A/HRC/38/48
occupational health and safety situations. In the 2012 recommendation members were
asked to consider the issue of human rights, with the aim of reviewing how project-related
human rights impacts might be further addressed in future. There were, however, no
specific recommendations on human rights due diligence.
55.
In 2016, the OECD Council approved a revised version of the Common Approaches.
In that document, there is an explicit statement to the effect that export credit agencies
should now screen all applications covered by the Common Approaches, according to
whether or not there might be a strong likelihood of severe project-related human rights
impacts occurring. 45 Participating export credit agencies should then assess the potential
environmental and/or social risks in applications relating to all existing operations for
which their share is equal to or above SDR 10 million and all existing operations and
projects, irrespective of their share, where screening has identified a strong likelihood of
severe project-related human rights impacts occurring.
56.
In screening an application, export credit agencies will then place the project into
category A, B or C, which imply a requirement for varying levels of environmental and
social review, including environmental and social impact assessments. In addition, where
screening has identified a strong likelihood of severe project-related human rights impacts
occurring, the environmental and social review of a project may need to be complemented
by specific human rights due diligence.
57.
A footnote to the 2016 recommendation provides examples of severe project-related
impacts. For example, impacts that are particularly grave in nature (threats to life, child or
forced labour and human trafficking), widespread in scope (large-scale resettlement and
working conditions across a sector), cannot be remediated (torture, loss of health and
destruction of the land of indigenous peoples) or are related to the operating context of the
project in question (conflict and post-conflict situations).
58.
Specific methods for human rights due diligence are left to the discretion of
individual export credit agencies. Moreover, the due diligence approach described above is
only applicable to applications covered by the Common Approaches and therefore excludes
transactions, such as short-term credit under two years, working capital, support for bonds
and transactions that may be considered outside the current definition of “project”, such as
mobile equipment (for example, ships) and communications equipment. The 2016
recommendation allows for projects backed by an export credit agency to be benchmarked
against the World Bank environmental and social safeguard policies or the International
Finance Corporation (IFC) Environmental and Social Performance Standards, depending on
the financial structure of the transactions. Some export credit agencies have decided to
benchmark all projects against the IFC Performance Standards, but again practice is
variable.
59.
For export credit agencies, the OECD Guidelines should also serve as a key tool
alongside the Guiding Principles. The Guidelines state that the ownership structure of a
multinational enterprise (whether public or private) does not change their applicability. The
Guidelines, which incorporate a human rights chapter aligned with the Guiding Principles,
require export credit agencies, which are business entities themselves, to engage in
appropriate human rights due diligence with respect to their business relationships and to
the extent that they are representatives of the State or public entities, to use their leverage to
require their business partners and clients to do the same.
60.
A recent decision by the Dutch National Contact Point clarifies the status of export
credit agencies. In June 2015, the national contact point system received a complaint
alleging that Dutch export credit agency, Atradius DSB had failed to comply with the
OECD Guidelines in the context of its financing of a dredging project in north-eastern
Brazil, which had resulted in severe human rights and environmental impacts. The
complaint against Atradius stated that it had failed to ensure that the Guiding Principles and
the IFC Performance Standards had been effectively applied to the project. In its initial
assessment, accepting the complaint of 3 December 2015, the Dutch National Contact Point
45
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