LES PRINCIPES DIRECTEURS DES NATIONS UNIES ET DE L’OCDE A’ L’INTENTION DES ENTREPRISES MULTINATIONALES SUR LA CONDUITE RESPONSABLE DES ENTREPRISES

The debate in the United Nations on business and human rights does not date from the nineteenth century but has a history which begins as half of the past century and which would be too long to recall here. What is interesting to note here first of all is the normative ‘success’ of both the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights, as well as the relationship between these two sets of international soft law rules. At the beginning and it was already the time of the discussions on the new international economic order, the OECD Guidelines for Multinational Enterprises laid down the content and articulation of those rules. 35 years later, the UN Business and Human Rights Guidelines have arrived with a larger and structured normative content. At the end of the cycle, today, the OECD Guidelines, in their update in 2011 and 2023, refer to the UN Guiding Principles. The OECD Guidelines were first adopted on 21 June 1976. Since their adoption, the OECD Guidelines have been subject to periodic revision and updates (in 1979, 1984, 1991, 2000 and 2011), the last dating from 2023. They are the oldest standards of conduct in force. The OECD Guidelines form an integral part of the OECD Declaration on International Investment and Multinational Enterprises. The OECD Investment Committee shall oversee the guiding principles and organise a regular exchange of views. They refer to the activities of multinational companies operating not only in the territory of countries which adhere to the OECD Guidelines, but also from them. In that sense, they have an important dimension of extraterritoriality and transnationality because they relate to the multinational undertaking as a whole. Their force derives from their nature as a non-binding but as a persuasive instrument. Their legal nature of soft law not only did not reduce their spread, but it guaranteed their global radiation and their fine tuning, on a continuous basis (through their periodic update), with the development of the international societas. Thus, in the course of the revised versions of the OECD Guidelines, they have integrated emerging matters such as sustainable development, environmental protection and climate change, human rights and the fight against corruption. Moreover, unlike other international soft law instruments, the OECD Guidelines have been empowered with a non-judicial review mechanism: the national contact point (PCN) which each signatory States undertook to manage. It encourages the implementation of the recommendations and may initiate an informal conciliation procedure in the event of a breach of the OECD Guidelines. It is therefore another aspect which has certainly influenced the drafting of the UN Guiding Principles on Business and Human Rights because it did show the possibility of alternative judicial means of dealing with complex disputes linked to the activities of multinational companies. Above all, in a world where the parent company is protected from a national legal system and a national court which is far removed from the place where the infringements are committed. The third connexed development is the evolving European Union legal framework. Here, it is sufficient to read the European Parliament legislative resolution of 24 April 2024 on the proposal for a directive of the European Parliament and of the Council on the duty of care of undertakings in relation to sustainability with the position of the European Parliament. These acts confirm the central importance of the OECD Guidelines for Multinational Enterprises, as well as the OECD Guide on the duty of care for responsible conduct of enterprises in the design and formulation of EU law in this area.