Update of OECD Guidelines for Multinational Enterprises: Informal expert meeting on human rights issues 25 January 2011, 09:00-13:30 OECD Conference Centre, Paris Summary of remarks of invited experts 1. Professor James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples Indigenous peoples rights as affirmed by the UN Declaration and other instruments: part of the contemporary human rights system In the past it was queried whether indigenous peoples rights were human rights under international law, because they were not seen as typical human rights (in particular, because such rights may attach to groups rather than individuals). However, over decades, a genuine consensus on indigenous peoples rights has developed amongst states, and indigenous peoples collective rights are now agreed to be the subject matter of human rights. Indigenous peoples collective and individual rights are affirmed in international instruments, including the UN Declaration on the Rights of Indigenous Peoples. This Declaration was adopted in 2007 by the UN General Assembly by a positive vote of an overwhelming majority of UN member states. Only 4 states voted against the Declaration at that time, and each of these states has now reversed its position. President Obama announced the USA s endorsement of the Declaration in December 2010. Of 11 states abstaining from the 2007 vote, at least 2 have now formally stated their full endorsement of the Declaration and others have stated that their abstentions did not reflect any objection to the basic content of the Declaration in principle. The UN Declaration on the Rights of Indigenous Peoples thus represents consensus amongst states and frames indigenous peoples rights within the rubric of human rights. Indigenous peoples rights to land and resources, self-government, culture and equality are human rights within the contemporary understanding of human rights in the UN system. So any discussion of the responsibilities of multinational enterprises in relation to human rights must include indigenous peoples rights, as articulated by the UN Declaration on the Rights of Indigenous Peoples, and as consistently protected through regional-level human rights mechanisms. 1
The need for differentiated treatment of the human rights of indigenous peoples in accordance with articulated standards In dialogue with government officials and CEOs, it is frequently stated, We respect the human rights of all, not just the rights of indigenous peoples. This intended to mean that no distinction is drawn between indigenous people and others, but in practice this is a way of ignoring the specific rights of indigenous peoples as expressed in the UN Declaration on the Rights of Indigenous Peoples. Of course there is an apparent conceptual tension, in that human rights are universal, but certain articulated rights attach only to specific groups. However, this tension is resolved by the fact that indigenous peoples rights are grounded in fundamental human rights precepts of universal applicability, and the function of the special regime of indigenous peoples rights is to contextualize these and articulate a series of specific standards with respect to the realities and world views of indigenous peoples. For example, the right to property is included in the Universal Declaration of Human Rights and various regional human rights instruments. In these regimes, the right to property comprises various elements, such as the right to control those things that one legitimately possesses. However, for indigenous peoples, the right to property assumes a specific character. The American Court of Human Rights, on the basis of the American Convention on Human Rights, has found that, for indigenous peoples, the right to property is based on historical use and occupancy of land, and includes cultural and spiritual dimensions. This illustrates how universal human rights have a particular meaning for indigenous peoples. Likewise, historically, understandings of the human right to equality have been based on implicit assumptions that all rights-holders are individuals similarly situated within homogenous societies. But for indigenous peoples, it must be taken into account that achieving true equality entails specific regimes in relation to diversity, educational provision, languages, and culture. These must be delivered in line with the particular cultural attributes communal bonds of their peoples, which differ from those of majority society. The human rights to participation in government and self-government also require embodiment in particular arrangements and processes for indigenous people that differ from those of the predominant society. So, is it imperative that this OECD process include indigenous peoples rights within the human rights that businesses have responsibility for, and need to conform to. The need to provide more specific guidance on indigenous rights within the OECD Guidelines The current draft Commentary to the Guidelines refers only to certain human rights instruments the Universal Declaration of Human Rights, the 2
International Covenant on Civil and Political Rights, and the International Covenant on Economic and Social Rights. This carries the mistaken implication that all other human rights instruments (e.g. UN Declaration on the Rights of Indigenous Peoples, ILO Convention 169) are secondary to the instruments that are explicitly mentioned. Extractive companies, for instance, already know that they are likely to encounter indigenous peoples issues in many operating locations. Such companies will not deal with those issues effectively if they say, We respect the human rights of all. Indeed, such companies will make significant missteps if they do not engage adequately with indigenous peoples rights standards and issues. Mining, oil and gas companies require much greater clarity on the basic standards that are relevant and which they need to observe. For example, in relation to indigenous peoples, human rights due diligence requires an assessment of land title which will not be self-evident to companies in many cases. Thus, for example, if they remain unaware of the human rights of indigenous peoples, companies might simply enter into an agreement with the relevant government to remove indigenous people from the lands within their concession, instead of consulting and obtaining the informed consent of the indigenous people in occupation of the land. Eventually this may lead to disruption of operations, and shareholder agitation. Such a pattern can be observed at present across many jurisdictions, many of which I have visited in my capacity as UN Special Rapporteur and involving companies based in OECD countries. The principle of free, prior and informed consent: The IFC precedent in the making Parallel to this OECD process, the International Finance Corporation s (IFC) Performance Standards, which must be an important point of reference, are undergoing review. IFC Performance Standard Number 7 is dedicated to indigenous peoples rights. In the most recent draft of the revised Performance Standards, Performance Standard 7 includes a robust recognition of indigenous peoples rights that is more or less in line with ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples, and which includes the principle of free, prior and informed consent (FPIC), in particular contexts. FPIC has been a contentious issue for many countries, for the reason that it has been thought that observing it could, for instance, obstruct the progress of development projects that might bring benefits to the country as a whole. However, the understanding of FPIC has developed to avoid extremist interpretations, and it does not entail that indigenous peoples have an absolute right of veto over all matters. FPIC is the antithesis of the imposition, violence, and expropriation to which indigenous peoples have historically 3
been subject. FPIC requires consensus, based on mutual understanding, dialogue, and with consent as the objective of consultation. Under FPIC, indigenous consent should be a requirement in certain circumstances. In the draft revised IFC Performance Standards, consent is a requirement where: o i) A project is within indigenous peoples territories, as defined by traditional use and occupancy. Here, to satisfy FPIC additionally requires a process of negotiation and a properly documented agreement; o ii) A project requires any removal of indigenous peoples o iii) A project affects important cultural resources of indigenous peoples. This revised IFC standard in relation to FPIC sets an important precedent, and should be duly considered by this OECD Guidelines Review Working Party. The need for consultations with indigenous peoples on the OECD Guidelines review process Regarding this OECD Guidelines Review process, it must be observed that, indigenous peoples are clearly interested stakeholders in the process: multinational enterprises are affecting the lives of indigenous peoples in very significant ways, across the world, on a daily basis. Yet there has, so far, been no consultation directly with indigenous peoples as part of the process, concerning the proposed human rights chapter or otherwise. Neither should my own participation in this meeting today be viewed as a proxy for consultation with indigenous peoples. I do not represent indigenous peoples, either specifically or generally. Proper consultation with indigenous peoples in this process needs to be undertaken. The IFC, even if imperfectly, did engage in direct consultation with indigenous peoples over precisely these issues, which has led to the development of the current draft, including FPIC. The need for effective dispute resolution mechanisms Regarding implementation of the Guidelines, available dispute resolution mechanisms may not be sufficient in all cases. In the UN system, there are various non-judicial mechanisms which can make a determination of responsibility for human rights abuses, but which have little capacity to facilitate resolution of disputes. Most such mechanism in practice to little more than issue wofor example, by issuing through the use of condemnatory words. As UN Special Rapporteur on Indigenous Peoples Rights, I have very little capacity to undertake dispute resolution. Likewise, the UN treaty monitoring bodies lack the necessary resources. It is thus imperative that the OECD Guidelines make proper provision in this regard. Conflicts involving indigenous peoples human rights and corporations are typically complex, 4
requiring expertise of various kinds. If National Contact Points (of the OECD) are to be effective in mediation, they must be equipped with necessary competences and capacities. ILO dispute resolution processes should be consulted as instructive examples. 2. Marta Mauras, Member, UN Committee on the Rights of the Child The UN Convention on the Rights of the Child (UNCRC) is the most ratified human rights treaty, with 193 states parties. Only Somalia and the US have not ratified. There are two optional protocols to the UNCRC. One relates to the sale of children, prostitution and pornography, which has been ratified by 141 states. The second protocol relates to children in armed conflict, and has been ratified by 139 states. Both date from 2000. The UNCRC addresses the full scope of the human rights of the child: political, civil, economic, social and cultural. Some articles refer to the private sector directly, for example, in their capacity as service providers. Under UNCRC, there is an obligation on the state to protect against violations perpetrated by state agents or any other actors, including the private or business sector, and on the latter to respect child rights. Several articles of UNCRC refer explicitly to the business sector: these include articles relating to discrimination by service providers and social welfare organizations; Art. 17 concerning the mass media industry; Art. 18 relating to day care, and the right of working parents to be provided with it, and thus the duty of the state and employers to provide it; and Art. 24 concerning environmental contamination, food and nutrition, amongst others. The UNCRC Optional Protocol relating to the sale of children refers to the role of the state to protect against abuses by state and non-state actors. It recognizes transnational offences and states obligation to pursue perpetrators of offences outside their own jurisdiction. The UN Committee on the Rights of the Child has observed that the state must prevent service providers from any discriminatory action, mentioning in particular pharmaceutical companies and internet services. In the Committee s observations and recommendations to national reports, it has addressed the responsibility of corporate actors in the mining, agricultural, pharmaceutical and media sectors to protect and respect child rights. As an example, in its concluding observations on Bolivia in 2009, the Committee held that the state must ensure that private investors are aware of the rights of the child and that they operate so as to protect the local community and their children, as regards environmental and social issues. The Committee has also recommended that, as states build their capability to attract and support investment, the regulatory framework concerning social and environmental issues needs to be similarly developed. 5
In relation to observations and recommendations to national reports of industrialized countries such as Denmark, Japan, Norway, New Zealand and Singapore, the Committee has recommended that the state take steps to become aware and regulate how companies under their jurisdiction operate abroad. The Committee has also recommended, under the Optional Protocol regarding children in armed conflicts, that states take legal and administrative measures to ban weapons exports to final destinations where it is known that children can be recruited to participate in armed conflict. The Committee has begun to apply the framework developed by the UN SRSG and approved by the Human Rights Council. The Committee is doing preparatory work towards the issue of a General Comment on children s rights and the business sector. Albeit the current OECD Guidelines review process is already advanced, and it would have been preferable to participate at an earlier stage, the Committee still welcomes the opportunity to contribute the following comments to the December draft: The right to be protected against child labour (which is addressed by UNCRC Art.32) is currently the only children right mentioned in the draft revised Guidelines. Though this is crucial, it is not sufficient for the Guidelines only to address child labour as the action of the business sector can affect all rights. Furthermore, the content and requirements of Art. 32 CRC (which mentions, for example, not only hazardous work but also the conditions of work, including that it should not interfere with the child s health, education or development) go far beyond what is currently included in the language of the draft revised Guidelines. Art.32 CRC also provides for minimum ages for entry, appropriate regulation of any work undertaken by children and the application by the state of penalties for breaches, along the lines of relevant ILO Conventions. Therefore, in the OECD Guidelines Industrial Relations chapter, the clauses addressing child labour should be expanded to cover conditions of work, the right to health and development of the child, and impediments to education. In the UN SRSG s review of UNCRC and its related protocols, the mass media, environmental impacts, pharmaceuticals, internet service providers, tourism and arms supplies were identified as relevant issues addressed by the Convention. All of these and more would need to be covered by the Guidelines. The Committee would fully endorse the comment made by TUAC, the International Coordinating Committee of National Human Rights Institutions, and UN Special Rapporteur on Indigenous Peoples Rights that all UN human rights covenants need to be included and explicitly 6
listed in the revised OECD Guidelines. There is no legal or technical distinction between the instruments included in the International Bill of Rights (i.e. UDHR, ICCPR and ICESCR) and the other UN human rights covenants. There is no hierarchy between first class and second class covenants within the UN human rights framework. The parameters of human rights due diligence, as contemplated in the UN SRSG s second pillar, of the corporate responsibility to respect should be set by the contents of all human rights covenants, not only a subset contained in the International Bill of Rights. Also in the Industrial Relations Chapter, paras.1(b) and 22 should be expanded with language to address the additional issues already indicated above. The definition of human rights due diligence requires strengthening with a requirement that it should be conducted to the maximum of available resources, as is found e.g. in the UNCRC. The UNCRC stands ready to work with the adhering country governments, the Chair, Secretariat and other stakeholders to devise appropriate language in this regard. Regarding the Guidelines Procedural Chapter: germane to the updating of OECD Guidelines, currently the UN HRC is engaged in drafting a third Optional Protocol to UNCRC to provide for a complaints procedure. One issue under debate by member states is whether the procedure should contemplate collective complaints by children. The Committee favours this and, in fact, has recognized collective rights in its General Comment on Indigenous Children. The Procedural Chapter should explicitly reference the role of National Human Rights Institutions in supporting implementation at national level. Transparency of NCP procedures and their competency to handle human rights issues appropriately and effectively is also of interest from a UNCRC perspective. States should discuss with NCPs the transnational impacts of TNCs. To reiterate, children s human rights relevant to corporate responsibility for human rights are not exhausted by the issue of child labour. 7
3. Rosslyn Noonan, Chairperson, International Coordinating Commiteee (ICC) of National Institutions for the Promotion and Protection of Human Rights (NHRIs) and Chairperson, New Zealand Human Rights Commission Role and functions of NHRIs and ICC Our core business as National Human Rights Institutions (NHRIs) is promotion and implementation of human rights. This is our constitutional mandate, and it extends to the private sector and NGOs, and is not restricted to state bodies. NHRIs are relatively new elements in the architecture of the state, having become widespread only within the last 2 decades. NHRIs are key accountability mechanisms within the state, and are not a part of national government, on the contrary, they are required to be independent from it. The unique features of NHRIs under the UN Paris Principles are their broad organizational mandate, human rights focus, and legally guaranteed independence and pluralism. The establishment and functioning of NHRIs in more than 100 countries worldwide has been nurtured by the international human rights law community because, despite the strong platform provided by the UDHR and international human rights law conventions, in practice there has been a gap between the standards they contain and meaningful implementation at national level. According to their UN Paris Principles, NHRIs are required to undertake promotion and protection, for example, through monitoring and reviewing national legislation, by distinction with the office of ombudsman which may lack a promotional function. In addition, NHRIs may have a complaints-handling function. However, it is important to note NHRIs role in offering constructive support to the private sector in meeting the challenges of respecting human rights and applying the necessary standards on a day to day basis. This practical function and experience of NHRIs, with state and private actors, means that they are fully aware that achieving respect for human rights is not always a straightforward matter, and that there are real challenges, for instance, in balancing rights that conflict in a given situation, and in addressing new circumstances brought about by globalization. Over 100 states have NHRIs. More than two-thirds of these are accredited to A-Status for the purposes of the UN Paris Principles. The Paris Principles, which were enacted by a 1993 UN General Assembly Resolution, set minimum standards for NHRIs. Meeting the necessary criteria under the Paris Principles confers on an NHRI the competence to participate at UN Human Rights Council and to speak during HRC proceedings on any item, and also to participate before other UN human rights mechanisms. There is deepening recognition and involvement of NHRIs across UN system, as a result, for example, of their 8
authoritative legal analysis of national situations, and collaboration with governments and civil society to make human rights a reality at national level. Of 42 countries adhering to the OECD Guidelines, 35 have NHRI. Of those 7 currently lacking NHRIs, half have proposals to establish NHRIs. The ICC is the global association and network of NHRIs. The Office of the High Commissioner for Human Rights (OHCHR) serves as the ICC s Secretariat. The UN Secretary-General reports to UN Human Rights Council and the General Assembly periodically on NHRIs. There is thus a high level of formal recognition of NHRIs at international level. The UN SRSG protect, respect and remedy framework acknowledges the role of NHRIs across all three pillars. ICC engagement with business and human rights As a recent example of NHRIs engagement with issues of human rights and business, in October 2010, the ICC s 10 th Biennial Conference was held, on the topic of business and human rights, and NHRIs role within the field. The Conference programme included workshops on issues such as trafficking, procurement, child labour and human rights effects of environmental damage; complaints handling through investigation and conciliation; best practices of NHRIs, such as those of Denmark and Canada, in developing tools to support respect by business of human rights; training provision to business on complying with human rights requirements and best practices. If the OECD makes a commitment to develop further guidance for companies, NCPs and other stakeholders, to support effective implementation of the Guidelines, the ICC is thus well positioned to, and would be willing to contribute. Implementation procedures for the Guidelines Regarding the implementation chapter of the OECD Guidelines, the ICC views it as essential that the current updating and revision ensures the full functionality of the Guidelines, and that they have impact in driving company performance on human rights which, as is well known, has not been the case so far. The ICC therefore urges, in terms of specific recommendations: o Strengthening NCP handling of specific instances o Establishing NCPs peer review in line with general OECD practices o Procedural guidance for NCPs, to align their required practice with all the UNSRSG s criteria for non-judicial grievance mechanisms o More detailed guidance for NCPs on meeting core criteria o Stronger guidance on disclosure around specific instances 9
o A stronger statement on adequate resourcing of NCPs o Establishing an appeal from NCPs on procedural grounds. Consequences for non-compliances. In the experience of NHRIs, while taking a hard line in disputes from the outset can discourage resolution, the potential for there to be a public determination of the issues is a powerful incentive to settle individual cases constructively at an early stage in proceedings. The fall-back option of a legally enforceable outcome is thus often key to a voluntarily agreed resolution. To illustrate, in the New Zealand context, the Human Rights Commission is required to use Alternative Dispute Resolution. If there is no agreed settlement between the parties, the complainant has the option to take the case to a Human Rights Review Tribunal. Parties may however opt to return to mediation once proceedings before the Review Tribunal are issued, instead of seeing contentious proceedings to their conclusion which often happens in practice. Definition of human rights for the purposes of the Guidelines Extending the scope of human rights to all international human rights conventions, not just the international bill of rights (i.e. UDHR, ICESCR and ICCPR). It is imperative that the OECD Guidelines effectively highlight those issues which arise in practice at the ground level. Indigenous peoples rights is one such issue, and there is a compelling basis that they should be explicitly referenced in thegguidelines. The ICC would thus urge that the UNDRIP and ILO Convention No. 169 are explicitly referenced: these are valuable tools in identifying issues companies and state actors need to be aware of to meet their responsibilities as regards human rights, and very many organizations will not otherwise be aware of them. NHRI potential to support Guidelines and need to refer to NHRIs in procedural chapter Most NHRIs are already empowered to handle specific cases of human rights abuse, including in the business and human rights field. NHRIs may also support victims. There is therefore the possibility of parallel proceedings between NCPs and host-country NHRIs. This provides a further reason that the implementation chapter must refer explicitly to NHRIs, in order to alert NCPs to NHRIs existence in host states and possible overlaps in proceedings. In addition, vice versa, it is important to include NHRIs in the chapter, so that, as well as encouraging NCPs to communicate with NHRIs, NHRIs are themselves encouraged to reach out to NCPs at national level, and to renew efforts to engage with domestic and foreign-domiciled businesses. An important benefit for the OECD of engaging with NHRIs is thus that the ICC and NHRIs reach across national boundaries. Related to this, in 10
October 2011, the Asia-Pacific Region of the ICC will hold a Regional Workshop on business and human rights in Korea, which was selected by ICC members because of the activities of Korean-based MNEs spanning across the Asia-Pacific region. To conclude, the ICC and NHRIs want to help the OECD, adhering countries, business, labour and other stakeholders to succeed in making the Guidelines relevant and effective, so it would help you to make us visible within their framework. 4. Lee Swepston, former Senior Adviser on Human Rights, International Labour Organisation Worker and employee The present references only to employees are very limiting and misleading, and as the ILO has recommended the reference should in all cases be to workers. There may be very occasional situations in which the employment relationship itself brings into play the commitment not to violate rights but I cannot think of any instance in which it does that. As an example, it would be useless to prohibit forced labour, child labour and discrimination only for employees, as these are mostly applied against non-employees. Illegal activity usually is not an employment phenomenon, but a work phenomenon. It is difficult to imagine that it is intended that Chapter IV should have a narrower frame of reference than the ILO s basic standards on which it relies, as virtually all of them refer to workers and not employees. It also is difficult to imagine that it is intended to make this chapter have a narrower scope than the proposed new chapter on human rights. It is all the more important to refer to work generally and not just to employment, with the growth of alternative work relationships, in Europe and elsewhere. There are all too many instances in which creative legal arrangements leave workers who should be treated as bona fide employees out in the cold where normal labour law protections would normally operate. The references to workers would make the Guidelines consistent with the IFC and EBRD Performance Standards, the Ruggie framework and the ILO Declaration (though it is not altogether consistent, let us admit but I am no longer an ILO official), as well as with other international human rights instruments including those adopted by the UN, the ILO and the European Union. As concerns human rights more generally, it is important that there be no impression that there is a human rights obligation in general, and workers rights is a separate subject. This might lead one to conclude that workers rights are different from and more limited than human rights, whereas in 11
fact they are a more specialized application of the general protections in the Universal Declaration, the Covenants and others. HIV and AIDS Also in the human rights chapter, references should be to HIV and AIDS. This may seem minor, but the recently adopted ILO Recommendation (No. 200) on HIV and AIDS in the world of work (June 2010) highlights the fact that HIV and AIDS are no longer the same entity because of the options for treatment and long-term survival. It also highlights the enormous potential of the world of work as the nexus for the protection of life and rights of workers and their families in the face of this pandemic. This reference should replace the one to the ILO Code of Practice adopted in 2001. Implementation of the OECD Guidelines Without improved implementation procedures, it matters little how perfect the new text may be. And there are real problems on the implementation side. Most of us on the civil society side would like to see a stronger implementation procedure. We are aware of the significant human rights abuses that arise, both deliberately and by omission, from the operations of some corporations. In this respect we have to recall that there are complaints and supervisory procedures available as concerns States that have ratified ILO or UN Conventions on workers rights and other aspects of human rights, and who fail to enforce their commitments where business is concerned. These could be used much more frequently and more effectively, in ways perfectly consistent with the Guidelines, as could other international supervisory mechanisms. It is important to focus on the implementation of the Guidelines beginning at the corporate level. In the previous session there were several references to this, which I would endorse. This requires clarity and guidance in the Guidelines, which is the present exercise, but also a much more extensive educational campaign for both business and those who interact with them. It is a large job to educate business, and to get them to take real and effective account of human rights, but in many cases business wants to be a good corporate citizen and wants guidance to help it do so. In addition, in most cases respect for human rights in general, and workers rights in particular, is good business. Quite apart from reputational risks of being seen to violate human rights a significant problem greater productivity and better industrial relations as well as good community relations rely on respect for human rights. One example that comes to mind is recent work I have done with the extractive industry concerning indigenous and tribal peoples. In virtually every case in the course of extensive interviews, company representatives said that taking real and close account of the special situation of indigenous peoples represented a large investment but that in every case it paid off in lower 12
conflict rates, shorter approval time for projects, and better reputations. And this applies equally to relations with any ethnic or linguistic or religious minority, women, and other identifiable members of the community. In addition, governments of host countries ought to consider the extent and the ways in which they will encourage respect for human rights and decent corporate conduct of companies based in their own countries or in some cases, of companies which have a significant presence in their countries. It is also necessary that these countries should exercise diligence on the conduct of companies based in countries which are unlikely to promote respect for human rights. Lessons learned for implementation of the Guidelines from the ILO Declaration on Fundamental Principles and Rights at Work in 1998 Under the Guidelines themselves, there are several measures that could be taken in ways that would build on and use better the promotional nature of the Guidelines. I was part of the drafting team for the ILO Declaration on Fundamental Principles and Rights at Work in 1998, and as a human rights lawyer I was very sceptical of the soft-law, promotional approach. But in the end the follow-up procedures, purely promotional as they were, made the Declaration very useful. The lessons learned can be applied to these Guidelines. The major elements were reporting, transparency and publicity. The nonbinding nature of the ILO Declaration has allowed governments, as well as employers and workers organizations, to air their difficulties of compliance in a non-supervisory context, to seek and receive assistance and to resolve problems in ways they could not have done under a supervisory or complaints procedure. This in turn means creating a venue and a procedure for doing so. Is the NCP process sufficient? No doubt it is indispensable, but the OECD itself should develop a more proactive policy and practice for promoting implementation and providing assistance on a more coordinated basis, relying on the experience and expertise of the OECD secretariat as well as the NCPs. I will remark that the ILO process for this under its Tripartite Multinationals Declaration is not well-developed, but it is under the 1998 Declaration, and to this has more recently been added the Helpdesk on ILO standards for business. Improving NCPs and their effectiveness After 10 years of experience we all know that the NCPs can work but that they don t all work there is no functional equivalence between them, and no effective centralized sharing of experience and promotion of consistency among judgments. The procedures document provides no real guidance which allows us to deduce from it exactly how the implementation process should and does work. It would be useful to 13
provide much more extensive guidance to NCPs on how they should and can work. The changes in the Procedural Guidance and in the way it is applied need to deliver a step change in the performance of NCPs. This requires oversight and collaboration. The NCPs should not work in isolation from other human rights entities in the country, but should work more closely with national human rights institutions, courts, non-governmental organizations and others. NCP peer review in line with OECD best practice should be required. The NCPs should not be stand-alone and nearly invisible institutions. National oversight mechanisms, including multi-stakeholder engagement either directly or through an advisory group, which is now permitted, should be required. This means a real effort to involve both workers and employers organizations, as well as other NGOs, is needed, whereas this is now done inconsistently where it is done at all. The home country NCP should be involved in all cases. At the moment it is the host country NCP that leads. The host country NCP has less leverage with the home country. And in many cases it is home countries that contribute to the implementation of the Guidelines by the requirements they place on MNEs based in their countries. There should be the option of NCPs making a determination on whether the Guidelines have been breached so as to provide an incentive for companies to come to mediation. NCPs are presently isolated from other human rights promotional institutions. This should be put right. UN treaty bodies, and national human rights institutions, could be useful interlocutors for NCPs, for example, to help NCPs clarify the extent of international or national human rights obligations in relation to a given issue, or as to how a given issue is handled in other countries. There should be scope for NCPs to undertake advisory contact with such bodies. References to relevant international human rights standards The references in the Guidelines and commentaries to other international human rights standards should be increased significantly. An extensive listing would provide a reference point for specific human rights contained in these other instruments. I note that other international instruments applicable to business contain more extensive listings, including the ILO Tripartite Declaration and the IFC Performance Standards. And, after all, these are for the most part standards to which the OECD Members are already committed. In addition, these standards would be listed simply to permit business to have guidance on the best practice, and not to impose new obligations. 14
Strange as it may seem, experience tells us that understanding of what constitutes even unacceptable forms of child labour, let alone best safety and health practice, is not immediately evident without additional guidance. Proactive support for implementation OECD member States should also take a more proactive and public role in implementation of the Guidelines. Helping less economically developed countries to increase their own understanding of best practice, providing financial and technical assistance and supporting greater action by the OECD itself are extremely important. Finally, the OECD Secretariat should increase its capacity to lead, advise and assist NCPs. This could help increase consistency between the actions of different NCPs, and improve respect for the Guidelines. Experience in the ILO makes it clear that an active role of the Secretariat requires a certain investment, but that the cost is much lower than the conflicts and violations it helps to prevent. 15