ESIL Interest Group on Business and Human Rights – Selected Issues: OECD Guidelines and State Implementation of UN Guiding Principles

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Yesterday I had the pleasure to go to Amsterdam to talk at the workshop of the European Society of International Law Interest Group on Business and Human Rights. It was a lively event, with 9 speakers and 2 panels. One focused on implementation and compliance, and the other on accountability and enforcement. I talked about the California Transparency and Supply Chain Act 2012 and discussed the effectiveness of reporting as a way to enhance companies’ human rights records. For the purposes of this post I will focus on two other papers presented during the workshop. Watch this space for more information about my paper and what I plan to do with it.

Karen Weidmann gave a presentation on the role of the OECD National Contact Points (NCP) in the area of business and human rights. Karen served on the German NCP and therefore brought her experience as a practitioner to the discussion. She made 3 main points.

First, she highlighted the fact that the OECD Guidelines for Multinational Enterprises are of increasing relevance in the business and human rights debates, not least because the language of the UN Guiding Principles is reflected in the Guidelines.

Second, she recognised that the complaint mechanism created by the Guidelines, through the setting up of National Contact Points, has an inherently limited impact. However, she argued that it has the potential to play an important role in the business and human rights sphere. This is because there is little formalism with regards to how to relate the “case” to the state of the National Contact Point. In other words, the daunting issues of jurisdiction that constantly arise in relation to the Alien Tort Statute litigation in the United States, for example, have considerably less impact when it comes to NCP cases. Also, the NCPs have a forward looking approach, which, she argued, is particularly well adapted to business and human rights where violations often come from companies having adopted wrong processes, that need to be changed for the violations to end.

Third, she defended the idea that NCPs ought to be closely linked with state administration. Indeed, she sees great potential in having NCPs formally linked to governments so that their decisions can in turn be considered as indications of state practice and opinio juris in business and human rights. Also, in her opinion, there is great value in having governments “stamping” the NCP decisions because it may make companies take the process more seriously and add political backing to the problem-solving in individual cases. I had never really thought about this in this way and I think these are interesting points.

Carmen Marquez Carrasco and Luis Rodriguez Piñero gave a presentation on the implementation of the UN Guiding Principles in Spain. Laura Iñígo Alvarez had also contributed to the research. I knew nothing of the situation there on this question so it was particularly interesting for me. They highlighted the quasi absence of so called “CSR culture” among Spanish companies and the difficulties in engaging Spanish NGOs in the debates, as they generally consider the UN Guiding Principles to be a negative development and refuse to participate to discussions on this. Finally, they mentioned the fact that three cases are currently pending before the Spanish NCP, with no final decision yet.

In the end, they raised a more fundamental question about the variety of implementation strategies for the UN Guiding Principles that EU countries seem to be working on at the moment and raised the following question: what will happen when the EU Commission realises that the 27 Member States have adopted different legislation or at least policies on this? I guess that’s the 1,000,000 million euro question!

I foresee we will hear more about this in the next months as countries hopefully start publicizing their strategies.