Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementation Challenges

Business and human rights became an increasingly prominent feature on the international agenda in the 1990s. Global markets widened and deepened significantly as a result of trade liberalization, privatization, deregulation, and off-shoring production as well as financial centers. The rights of multinational corporations to operate globally became legally enshrined in a vast expansion of bilateral investment treaties and investment chapters of bilateral and regional free trade agreements, as well as a new international regime protecting intellectual property. Multinational corporations did well subsequently, and so too did people and countries that were able to take advantage of the opportunities created by this transformative process.But others were less fortunate. Global social and environmental protections lagged behind, and domestic safety nets, where they existed at all, began to fray. Income inequalities began to rise. International attempts to regulate the conduct of multinational corporations, going back to the 1970s, continued to fail. Sweatshops, displaced communities, child labor, forced and bonded labor, corporate security providers raping and sometimes killing demonstrators or mere bystanders, are among the abuses that were amply documented. What requires better documentation, if these global imbalances are to be corrected, are the means by which the global and local communities have sought to redress the imbalances, and how they might be improved. This paper takes one small step in that direction. It analyzes the first and still one of the very few international mechanisms that governments have established enabling individuals, communities or their representatives to bring complaints against multinational corporations: the Guidelines for Multinational Enterprises ("Guidelines") promulgated by the Organization for Economic Cooperation and Development (OECD). Our interest in the Guidelines in this paper is two-fold. First, we want to identify patterns of use over time in order to better understand them. Second, we want to see what if any difference exists in these patterns since the endorsement by the United Nations Human Rights Council in 2011 of the Guiding Principles on Human Rights, core elements of which were incorporated into the 2011 OECD Guidelines revision. Finally, we offer some concluding thoughts about how this complaints mechanism should be strengthened.