Ever heard of SDG washing? The urgency of SDG Due Diligence

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct. This article was originally published on Development Matters blog on 25 September 2017.


September 25, 2017 marks World SDG Action Day.


SDG-dayA couple of months ago during the OECD’s Global Forum on Responsible Business Conduct,1 I heard a new term: SDG washing. After green washing and blue washing – using a UN logo to signpost sustainability without doing much – the term SDG washing points to businesses that use the Sustainable Development Goals to market their positive contribution to some SDGs while ignoring their negative impact on others. For example, a car company may market their electric cars as saving the climate (SDG 13↑). Yet, the cobalt in their batteries may be mined by five-year old kids in Congo (SDG 8 ↓).

It is clear that the world will never reach the SDGs without businesses. While businesses can make positive contributions, such as creating jobs, finding innovative solutions for climate challenges or contributing to human capital development, they can also cause or contribute to negative impacts, such as exploiting labour in supply chains, damaging the environment or engaging in corrupt practices. Businesses should pay due attention to ensure that they avoid undermining the SDGs by causing or contributing to negative impacts.

 

Civil society organisations have asserted that business responsibility for respecting human rights is too often viewed only as a matter of compliance and risk management… [which] underestimates the hugely positive development impacts that will be achieved through improved treatment of the millions of workers and communities affected by business activities around the world.”2 Indeed, I have seen companies use the following excuse: We may have forced labour in our supply chain, but we have a great scholarship programme for girls. That is a no go. People have criticised companies for cherry picking — basically profiling certain positive effects on a particular SDG and ignoring any negative impacts. Companies cannot compensate for doing harm on one SDG by doing well on another SDG. How, then, should companies proceed?

On the one hand, risk-based due diligence processes grounded in the UN Guiding Principles for Business and Human Rights and the OECD Guidelines for Multinational Enterprises can help define expectations. Companies should prioritise their efforts on where their negative impacts on the SDGs are most severe.

On the other hand, profiling positive contributions to certain SDGs is fine and good, and where business can make a lot of money. In other words, in doing well by doing good, business can deliver significant value to the SDGs. The Business and Sustainable Development Commission report Better Business, Better World stated: “Achieving the Global Goals opens up US$12 trillion of market opportunities in the four economic systems examined by the Commission. These are food and agriculture, cities, energy and materials, and health and well-being. They represent around 60% of the real economy and are critical to delivering the Global Goals. To capture these opportunities in full, businesses need to pursue social and environmental sustainability as avidly as they pursue market share and shareholder value. If a critical mass of companies joins us in doing this now, together we will become an unstoppable force. If they don’t, the costs and uncertainty of unsustainable development could swell until there is no viable world in which to do business.”

Ultimately, companies should do their due diligence on all SDGs to avoid undermining these goals. This is the essential baseline. Just think about what not having child labour in the supply chains would mean for the SDGs. A focus on managing the negative impacts on the SDGs is most urgent. This approach, taken together with the focus and positive impacts on certain SDGs, is a recipe for businesses to maximise their contribution to the SDGs.


1.See also: Contributing to the Sustainable Development Goals through responsible business conduct, 2017 Global Forum on Responsible Business Conduct, Session Note.

2. Excerpt from an open letter to UN Secretary-General António Guterres and UN Private Sector Forum 2017 Participants by Business & Human Rights Resource Centre, the Danish Institute for Human Rights, the Institute for Human Rights and Business, the International Corporate Accountability Roundtable, Oxfam International, and Shift

 

Advertisements

Beer, conflict and compensation: Heineken-Congo agreement

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct (@nieuwenkamp_csr). This article was originally published on OECD Insights on 15 September 2017.

Heineken’s agreement with Congolese workers sets excellent example of dispute settlement on responsible business conduct.

Doing business in conflict areas is challenging for everyone, whether you are talking about mining or even brewing beer. In 2015 a group of 168 former workers of Heineken’s subsidiary Bralima in the Democratic Republic of Congo submitted a complaint to the Dutch National Contact Point (NCP), a grievance mechanism set up under the OECD Guidelines for Multinational Enterprises, about the company’s conduct during the civil war in that country (1999-2003). The complaint concerned allegations of Bralima unjustly dismissing its workers and co-operating with the rebel movement in RCD-Goma, and the negative consequences this had for the firm’s workers and their families.

The complaint was successfully resolved recently. Details of the agreement between Heineken and the former Congolese workers, facilitated by the Dutch NCP, are confidential, but the overall outcome is public. All parties describe it as satisfactory and civil society even hailed it as “historic”.

This is good news. Heineken, their former workers and the Dutch NCP deserve praise for solving this highly complex corporate responsibility issue. Why?

One key reason lies in the fact that monetary compensation was awarded, according to reports. Although there have been many different sorts of remedy through the NCP system, monetary compensation has been rare.

Still, it is important to manage expectations. For a start, NCPs are a non-judicial grievance mechanism, meaning that the NCPs cannot legally enforce remedy. However, the NCP process can facilitate remedy, including compensation, as part of a mediation or conciliation process. NCPs can also recommend remedy, including financial compensation, in their final statements. The Heineken agreement illustrates that NCP processes are not exclusively forward-looking, but can also function retroactively.

Another reason why this is a historic agreement is that it shows that longstanding issues such as the Heineken case, that took place 15 years ago, can still be solved by an NCP process today. NCPs are known to get a lot of complex cases that often have already been in courts for years. This case demonstrates that even human rights issues that go back many years can still be solved if the conditions are in place.

The case is also a landmark because it shows that NCPs, when properly organised, can deal with human and labour rights issues in conflict areas. Indeed, Heineken has committed to improving its policy and practices on doing business in volatile and conflict-affected countries. Other companies should now follow Heineken’s example.

Make no mistake: a critical factor in this case was that Heineken and the complainants engaged fully and responsibly with the process. In many cases, using this problem-solving approach is more effective in addressing corporate responsibility issues than legalistic ones. Another reason for success was that the NCP was positioned to handle the case professionally. As the NCP is an adequately resourced, independent responsible business authority, which made it possible to be accessible and equitable towards all parties in a remote area ravaged by civil war. The mediation could rely on government support too, as it was facilitated by Dutch embassies in France and Uganda.

In short, several lessons on different levels can be drawn from the resolution of this business and human rights case. Above all, it should inspire other governments and NCPs, and businesses too. It shows that with the right mind-set, companies can successfully turn human rights issues into opportunities for improving corporate responsibility.

See also:

OECD Guidelines for Multinational Enterprises

Olivier van Beemen (2017), En RDC, une poignée d’ouvriers fait plier le géant Heineken, Le Monde

Olivier van Beemen (2017), Heineken betaalt Congolezen na klacht mensenrechtenschending, NRC

Living up to expectations on Responsible Business Conduct

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct

The OECD Guidelines for Multinational Enterprises (OECD Guidelines) and the National Contact Points (NCPs) through which NGOs, unions and communities can submit complaints about corporate behaviour, are often mentioned in the context of the backlash against globalisation and the call for responsible supply chains. They have been considered as a concrete and unique instrument on corporate responsibility to deal with the downsides of globalisation by creating an international level playing field for inclusive and sustainable trade and investment. In this regard, the network of 48 NCPs play an important role to promote responsible business conduct but also as a globally active mechanism to deal with cases of alleged non-observance of the Guidelines. Recently, a number of noteworthy developments have taken place inside and outside the OECD that have created a new momentum on responsible business conduct worldwide, confirming the prominence of the OECD Guidelines and its in-built implementation mechanism, the NCPs.

First of all, on 7-8 June OECD Ministers met in Paris to discuss “Making Globalisation Work: Better Lives for All”. The resulting Ministerial Statement which guides the work of the OECD in the next year, places great emphasis on responsible business conduct as a concrete tool to promote good globalisation. Ministers recognised the OECD Guidelines as the leading international instrument for this purpose. Ministers encouraged the OECD to develop a general due diligence guidance for responsible business conduct to provide practical support to companies on the implementation of the OECD Guidelines. They also committed to “fully functioning and adequately resourced NCPs, and to undertake a peer learning, capacity building exercise or a peer review by 2021, with the aim of having all countries peer reviewed by 2023.” In two years, at the occasion of its Ministerial meeting in 2019, Ministers expect a report on progress made on these commitments. Equally, peer pressure in the OECD Council and the OECD Working Group on Responsible Business Conduct has also increased to ensure that all governments implement the obligations they committed to when adhering to the OECD Guidelines.

On 17 May, the OECD Council decided to incorporate the OECD Due Diligence for Responsible Supply Chains in the Garment and Footwear Sector in an OECD Council Recommendation. While companies themselves are the audience of OECD due diligence guidance, the Recommendation represents a common position by the 47 Government Adherents to the OECD Guidelines expressing their commitment and political will to promote the use and implementation of the due diligence guidance, including through their NCPs. There are now four OECD Council Recommendations on sector-specific due diligence guidance.*

The reach of the Guidelines was further enlarged on 20 June, when Kazakhstan became the 48th Adherent. As such, Kazakhstan has committed to promoting and enabling responsible business conduct and to establish a NCP to function as a problem-solving mechanism to deal with possible adverse impacts of corporate behaviour.

However, beyond the OECD itself, the commitment to responsible business conduct also featured high on the G20 agenda in Germany this year. “In order to achieve sustainable and inclusive supply chains”, the G20 leaders on 7-8 July vowed, “to fostering the implementation of labour, social and environmental standards and human rights”. The G20 recognised the important role of the OECD Guidelines, to promote responsible business conduct, as well as the NCPs as a non-judicial grievance mechanism for access to remedy. The call echoed the Ministerial Declaration by the G20 Labour and Employment Ministers of 18-19 May, which re-affirmed commitments to the OECD Guidelines, the responsibility of business to exercise due diligence, and strengthen and increase the visibility of NCPs.

The impetus provided by the G20 and recent developments in the OECD have further strengthened the position of the OECD Guidelines as a concrete instrument to promote responsible supply chains globally. This heightened recognition comes with expectations. The network of NCPs has a key role to play to realise the full potential of its reach.

*                  The Recommendation of the Council on Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, Recommendation of the Council on the OECD-FAO Guidance on Responsible Agricultural Supply Chains, and Recommendation of the Council on the Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. For the full text of the Recommendations please consult the OECD legal instruments database.

 

Smartphones are child’s play, but what about the child labour?

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct (@nieuwenkamp_csr). This article was originally published on OECD Insights on 27 April 2017.

Digital technology depends on energy, and that energy depends on minerals. Take cobalt, for instance. Use of this ferromagnetic metal can be traced back to Ancient Egypt when it was used to taint ceramics. Today cobalt is an integral part of rechargeable lithium-ion batteries that go into smartphones, lap tops and electric vehicles. The market for rechargeable lithium-ion batteries is expected to more than double to USD 77 billion by 2024. Hence, for the “fourth industrial revolution” to succeed and to meet our important climate goals, we need cobalt–but at what cost?

Recent press reports decry children, sometimes as young as 5 years old, working in cobalt mining under terrible conditions in the Democratic Republic of the Congo (DRC). These mines operate outside legal frameworks, without formal social, health or worker protection.

If your company operates in this sector, whether making or using cobalt-dependent batteries, or the digital products they go into, and no matter where that cobalt enters in your supply chains, you cannot afford to take these press reports lightly. So, what can you do? The DRC produces more than 60% of the world’s cobalt. Of this, most comes from large scale industrial mines, but around 30% comes from illegal mines where there is a marked risk of child labour being used. Given the DRC’s huge market share, it is likely that some of its cobalt is present in your supply chain.

But how can you be sure? It is not easy. True, the OECD Guidelines for Multinational Enterprises call on companies to scrutinise their supply chains for human rights, labour, environmental and corruption impacts, but these supply chains are incredibly complex and long. How to know where the cobalt comes from? After all, the buyer of the Congolese cobalt affected by child labour, may in this case be a Chinese cobalt smelter, which would be several links up the supply chain and completely unknown to your firm: a sub-sub-sub-sub-supplier, if you like.

To be fair, the OECD’s due diligence standard acknowledges that companies on the end of long supply chains cannot realistically know the mine of origin for all the metals in their product, but they should at least try to identify the smelters. But even if you manage to identify this smelter, what can you do to reduce your risk?

There are several avenues to consider. You could join an industry association that, collectively, as the largest buyers of lithium batteries, has leverage over the cobalt smelters, pushing them to use international standards to source cobalt responsibly and prevent child labour; an example is the Responsible Cobalt Initiative. The industry association may reach out to government officials in China, for instance, to get their support in aligning the cobalt smelters with responsible international standards.

However, the main responsibility for due diligence regarding supply chains rests with your firm. The OECD can help, with a set of practical actions due to be published in 2017, which will explain in simple terms how to tackle the risks of the worst forms of child labour in the minerals supply chain.

Not all informality is bad per se. Roughly a fifth of the DRC’s population relies on this type of mining, despite the terrible conditions. So walking away from the DRC is not the answer either, even if it were feasible given the DRC’s share of production and the limited control you can hope to have over upstream suppliers. Clearly, the aim of any upstanding digital firm, both for moral and business reasons, is to work towards the prevention of child labour. Achieving this requires a collective effort to formalise and legalise the informal mining sector, remove children from the mines, and develop schools instead. This requires a herculean effort, and while companies can show intolerance to child labour and encouragement to tackle it, they cannot achieve change without working closely with the DRC government, local civil society and communities, as well as donors, to address the root causes of child labour. Only then can the cobalt supply chains be cleaned up for good.

Meanwhile, international organisations like ours can help put in place the conditions for progress. For instance, the China-OECD joint programme of work includes co-operation on responsible mineral supply chains. Indeed, the OECD has helped the China Chamber of Commerce of Metals Minerals and Chemicals Importers and Exporters (CCCMC), a Chinese industry association, set up the Responsible Cobalt Initiative. This includes international technology companies, battery manufacturers and Chinese smelters, working alongside the new Inter-ministerial Commission on Child Labour of the Congolese government, using the OECD Due Diligence Standards for Responsible Mineral Supply Chains.

It shows how crucial engagement with governments and players across the spectrum can be to prevent risks, improve welfare and protect integrity and human rights.

The digital revolution is so promising in many ways, and is a harbinger of a cleaner world. The onus is on us all to work ever harder together to ensure what goes into our technology respects the highest standards. Our technology will be even smarter, and fairer, as a result.

Links and further reading

By the same author:

Corporate leaders: Your supply chain is your responsibility”, in OECD Observer No 299, Q2 2014

Responsible Algorithms in Business: Robots, fake news, spyware, self-driving cars and corporate responsibility, in OECD Insights, 31 January 2017.

See also:

Frankel, Todd (2016), “The Cobalt Pipeline: Tracing the path from deadly hand-dug mines in Congo to consumers’ phones and laptops”, in The Washington Post, 30 September

A Responsibility Revolution in the Fashion Industry: How OECD’s new Due Diligence Instrument can transform the global garment industry

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct (@nieuwenkamp_csr). This article was originally published on OECD Insights on 31 January 2017.

218px-sri_lankan_garment_workers

The collapse of the Rana Plaza factory in 2013 with a loss of over 1,130 lives was a jarring reminder that though much has been accomplished to improve working conditions in global supply chains, more is needed. Following the tragedy, stakeholders worldwide, ranging from industry to labour organizations and civil society, mobilised to respond to this need. The breadth of initiatives launched to tackle these issues is impressive. Perhaps most visible are the Bangladesh Accord on Fire and Building Safety and the Alliance for Bangladesh Worker Safety. Together, these initiatives have joined over 250 brands, retailers and their suppliers to inspect and upgrade shared factories, demonstrating that a sector-wide approach to building safer supply chains is not only feasible but effective. During my last trip to Bangladesh, I witnessed the great progress these initiatives have made. The Accord and the Alliance are only two responses amongst many since the Rana Plaza tragedy.

A common understanding of company responsibility in an age of globalization

Rana Plaza was a subcontractor to many garment companies, meaning that in many cases global brands did not place their orders directly with factories operating out of Rana Plaza. Furthermore, in some cases the subcontracting was illegal. While there was already general agreement in the sector that companies should identify and address risks with direct suppliers, the complexities of Rana Plaza raised the question, whose responsibility is due diligence when we look beyond direct contractors and further up the supply chain?

The OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights are clear: companies have a responsibility to identify, prevent, mitigate and account for adverse impacts in their supply chains. In June 2015 the G7 promoted international efforts to promulgate industry-wide due diligence standards in the textile and ready-made garment sector.

On 8 February 2017 the OECD will launch a Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector which responds to this call. This Guidance, developed through an intense multi-stakeholder process, supports a common understanding of due diligence and responsible supply chain management in the sector.

The Guidance is a global instrument

This is really a global instrument, contributing towards a level playing field for responsible business conduct. The OECD Guidelines apply to all companies operating in or sourcing from the 46 adhering countries, but they are likewise relevant for any company operating in their global supply chains. The Guidelines are relevant for a Bangladeshi factory that sells to companies in the US, even while Bangladesh itself is not an Adherent, just as they are relevant for cotton producers in Pakistan exporting to EU markets. OECD , demonstrating the global reach of the OECD Guidelines in the garment sector alone.

Adherents to the OECD Guidelines account for over 72% of world imports of clothing

The relevance of the OECD Guidelines globally is no longer hypothetical. The National Contact Points (NCPs), the globally active grievance mechanism of the Guidelines, have already handled several cases related to due diligence in the garment and footwear sector. For example, the Danish NCP recently concluded its consideration of a case involving PWT Group, a Danish retailer, for failing to carry out due diligence in relation to its textile manufacturer in the Rana Plaza building. Both the Guidance and the conclusions of the Danish NCP in this case are significant for the future of human rights due diligence in the textile sector globally.

The Guidance is progressive, realistic and balanced

The Guidance encourages the sector to think differently and to react differently, but does so in a progressive, balanced, and realistic way. Under the Guidance, companies are expected to scope risks across the full length of their supply chain, including risks related to subcontracting and homeworkers. Moreover, this assessment moves beyond auditing to not only identify labour, human rights and environmental impacts, but also understand why they are occurring. This tailor-made approach to risk assessment recognises that risks in the garment and footwear sector are very different and the assessment methodologies should reflect these differences. An assessment for child labour and forced labour should not be the same as an assessment of occupational health and safety or wage compliance. This Guidance also recognises the challenge of ‘audit fatigue’, so it pushes the sector towards harmonised assessments and most importantly effective monitoring.

While the Guidance is ambitious, it is also realistic. Addressing the full range of challenges in the sector all at once is mission impossible for brands with vast supply chains that go several layers deep. So brands will have to prioritise issues where the impacts are most severe. This could be, for example in relation to hazardous chemicals in finishing or forced labour in cotton.

Finally, the Guidance recognises the diversity of actors in this sector and the diversity of sourcing models. It does not prescribe a one-size-fits all approach, seeking rather to provide recommendations for how companies can carry out due diligence given their circumstances (size, context, etc). For example, the Guidance recognises that companies may source materials and products directly from suppliers or indirectly through buying agents and provides tailored recommendations for each. Similarly, it acknowledges the role subcontracting plays and therefore recommendations point more to ‘responsible subcontracting’ than always ruling out subcontracting altogether.

No more neo-colonial top-down system

In November of last year I participated as a panellist in India on responsible garment supply chains. A fellow panellist, a factory owner, called the traditional garment audit model a colonialist approach: ‘Western brands telling the developing country factories what to do’. With the new OECD Due Diligence Guidance we finally say goodbye to this neo-colonialist approach. It appreciates the importance of a partnership between buyers, suppliers and workers in identifying methods to address risks and monitor progress over time.

But just as important as this partnership, is the fact that due diligence is not merely about looking outward; it’s also about looking inward. Another remark made by my fellow panellist is that companies do not align their purchasing policies with responsible business policies. For example, brand purchasing officers often ask the factory to cut prices by 10%, while the brand ethical sourcing team asks for a 20% wage rise. In a study conducted by ETI Norway, Suppliers speak up, suppliers responded that paying legal minimum wage and legal overtime premiums would increase labour costs by 10-20%. However, despite this reality, little science goes into price-setting by brands and retailers. So functional alignment of brand policies needs to be part of due diligence.

Under the OECD Due Diligence Guidance, companies, particularly brands and retailers, are expected to assess their own purchasing practices and determine how their price setting and ordering may be contributing to excessive overtime, low wages, precarious contracts, illegal subcontracting, etc. Personally, I think that embedding responsibility indicators in the bonuses or performance appraisals of purchasing officers should incentivise due diligence; otherwise due diligence and respect for human rights will stay a peripheral issue.

The new global instrument for garment due diligence that will be launched next week at the OECD Roundtable on Due Diligence in the Garment and Footwear Sector can change the fashion industry worldwide. It is global, progressive, and realistic, and assists in more mature supply chain dialogues than the neo-colonialist audit system. Now is the time to implement and make fair fashion the standard.

Useful links

More on the garment industry and on due diligence on OECD Insights

National Action Plans on Business and Human Rights: Strong support for OECD’s Responsible Business Grievance Mechanism

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct and Froukje Boele, Policy Analyst Responsible Business Conduct, OECD

The year 2017 got off to a good start for business and human rights with a number of prominent National Action Plans (NAPs) finalised last December right in time for Christmas. The fresh German, Italian, Swiss and US NAPs resemble each other by placing the OECD Guidelines and the attached grievance mechanism at the forefront of efforts to promote responsible business conduct for enterprises operating at home and abroad. They also acknowledge the alignment between its Human Rights Chapter and the UN Guiding Principles on Business and Human Rights. Moreover the NAPs uphold and strengthen the National Contact Point (NCP) system of the OECD Guidelines as a means for effective problem solving, thereby supporting the OECD’s globally active grievance mechanism for responsible business as a de facto complaints mechanism for the UN Guiding Principles.

Some highlights:

Responsible Supply Chains and Due Diligence

The concept of adequate due diligence – to identify, prevent and mitigate actual and potential adverse impacts of business operations – centres at the heart of the NAPs with action-oriented language on the different OECD sectoral guidelines. Yet Governments emphasize different aspects, for example the German NAP on Business and Human Rights and the Swiss NAP on Business and Human Rights include a particular focus on helping small and medium-sized enterprises.

The US Government’s National Action Plan on Responsible Business Conduct recognises the OECD Due Diligence Guidance for Responsible Minerals Supply Chains from Conflict and High Risk Areas as a key tool for businesses to help them “respect human rights and avoiding contributing to conflict through their mineral sourcing practices.” In this regard, the German and the Italian NAP on Business and Human Rights also point to their involvement in the process of the elaboration of an EU Regulation for supply chain due diligence in this field. If adopted, the Swiss Government also commits to consider the formulation of similar legislative proposals adapted to the Swiss context.

For agriculture, both Switzerland and Italy commit to active implementation of the OECD-FAO Guidance for Responsible Agricultural Supply Chains.

Moreover, in line with Italy’s active involvement to improve standards in the textile sector, its NAP emphasizes the OECD’s work on the Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector, which will be launched next 8 February.

Sensible to the risks involved in the banking industry, Switzerland has included its support for the OECD work on a guide for due diligence in the financial sector in the NAP.

Not only do the NAPs on the whole indicate a high level of support for implementing the outcomes of the proactive sector projects, they also signal a political commitment to engage in their multi-stakeholder advisory groups going forward.

National Contact Points

The role of the NCPs to promote corporate responsibility and deal with issues relating to business and human rights is prevalent throughout the recent NAPs. Delivering on the G 7 Leaders’ Summit Declaration of June 2016, Italy, Germany and the United States recall their commitments to undergo an NCP peer review in 2017.* The plan for Germany also announces the repositioning and further strengthening of its NCP. Interestingly, the US announces it will implement procedures to ensure that stakeholders outside the US and using other languages than English can engage in the NCP process. The NAPs for Germany and Switzerland also make an operational link between the work of the NCPs and national export credits and guarantees. As such, the German NCP is upgraded as a central complaint mechanism for projects for foreign trade promotion and the Swiss Export Risk Insurance Agency is reported to have to take account of the results and evaluations by the NCP.

Policy coherence on responsible business conduct

At the same time, the national action plans send a clear message on policy coherence on corporate responsibility issues and set an example for other countries in the process of developing a NAP. They are comprehensive efforts to ensure alignment between all policies relevant to responsible business with Governments leading by example on issues such as procurement, exports credits but also responsible retirement plans (US NAP). Beyond the national level, the NAPs make a point about international policy coherence by including corporate responsibility commitments in trade and investment agreements, as well as development finance. These are complemented on an operational level with measures to train German and US diplomats abroad.

Conclusion

The high level of commitment to the OECD Guidelines, the NCP system and the OECD sector due diligence instruments will greatly contribute to their visibility and implementation worldwide. They also present promising building blocks for the 2017 German G20 efforts to address RBC and sustainable global supply chains and the Italian G7 Initiative on sustainable global supply chain management. Finally, these 2016 Christmas gifts are full of inspiration for Governments that are in the process of developing a national action plan, for example in Latin America.

*               The peer review of the Swiss NCP is ongoing.

Responsible Algorithms in Business: Robots, fake news, spyware, self-driving cars and corporate responsibility

By Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct (@nieuwenkamp_csr)

This article was originally published on OECD Insights on 13 January 2017.

algorithmsWhy is the topic of robots frequently being raised at recent conferences on responsible business conduct? For example, October last year the Polish Deputy Prime Minister noted the connection between robotisation and corporate responsibility during the opening of the Conference in Warsaw celebrating the 40 years anniversary of the OECD Guidelines for Responsible Business.

The potential negative impacts of robots or automated systems have proved cause for concern. In May 2010 there was a trillion dollar stock market crash, a ‘Flash crash’, attributed to algorithm trading or in other words: robot investors. And let’s not forget the mathematical models that contributed to the financial crisis of 2007 and 2008. Recent events surrounding fakenews, with Pizzagate as the most extreme example, are also contributing to these concerns.

What is the common denominator of these automated systems? Algorithms! These rule-based processes for solving mathematical problems are being applied to more and more areas of our daily lives. Likely, we are only at the beginning of the era of algorithms and their widespread application is raising many ethical questions for society and businesses in particular.

For example ‘Killer robots’, weapons systems that select and attack targets without meaningful human control raise questions about dehumanisation of killing and who is responsible? In December the United Nations decided to set up an expert group, in order to look into this issue following a campaign ‘Stop Killer Robots’ by Human Rights Watch and other NGOs. While self-driving cars will never be at risk of driving while intoxicated they can make decisions that might pose moral dilemmas for humans. Online face recognition technology raises concerns around privacy.  These are just a few examples.

The pervasiveness of the use of algorithms may result in many unintended consequences. In her book ‘Weapons of Math Destruction’ Cathy O’Neil describes how algorithms in combination with big data increase inequality and threaten democracy. She provides examples of the financial crisis and the housing market, but also of a college student who does not get a minimum wage job in a grocery store due to answers provided on a personality test, people whose credit card spending limits are lowered because they shopped at certain stores, etc. She also discussed predictive policing models such as those that predict recidivism and algorithms that send police to patrol areas on the basis of crime data, which can have a racist effect because of harmful or self-fulfilling prophecy feedback loops.

Scholars and practitioners in this field are beginning to consider the ethical implications of application of algorithms. Julia Bossmann of the Foresight institute described her top 9 ethical issues in artificial intelligence. Prof Susan Leigh Anderson of the University of Connecticut stated: “If Hollywood has taught us anything, it’s that robots need ethics.” Cathy O’Neil proposes a ‘Hippocratic oath’ for data scientists. Recently a group of scholars developed Principles for Accountable Algorithms. In the private sector Elon Musk, SpaceX CEO and other business leaders have founded OpenAI, an R&D company created to address ethical issues related to artificial intelligence. Amazon, Facebook, DeepMind, IBM and Microsoft founded a new organisation called the Partnership on Artificial Intelligence to Benefit People & Society. The partnership seeks to facilitate a dialogue on the nature, purpose of artificial intelligence and its impacts on people and society at large. It is encouraging that certain industry efforts are being undertaken in this area. Additionally one thing should be clear for businesses that create and use these technologies: when things go wrong, using algorithms as a scapegoat won’t do the trick.

What guidance on these issues can be found in the most important instrument on business ethics, the OECD Guidelines for Multinational Enterprises (MNE), a multilateral agreement of 46 states on corporate responsibility. Cases brought to National Contact Points, the globally active complaints mechanism of the Guidelines, provide a good illustration of what the Guidelines recommend with respect to these issues. For example, in February of 2013 a consortium of NGOs led by Privacy International (PI) submitted a complaint to the UK National Contact Point (NCP) alleging that Gamma International had supplied a spyware product – Finfisher – to agencies of the Bahrain government which then used it to target pro-democracy activists.

The NCP concluded that Gamma had not acted consistently with the provisions of the OECD Guidelines requiring enterprises to do appropriate due diligence, to undertake a policy commitment to respect human rights and to remediate human rights impacts. Furthermore the company’s approach did not meet with the OECD Guidelines’ standards to respect human rights and the engagement of the company with the NCP process was unsatisfactory, particularly in view of the serious nature of the issues. The NCP recommended that the company engage in human rights due diligence.

What is human rights due diligence and what does it mean for companies developing algorithms? Under the Guidelines due diligence is a process that should be carried out by corporations as part of a broader range of actions to respect human rights. The right to privacy, freedom of speech, freedom from torture and arbitrary detention are examples of the many potential human rights that could be impacted. Due diligence is the process of identifying, preventing and mitigating actual and potential adverse human rights impacts, and accounting for how these impacts are addressed. If there is a risk of severe human rights impacts a heightened form of due diligence is recommended. For example, significant caution should be taken with regard to the sale and distribution of surveillance technology when the buyer is a government with a poor track record of human rights. Due diligence should be applied not only to a company’s activities but across its business relationships. In the context of a company producing algorithms therefore it is not sufficient that they behave responsibly in the context of their own operations but due diligence should also be applied to ensure buyers of the technology are not using it irresponsibly. In instances where this is the case, the company that created and sold the technology is expected to use its leverage in the value chain to prevent or mitigate the impact.

A number of valuable tools to respect human rights and implement the ’know your client’ principle have been developed in the context of ICT business operations. For example, the European Commission has developed a useful guide for companies on respecting human rights in the ICT sector. TechUK, an industry association of ICT companies in the UK, in partnership with the UK government has published a guide on how to design and implement appropriate due diligence processes for assessing cyber security export risks. Additionally the Electronic Frontier Foundation has developed a guide on How Corporations Can Avoid Assisting Repressive Regimes and the Global Network Initiative has developed Principles on Freedom of Expression and Privacy.

Beyond the human rights related recommendations, the OECD Guidelines make other relevant recommendations for companies developing algorithms. For example the Environment Chapter recommends environmental, health and safety impact assessments.[1] The Consumer Chapter advises companies to provide accurate, verifiable and clear information to consumers.[2] In addition companies should respect consumer privacy and take reasonable measures to ensure the security of personal data that they collect, store process or disseminate.[3]

Businesses that create algorithms should do their due diligence on potential human rights impacts. Companies should also carry out due diligence on labour, environmental and health and safety impacts. They should provide accurate verifiable and clear information about their algorithms and take measures to protect personal data. Collaborative industry efforts on responsible algorithms are highly needed to shape these expectations in concrete terms. Responsible algorithms will not only generate profit, but protect the rights of individuals worldwide while doing so.

 

[1]               OECD Guidelines for Multinational Enterprises, Chapter VI.3

[2]               OECD Guidelines for Multinational Enterprises, Chapter VIII.2

[3]               OECD Guidelines for Multinational Enterprises, Chapter VIII.6