On HRDs and the Updated OECD Guidelines for Multinational Enterprises

14 June 2023

Earlier this month, the Organisation for Economic Co-Operation and Development (OECD) issued an update of its Guidelines for Multinational Enterprises, including recognition of the risks for human rights defenders peacefully opposing negative impacts of corporate activity and voicing concerns about them.

Last updated in 2011, the OECD Guidelines have proved one of the most important standards for encouraging rights-respecting business conduct over the last 12 years.

However, as with other non-binding guidance, they have not had the hoped-for impact when it comes to ensuring that companies neither undermine nor directly violate human rights through their activities, services or products.

Overall, the updates included by the OECD strengthen pre-existing standards, in particular when it comes to climate change, and should be looked to as a key source in ongoing and future efforts to build mandatory obligations around corporate respect for human rights and the environment.

Vitally, the updated Guidelines call on companies to take steps to mitigate risks of retaliation against human rights defenders and to refrain from any such retaliation themselves. This is something I had called for. They also provide clear guidance on stakeholder engagement.

In the General Principles chapter of the updated Guidelines, the OECD calls on companies to refrain from reprisals against workers, trade union representatives, who may be human rights defenders, as well as any other persons or groups seeking to report, investigate or raise concerns regarding adverse impacts linked to an enterprises operations, products or services. Companies are urged to promote an environment in which individuals and groups feel secure in raising concerns and to contribute to remediation for reprisals where they occur.

While this reference on reprisals could and should be strengthened by specifically naming human rights defenders as a group at heightened risk of retaliation, along with a reference to the UN Declaration on Human Rights Defenders, it is complimented in the Commentary to the General Principles through examples of such attacks, stating:

Reprisals include retaliatory or discriminatory actions that are intended to censor, intimidate, harm or silence critics such as threats, reputational smears, slurs, harassment, intimidation, surveillance, strategic lawsuits against public participation, attempts to criminalise lawful activities, physical attacks and killings.

All of these are risks human rights defenders run when raising concerns about corporate activity and peacefully opposing negative impacts. This is recognised in the Commentary to the Human Rights chapter of the Guidelines, where it is stated:

Enterprises should pay special attention to any particular adverse impacts on individuals, for example human rights defenders, who may be at heightened risk due to marginalisation, vulnerability or other circumstances, individually or as members of certain groups or populations, including Indigenous Peoples.

While the OECD could have gone further in recognising the role of human rights defenders, I applaud their efforts to recognise and address the risks they face.

The full version of the updated Guidelines can be found here: https://mneguidelines.oecd.org/mneguidelines/.