I- The State’s Obligation to Protect Human Rights
The International Framework
3. The Organization for Economic Co-Operation and Development (OECD) [page 14]
The French National Contact Point (NCP) for the OECD Guidelines is a mediation body that aims to resolve conflicts while promoting and applying [the OECD guidelines for Multinational Enterprises]. Although the measures it applies are not binding (particularly in the legal sense), it is one of the most active of the 46 existing NCPs. Its actions to promote the OECD Guidelines include: publishing a report on the actions to be taken following the Rana Plaza tragedy,
organizing a ministerial session chaired by France and the Netherlands which took place on the sidelines of the OECD Forum on Responsible Business Conduct in June 2014, contributing to work completed by the G7 on global supply chains in 2015, and promoting the Guidelines and the work of the NCP.
The NGO coalition OECD Watch published a report analysing NCP complaints filed by NGOs over a 15-year period (which represented around 50% of all cases). It highlighted the need to reinforce the mechanisms and resources available to NCPs to improve efficiency and provide real access to remedy for victims …
… [France] is also very active in the working group developing a guide for the textile industry, following the recommendations of its NCP in this field.
The National Framework
15. Economic Sectors and Human Rights
Actions for All Economic Sectors [page 32]
- Capitalize on the observations in the French NCP’s report on the textile and garment sector and begin promoting and adapting these recommendations so they can be enforced in all sectors.
The Textile and Garment Sector [page 33]
Following the collapse of the Rana Plaza textile factory in Bangladesh in April 2013, France’s Minister for Foreign Trade at that time asked the OECD National Contact Point (NCP) to clarify the scope of the OECD Guidelines with respect to outsourcing companies’ supply chains, and to issue recommendations reinforcing the application of these guidelines so such negligence could be prevented in the future.
The NCP report, produced following hearings with all parties involved, was submitted to the Minister and published online on 2 December 2013. It addresses all actors, and establishes a full range of measures which, once implemented, will enable businesses to oversee supply chains in this sector. The recommendations were shared widely, particularly with the OECD, ILO and EU, and were followed by similar reports published by the Italian and Belgian NCPs.
Following the publication of these recommendations, the OECD set up a working group to develop a guide for the enforcement of the guidelines in the textile sector, at France’s insistence. This working group brings together international organizations such as ILO, the private sector, civil society, NCPs and States. The guide will include reinforced due diligence measures to be implemented in this specific sector. The OECD has also planned to set up a platform for shared dialogue and good practices …
… the NCP is continuing to implement and build on its recommendations, particularly in order to harmonize auditing baselines and mutualize supplier audits.
- France is continuing to raise awareness of the NCP report issued on 2 December 2013, and monitor the implementation of its recommendations in the French textile, garment and distribution sectors.
The Financial Sector [page 35]
… In a statement dated 27 May 2013, the OECD’s Norwegian NCP specified that like other enterprises, investors are expected to comply with due diligence requirements recommended by the OECD Guidelines for Multinational Enterprises regarding the respect and protection of human rights including in relation to minority shareholdings …
II- Businesses’ Responsibility to Respect Human Rights
In March 2015, the National CSR Platform agreed on the following points with respect to due diligence [page 38]
- Defining the operational content of reasonable due diligence processes for companies in due diligence plans. … The French NCP’s work on the textile and garment sector could be a useful reference. …
III- Access to Remedy
2. Non-Judicial Mechanisms – At the International Level
2.1 The OECD National Contact Point (NCP) [pages 54-55]
The French NCP is very active in promoting responsible business conduct and the OECD Guidelines for Multinational Enterprises. Following the Rana Plaza tragedy, the NCP stepped up its activities, especially in the field of due diligence for supply chain risks, human rights and workers’ rights. The collapse of Rana Plaza In April 2013 highlighted the importance of the latest revision of the OECD Guidelines, which led to the integration of the UN Guiding Principles adopted in June 2011. This revision also sought to make NCPs more efficient by reviewing their Procedural Guidance.
NCPs are set up to promote and monitor compliance with the OECD Guidelines for Multinational Enterprises. They are non-judicial dispute resolution bodies that support remedial measures by offering their good offices and, where possible, giving parties access to mediation. Successful remedial measures rely on an environment of trust being established between the parties and constructive dialogue being initiated between the parties and the NCP, to improve compliance with OECD recommendations.
France’s NCP is tripartite, involving government, trade union and business representatives. This structure was praised by OECD Watch in its report “Remedy Remains Rare” (June 2015). Since the French NCP was created, the State’s involvement has enabled it to adopt a balanced multi-sectorial and inter-ministerial model that is relatively unique among its peers. Its members include representatives of the Ministry of the Economy and Finance, the Ministry of the Environment, the Ministry of Social Affairs, Labour and Employment, and the Ministry of Foreign Affairs and International Development. Another unique feature of the French NCP is its broad representation of labour groups, with six national trade unions featuring among its members. The employers’ organization MEDEF represents French businesses. The French NCP’s decisions are all consensual.
Following the Procedural Guidance review, the French NCP revised its internal rules in 2012 and 2014 to improve its efficiency in dealing with requests (timeline for dealing with files, options for following up on recommendations, and enhanced communication by way of statements on the admissibility of requests, follow-up statements and statements issued during the processing of files). The French NCP has also made it easier to call on external technical experts at any time, as seen during the Rana Plaza hearings and meetings with the CNCDH.
The revision of the French NCP’s internal rules has also improved the transparency of its work and helped structure dialogue with civil society. The NCP now holds an annual information meeting and an annual consultation meeting with organizations representing civil society. During these meetings, it presents its activity report and decisions, discusses current issues regarding responsible business conduct, and highlights the OECD’s role supporting responsible business conduct (through the Global Forum, consultative groups, sector-specific guides, roundtables, etc.). The NCP’s website is regularly updated, and features links to statements on requests, decisions and activities (activity reports, request dashboards, lists of promotional activities), as well as information on the OECD Guidelines for Multinational Enterprises and Global Forum on Responsible Business Conduct launched by the OECD in 2013.
In addition, the French NCP has recently been granted additional resources, with the promotion of the Chairman to the position of Advisor to the Director-General of the Treasury in 2012, and the appointment of a full-time Secretary-General in 2013 (who is an agent of the Directorate-General of the Treasury). The NCP’s main tool is the publication of decisions, which was reinforced following the 2011 revision. The NCP’s decisions are all made public and include case details and explanations, subject to confidentiality requirements. The NCP is committed to providing detailed answers to questions asked by complainants, including those concerning compliance with the OECD Guidelines, which is optional under the Procedural Guidance. If applicable, the NCP rules on non-compliance or partial compliance with the Guidelines, which not all NCPs do. In addition to offering good offices, the French NCP can rule on the feasibility of mediation, which it can perform directly if the parties agree to be bound by its ruling. If necessary, the NCP issues recommendations to parties. It can decide to follow up on decisions, including in the long term (see the specific instances on the Groupe Michelin in India and Socapalm – Groupe Bolloré in Cameroon, as well as the Rana Plaza report). Lastly, it can use all modern means of communication to contact complainants based abroad.
In 2013, the OECD launched an ambitious programme in which the French NCP is very involved. It is participating in innovative actions such as the horizontal review process (for example, dealing with NCP requests and communications), the sharing of experiences and regional capacity-building seminars for NCPs. The French NCP is also taking part in the peer review process, and is currently chairing a peer review of the Italian NCP. These actions are part of the OECD’s Action Plan to Strengthen National Contact Points and the G7 Action Plan of 13 October 2015, which seek to establish good practices for the entire NCP network,
ensuring that they are functionally equivalent.
However, the decisions issued by NCPs are non-binding legal instruments. As such, NCPs cannot force a business to comply with the OECD Guidelines, even when they rule that these guidelines have been breached.
- NCPs could play a key role in supporting access to remedial measures and promoting responsible business conduct and the OECD Guidelines around the world. France is therefore advocating that the OECD increase its support to NCPs so they can improve coordination, become functionally equivalent, develop procedures for sharing information and make the NCP network more dynamic.
- In order for the French NCP to continue being one of the most efficient NCPs in terms of fulfilling its goals and responding to new requests, France recommends allocating sufficient operating resources to allow it to perform its duties.
- The French NCP will continue to support other NCPs and take part in peer reviews, including a peer review of its own operations.
Actions to be Implemented
- Reinforce the NCP’s tools supporting dialogue with civil society by optimizing provisions in its internal rules (annual information meetings, annual meetings to discuss issues with civil society, calling on experts as required).