Codes of Conduct

In one line

Because international law could not impose obligations on companies, it wrote recommendations instead, and the three that matter are the OECD Guidelines of 1976, the ILO Tripartite Declaration of 1977, and the United Nations draft code that was negotiated for two decades and abandoned.

Why codes rather than treaties

A treaty binds States. A corporation cannot be a party to one, cannot be sued under one, and owes nothing under one. Two ways round that were available, and the second was chosen.

The first is to make a treaty obliging every State to regulate corporations within its jurisdiction. That works only if the home State is willing to legislate for conduct abroad, which in the 1970s it was not.

The second is to write a code addressed to the corporations themselves, adopted by States, recommendatory in form, and enforced by publicity, peer pressure and, later, by domestic procedures voluntarily created.

The second is what happened, and everything in this chapter is soft law. Say so in an answer, and say it early, because the examiner's question is usually whether these instruments control anything.

The OECD Guidelines for Multinational Enterprises

Adopted in 1976 as an annex to the Declaration on International Investment and Multinational Enterprises, and revised repeatedly since, most substantially in 2000, in 2011 and again in 2023.

Addressed to enterprises operating in or from the adhering countries, which are the OECD members together with a number of other States that have adhered. The Guidelines therefore follow the enterprise abroad.

Content. Recommendations on disclosure, human rights, employment and industrial relations, environment, combating bribery, consumer interests, science and technology, competition and taxation. The environment chapter recommends an environmental management system, disclosure of environmental information, environmental impact assessment, the precautionary approach, contingency planning for accidents, and continual improvement of environmental performance.

The enforcement idea, which is what distinguishes them. Each adhering State must establish a National Contact Point. Any person, and in practice trade unions and civil society organisations, may raise a specific instance alleging that an enterprise has not observed the Guidelines. The Contact Point offers good offices and mediation and, at the end, publishes a statement. There is no award and no sanction. The output is a published finding.

How to evaluate them. They are the only one of the three with a standing complaints procedure and a large body of published outcomes. They are also entirely voluntary, the Contact Points differ enormously in rigour between States, and a determined enterprise can simply refuse to participate. The 2011 revision aligned the human rights chapter with the Guiding Principles and introduced due diligence and supply-chain expectations, which is the single most important change.