Rights as Usual

It is a pleasure to welcome Dr Rachel Chambers to Rights as Usual. Rachel is a Postdoctoral Fellow in Business and Human Rights at the University of Connecticut and serves on the steering committee of UConn’s Business and Human Rights Initiative. Her research centres on access to remedy through judicial and non-judicial mechanisms, non-financial reporting and human rights due diligence. She is a Barrister (England and Wales). This post is hers.

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On 25 September 2019 it was announced that the UK National Contact Point (NCP) has decided to accept a complaint regarding the actions of sugar industry multi-stakeholder initiative (MSI) Bonsucro as admissible and offer mediation to the parties. This decision forms part of a welcomed trend of greater acceptance of complaints by the UK NCP. It is also the second complaint about an MSI to be accepted by an NCP – the first being a complaint against the Roundtable for Sustainable Palm Oil (RSPO) that was the subject of a final statement by the Swiss NCP last year. This is an important development that will enhance the accountability and ultimately the strength and legitimacy of MSIs.

The UK NCP’s Record of Accepting Complaints

 The OECD NCP is a non-judicial mechanism intended to hold companies to account over breaches of the OECD Guidelines for Multinational Enterprises, an international standard set by the OECD on labour rights, human rights, the environment and corruption, among others. To-date, 46 governments have adopted the Guidelines, and the prominence of this mechanism has been widely acknowledged (see previous posts on this blog about NCP cases here and here). For example, in June 2015 the G7 leaders made a declaration calling for the strengthening of NCPs in the context of providing access to remedy.

The UK NCP has a good reputation, particularly since 2008 when its processes were strengthened. A complaint is brought by filling in a form which is available on the NCP’s website. The NCP offers professional mediation in suitable cases and, where mediation fails or is not taken up by the parties, examination of the complaint and determination of whether or not the Guidelines have been breached. There is follow up by the NCP a year after examination of a complaint to assess progress on the issues raised.

However, in recent years the UK NCP has been the subject of criticism. An Amnesty International report from 2016 charted the decline in the NCP’s performance in the period from 2011 (see my earlier blog). OECD Watch wrote an open letter to the UK NCP in early 2018 in an attempt to restore civil society’s confidence in the NCP.

One of the primary criticisms of the NCP was that it was rejecting too many complaints at the initial assessment stage, by imposing an unreasonably high burden of proof. The OECD’s Procedural Guidance merely tells an NCP to ‘determine whether the issue is bona fide and relevant to the implementation of the Guidelines’.

A quick survey of complaints considered by the UK NCP since the Amnesty report reveals that relatively few have been brought in that period, no doubt reflecting the lack of confidence civil society felt in the process. However, of the seven complaints brought, five have been accepted for mediation. The last time a complaint was outright rejected at the initial assessment stage was three years ago, in November 2016. The NCP did, however, reject complaints against two of three companies named in complaints last year. The tenor of decisions is less strict when it comes to the evidentiary threshold, however. In one decision, the UK NCP noted a distinct lack of detail in the evidence, but stated nonetheless:

(…) the initial assessment process is to determine whether the issues raised merit further examination. It is not an assessment of the likely outcome of any further examination. It is on this basis that the UK NCP has considered the complaint.

The Complaint against Multi-stakeholder Initiative Bonsucro

 The complaint against Bonsucro alleges that the MSI failed to conduct adequate due diligence and apply leverage to its member Mitr Phol Group – Thailand with regard to alleged human rights violations: the forced evictions of hundreds of Cambodian families to make way for sugar cane plantations. The complainants also allege that Bonsucro does not have in place adequate human rights policy commitments and an effective grievance mechanism in line with the OECD Guidelines. The complainant NGOs produced evidence both of the forced evictions in Cambodia and of the lack of human rights policy. Thus, on an evidentiary level, this case was easier to get off the starting blocks than many. More challenging, potentially, was the need to convince the UK NCP to accept a case against an MSI – not the usual target of complaints under the OECD Guidelines, despite the Swiss precedent in the RSPO complaint.

The multi-stakeholder initiative (MSI) approach to business regulation emerged from the 1992 Rio Summit (UN Conference on Environment and Development). It consists of multiple stakeholders (usually business and civil society, along with others, including governments, universities and/or investors) working together to solve complex problems in the field of business and human rights. Although praised as a step forward from corporate self-regulation, MSIs are being increasingly assessed for their performance and critiqued, particularly when they fail to hold their corporate members to account for human rights violations.

The issues that underlie the Bonsucro case had previously been raised in a complaint brought under the MSI’s own grievance mechanism in 2011. Bonsucro dismissed the complaint on the grounds that it did not receive cogent evidence of a breach of its code of conduct.

At the OECD Guidelines initial assessment stage, Bonsucro argued that the UK NCP was not the appropriate forum for the complaint to be heard, asserting that the real issue was with its member company, and that Bonsucro should not be used as a conduit for this complaint.

The UK NCP gave short shrift to these arguments, finding that Bonsucro falls within the loose definition of an MNE from the Guidelines, and that it was appropriate for the NCP to consider alleged human rights violations that are linked to a company’s operations, products or services by a business relationship (i.e. the membership relationship between Mitr Phol Group- Thailand and Bonsucro). This outcome was hailed as a success by one of the complainant NGOs. The UK NCP will now offer the parties an opportunity to mediate the issues, or if mediation fails, it will examine the claim that Bonsucro’s actions are inconsistent with the Guidelines.

It is hoped that the mediation will be productive and, if not, that the UK NCP will use this opportunity to clarify the OECD Guidelines’ role in enhancing the accountability and ultimately the strength and legitimacy of MSIs. The Bonsucro decision should also be placed in its wider context, i.e. the practice of the Swiss NCP, who besides the RSPO, has held complaints against FIFA (formally an association under Swiss law) and WWF admissible. With two separate NCPs going in the same direction, the role of business and human rights standards to strengthen the accountability of non-state actors operating transnationally is now open for discussion. In an upcoming article they presented at the Business and Human Rights Scholars Association Conference in September, Domenico Carolei and Nadia Bernaz bring this question to the fore.