37
THE UN GUIDING PRINCIPLES AND THE ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD) GUIDELINES
The influence of the UNGPs is evident in the widespread adoption of the type, nature and scope of due diligence obligations expected of companies for their human rights and environmental impacts. As the UNGPs turned ten in June 2021, the UN Working Group on Business and Human Rights 214 took stock of the first decade of implementation. The Working Group published a UNGPs 10+ Roadmap for the next decade, which envisages mandatory human rights due diligence legislation for states in all regions of the world. 215
The 2018 OECD Due Diligence Guidance for Responsible Business Conduct 218 provides practical support to enterprises on implementation of the OECD Guidelines.
NATIONAL CONTACT POINT CASE ON BIODIVERSITY: FUTURE IN OUR HANDS, INTEX, AND MINDORO NICKEL There have been a number of environmental NCP cases related to impacts on biodiversity. Since 2011, 24% of all specific instances submitted to NCPs made reference to provisions of the Environment Chapter of the OECD Guidelines (77 out of 322). The majority these concern alleged environmental impacts of large-scale projects or operations in the mining, manufacturing and energy sectors. In the Norway NCP case The Future In Our Hands (FIOH), Intex Resources Asa and The Mindoro Nickel Project the complainant complained that a Norwegian company Index had failed to observe the Environmental Chapter of the OECD Guidelines in relation to the Mindoro Nickel Project in the Philippines. The complaint alleged flawed consultation with Indigenous People, and the risk of severe environmental damage. With regards to biodiversity impacts, the NCP found that the Environmental Impact Assessment conducted by Index did not provide adequate information or detail on the potential for marine pollution, and the impacts that the project’s proposed roads and bridges would have on wetlands and other key biodiversity areas. After a series of meetings at the Norwegian Embassy in Manila, Intex expressed its commitment to develop the project in accordance with international standards. 220
Due diligence regulations draw inspiration from, and in many cases explicitly refer to, two foundational standards:
It outlines a six-stage process 219 for due diligence: [fig. 8]
Embed responsible business conduct into policies and management systems
– The UN Guiding Principles on Business and Human Rights 209 – The OECD Guidelines for Multinational Enterprises 210 Other relevant instruments include: – OECD Due Diligence Guidance for Responsible Business Conduct 211 – International Labour Organisation (ILO) Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy – Fundamental ILO conventions It can be said that the advent of due diligence regulation represents a progressive “hardening” of these guidelines into black letter corporate law at a national and supra- national level.
– Identify and assess actual and potential adverse impacts associated with the enterprise’s operations, products or services
The OECD Guidelines for Multinational Enterprises 216 (OECD Guidelines or the Guidelines)
– Cease, prevent and mitigate adverse impacts
The OECD Guidelines are non-binding principles and standards for responsible business conduct in a global context that governments have committed to promoting. They are the first inter-governmental instrument to take the UNGPs’ concept of risk-based due diligence for human rights impacts and extend it to all major areas of business ethics: conflict, human rights, labour rights, environment, bribery and corruption, disclosure and consumer interests. 217 The OECD Guidelines are supported through a unique implementation mechanism of National Contact Points (NCPs), agencies established by adhering nations. NCPs provide guidance to enterprises as well as a mediation and conciliation platform for resolving practical issues that may arise. The OECD Guidelines contain specific provisions for environmental and biodiversity protection under Article VI, which recommends that enterprises take account of the need to protect the environment. This can be accomplished by improving corporate environmental performance of the enterprise and its supply chain by, for instance, providing accurate information on the environmental implications of using their products and services, including greenhouse gas emissions, biodiversity resource efficiency or other environmental issues, exploring and assessing ways of improving environmental performance, and development of strategies on biodiversity.
– Track implementation and results
– Communicate how impacts are addressed
– Provide for or cooperate in remediation when appropriate
This process and measures are being adopted in mandatory due diligence regulations including in the draft EU Corporate Due Diligence Directive discussed below. In addition, the OECD has developed due diligence guidance for specific sectors, such as mineral, agriculture, garment and footwear, and good practice papers for extractives and financial sectors.
The UN Guiding Principles on Business and Human Rights 212 (Guiding Principles or UNGPs)
The UNGPs are directed at states and companies to clarify their duties and responsibilities to protect and respect human rights in the context of business activities. 213 The UNGPs provide practical guidance to companies about what steps they should take to ensure they respect human rights. While the UNGPs (as focused on human rights) do not refer specifically to biodiversity or environmental harm, they do encourage businesses to carry out ongoing due diligence and take action to address impacts, as well as track the effectiveness of external responses and reports. The framework is structured around a business’ duty to “identify, prevent, mitigate and account for” actual or potential adverse impacts of a company or its business partners.
214 The UNWorking Group on Business and Human Rights was mandated by the Human Rights Council to promote dissemination and implementation of the UNGPs worldwide. 215 UNGP, UNGPs 10+ Roadmap for the next decade of business and human rights, United Nations Guiding Principles on Business and Human Rights, 29 November 2021. 216 Guidelines - Organisation for Economic Co-operation and Development, OECD, 2011. 217 John Ruggie the UN Secretary-General’s Special Representative for Business and Human Rights who developed the UNGPs (sometimes called the “Ruggie principles”) described the revised OECD Guidelines as “ongoing, iterative and not necessarily sequential”.
209 Guiding principles on business and human rights: Implementing the United Nations “Protect, Respect and Remedy” framework, UN, 2011. 210 Guidelines - Organisation for Economic Co-operation and Development, OECD, 2011. 211 OECD Due Diligence Guidance for Responsible Business Conduct, OECD, 2011. 212 Guiding principles on business and human rights: Implementing the United Nations “Protect, Respect and Remedy” framework, UN, 2011. 213 Frequently Asked Questions About the Guiding Principles on Business and Human Rights, UN, 2014.
218 OECD Due Diligence Guidance for Responsible Business Conduct, OECD, 2011. 219 OECD Due Diligence Guidance for Responsible Business Conduct, OECD, 2011.
220 The role of OECD instruments on responsible business conduct in progressing environmental objectives, OECD, 2021.
Made with FlippingBook flipbook maker