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179Ibid., Annex, III: Global Report.180Ibid., Annex, III: Global Report: A Purpose and Scope. Para. 2.181Ibid., Annex, III: Global Report: A Purpose and Scope. Para. 1.182Ibid., Annex, III: Global Report, B: Modalities. Para. 1: using official information, information gathered inaccordance with established procedures, or on findings of the annual follow-up), para. 2.183Ibid., Annex, III: Global Report, B: Modalities. Para. 2.184Organisation for Economic Co-Operation and Development (OECD). “Guidelines for MultinationalEnterprises.” Declaration and Decisions on International Investment and Multinational Enterprises (DAFFE/IME(2000)20). 8 Nov. 2000. [Hereinafter referred to as OECD. “Guidelines.”]185Organisation for Economic Co-Operation and Development (OECD). Declaration and Decisions on InternationalInvestment and Multinational Enterprises (DAFFE/IME (2000)20). 8 Nov. 2000. The Declaration is composedof the Guidelines, the National Treatment Instrument, an instrument on International Investment Incentivesand Disincentives and an instrument on Conflicting Requirements. For the purpose of this discussion, onlythe Guidelines will be explored. The Guidelines were subject to amendments in 1979, 1984 and 1991; majorrevision began in 1998 with consultations with business, labour and non-governmental organisations. Theofficial revision, completed in 2000, widened the scope of the Guidelines, improved the implementation processand added provisions addressing human rights.186OECD “Guidelines.” Paras. 1, 7.187Ibid., para 10 (“[t]he common aim of the governments adhering to the Guidelines is to encourage the positivecontributions that [MNEs] can make to economic, environmental and social progress and to minimize thedifficulties to which their various operations may give rise. […]. Governments adhering to the Guidelines arecommitted to continual improvement of both domestic and international policies with a view to improving thewelfare and living standards of all people”).188Ibid. As the Guidelines will only be explored in so far as it relates to the CSEC, not all headings are relevant tothe discussion. Obligations related to Environment, Combating Bribery, Consumer Interests, Competition andTaxation will not be explored.189Ibid., 2.190OECD. “Commentary.” The OECD Guidelines for Multinational Enterprises: Revision 2000. Paris: OECDPublications, 2000. [Hereinafter referred to as OECD. “Commentary.” Revision 2000.]191OECD. “Guidelines.” Part I.192Ibid., Part II. See also OECD. “Commentary.” Revision 2000. Para. 1 (“[t]he General Policies chapter […] isimportant for setting the tone and establishing common fundamental principles for specific recommendationsin subsequent chapters”).193OECD. “Guidelines.” Part I, para. 3 (“[t]hese usually comprise companies or other enterprises establishedin more than one country and so linked that they may co-ordinate their operations in various ways. […].Ownership may be private, state or mixed. The Guidelines are address to all the entities within the [MNE](parent companies and/or local entities)”).194Ibid., Part I, para. 7 (Governments have the right to “… prescribe the conditions under which [MNEs] operatewithin their jurisdictions, subject to International Law…”). See also OECD “Commentary.” Revision 2000. Para.2 (“[o]beying domestic law is the first obligation of business. […]. [The Guidelines] represent supplementaryprinciples and standards of behaviour of a non-legal character”).195OECD. “Guidelines.” Part II, paras 1-11.196Ibid., Part II, para. 1.197Ibid., Part II, para. 2. See also “General Policies.” Para. 4 (“… [MNEs] are encouraged to respect human rights,not only in their dealings with employees, but also with respect to others affected by their activities […]”).198Ibid., Part II, para. 3. See also “General Policies.” Para. 5 (refers to human capital formation and employeedevelopment through hiring practices, training and other employee developments).199Ibid., Part I, para. 7.200Ibid., “General Policies.” Para. 3 (“[e]nterprises should be viewed as partners with government in the developmentand use of both voluntary and regulatory approaches […] to policies affecting them”).201Ibid., Part IV, para. 1.202OECD. “Commentary.” Revision 2000. Para. 19 (“[t]his chapter opens with a chapeau that includes a reference118|Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children
to “applicable” law and regulations, [acknowledging] the fact that [MNEs], […], may be subject to national,sub-national, as well as supra-national levels of regulation […]. The terms “prevailing labour relations” and“employment practices” are sufficiently broad to permit a variety of interpretations in light of different nationalcircumstances […]”).203OECD. “Guidelines.” Part IV, para. 1 (a-d)).204OECD. “Commentary.” Revision 2000. Para. 20 (the human rights provisions echo rights found in the ILOsFundamental Principles and that the ILOs Tripartite Declaration can assist in understanding the Guidelines).205See also ibid. Para. 20-22 (The four human rights principles echo the rights in ILO. Declaration on FundamentalPrinciples and Rights at Work. Geneva: ILO, 1977. Specifically, the ‘effective abolition of child labour’refers to ILO Convention 182 concerning the worst forms of child labour and ILO Convention 138 andRecommendation 146, regarding the minimum age of employment (ILO Convention 182: Worst Forms of ChildLabour Convention, 1999; ILO Convention 138: Minimum Age Convention, 1973; and ILO Recommendation146: Minimum Age Recommendation, 1973. Accessed on 14 Oct. 2008 from: www.ilo.org). Furthermore, MNEsmay contribute to the effective abolition of child labour through labour management practices, creation of highquality and well paid jobs and contributing to economic growth, which all address ‘the root causes of povertyin general and of child labour in practice.’ MNEs may also contribute to a ‘lasting solution’ by, for example,raising the standards of education in host countries). Para. 23 (regarding compulsory labour, MNEs are directedto Conventions 29 and 105 (ILO Convention 29: Forced Labour Convention, 1930 and ILO Convention 105:Abolition of Forced Labour Convention, 1957. Accessed on 14 Oct. 2008 from: www.ilo.org). Para. 24 (regardingnon-discrimination, MNEs are directed to ILO Convention 111 which enumerates an unexhausted list ofimpermissible grounds for discrimination in hiring, discharge, pay, promotion, training and retirement (ILOConvention 111: Discrimination (Employment and Occupation) Convention, 1958. Accessed on 14 Oct. 2008from: www.ilo.org).206See OECD “Commentary.” Revision 2000. Para. 53 (“[MNEs] are the main conduit of technology transferacross borders. They contribute to the national innovative capacity of their host countries by generating, diffusing,and even enabling the use of new technologies by domestic enterprises and institutions. The [research anddevelopment] activities of MNEs, when well connected to the national innovation system, can help enhancethe economic and social progress in their host countries”).207See OECD “Guidelines.” Part VIII, paras. 1-5 (MNEs are asked, where applicable, relevant or practical,to contribute to the development of innovative capacity; adopt policies allowing for the ‘rapid diffusion oftechnology and know-how’; develop science and technology to address the needs of local markets; employlocals in science and technology and encourage their training; grant Intellectual Property licenses or technologytransfer, so as to contribute to long-term development prospects of host countries; and participate in researchprojects with local universities, public research institutions and local individuals).208Organisation for Economic Co-Operation and Development (OECD). Declaration and Decisions on InternationalInvestment and Multinational Enterprises (DAFFE/IME (2000)20). 8 Nov. 2000. Part II: 1. Para 1.209Ibid., Part II: 1. Decision of the Council: 1. Para. 1. NCPs. See also Part II: 1. Decision of the Council:Procedural Guidance: I. NCPs, B. Information and Promotion (outlines means by which NCPs will accomplishGuideline promotion).210Ibid., Part II: 1. Decision of the Council: Procedural Guidance: I. NCPs, C. Implementation in SpecificInstances (NCPs will “[m]ake an initial assessment of whether the issues raised merit further examination andrespond to the party or parties raising them”). See also Part II: 1. Decision of the Council: Commentary on theImplementation Procedures: I. Procedural Guidance for NCPs, Implementation in Specific Instances, Para. 14(in making their initial assessment, NCPs will “… determine whether the issue is bona fide and relevant […].”In making this decision, NCPs will take several factors into account, including: a party’s interest in the matter;whether the issue is material and substantiated; the relevance of applicable law and procedures; how similarissues have been treated; and whether consideration of the specific issue would contribute to the purposes andeffectiveness of the guidelines).211Ibid., Part II: 1. Decision of the Council: Procedural Guidance: I. NCPs, C. Implementation in SpecificInstances (NCPs will consult parties involved and, ‘where relevant,’ seek advice from relevant authorities andparties, consult foreign NCPs, seek guidance from CIIME, and offer or facilitate non-adversarial means ofresolution. If parties do not come to a resolution, NCPs may make “recommendations” on the implementationPrivate Sector Accountability in Combating the Commercial Sexual Exploitation of Children|119
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PRIVATE SECTOR ACCOUNTABILITYIN COM
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3. Travel and Tourism Sub-Sector 63
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Executive SummarySince the First an
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from the sale of child pornography
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1.1 Defining Commercial Sexual Expl
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The issue of commercial sexual expl
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1.2.1 Transnational and multination
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offer stronger protections against,
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1.3 Defining Corporate Social Respo
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Parliament passed a law requiring a
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2. International Standards and the
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In terms of international law, the
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alia: establish the grounds for cri
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The ILO Convention No. 138, Concern
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2.4 Existing Legal Mechanisms to En
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2.4.2 Existing mechanisms for regul
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Governments play an auxiliary role
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lack of ) monitoring and enforcemen
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who follow relevant international l
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the Commentary references the rule
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2.4.2.1.2.1 Tripartite DeclarationT
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Unlike the preceding sections, whic
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A major criticism of the Tripartite
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MNEs are asked to respect worker’
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Guidelines voluntary, but non-OECD
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An alternative to the above is to r
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freedom from state interference in
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During the Nuremburg Tribunals, Ger
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ATCA expanded liability for interna
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Pursuant to the holding in Kadic re
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The Court could establish jurisdict
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likely come across similar obstacle
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ecognised by customary internationa
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The report draws together a number
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means of fostering international pe
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Page 132 and 133: 310Ibid., 12.311Council of Europe,
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