidelines in connection with the organisation of the Formula One (F1) Grand Prix in Bahrain. The NCP provided external mediation that helped the parties find an agreement in which Formula One publicly committed to respecting internationally recognised human rights in all of its operations and announced the development and implementation of a due diligence policy to analyse and mitigate human rights impacts in host countries.

[47] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 12.

[48] Numbers presented at the 2018 OECD Global Forum on Responsible Business Conduct.

[49]  OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 29.

[50] It must be noted that NCPs are expected to share their best practices and feedback in order to continuously improve the mechanism. In 2001, the annual meeting provided a unique opportunity for NCPs to share their experiences during the first year of activity and to reflect on directions for future activity. Since then, NCPs have held meetings at the OECD in Paris every single year but also ad hoc events. Thus, NCPs regularly engage in peer learning. In addition, the system relies on peer reviews in order to highlight achievements of individual NCPs, identify areas in need of improvement and set out specific recommendations to be followed-up within a certain timeframe. To assess their performance, NCPs are required to publish annually their activity report. With such a mechanism, more mature NCPs assist others.

[51] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 16.

[52] Ibid 75.

[53] OECD, “Progress Report on National Contact Points for Responsible Business Conduct” (Meeting of the OECD Council    at Ministerial Level, 2019) 5.

[54] OECD, “Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015” (2016) 13.

[55] Ibid 17.

[56] Ibid 14.

[57] Ibid.

[58] Ibid 58.

[59] Ibid 15.

[60] Ibid 13.

[61] See § 18.

[62] OECD Watch, “The role of the OECD National Contact Points in protecting Human Rights defenders” (10 June 2019) available at <https://www.oecdwatch.org/wp-content/uploads/sites/8/2019/06/Reprisals-NCP-system.pdf> accessed 8 July 2019.