Read the final statement issued by the U.S. NCP closing the specific instance – 18 November 2016
On 23 June 2016, European Centre for Democracy and Human Rights, Defenders for Medical Impartiality, and Arabian Rights Watch Association (collectively “the Submitters”), human rights non-governmental organisations, submitted a specific instance to the NCP alleging that the Boeing Company and Lockheed Martin Corporation (collectively “the Companies”) did not observe the Guidelines. The events addressed in the specific instance cover a period from March 2015 to the submission date.
The submitters alleged that the companies failed to take appropriate steps to ensure that their products did not cause or contribute to human rights abuses, and that the companies’ products directly contributed to adverse human rights impacts in Yemen through their use by the government of Saudi Arabia. The submitters also claimed that the companies did not have a relevant human rights policy and did not carry out appropriate human rights due diligence in the sale of their products.
After thorough review of information provided, the NCP decided not to offer mediation, noting that the purpose of the Guidelines is to promote responsible business conduct by multinational enterprises. The specific instance concerned the conduct of particular States, and would have entailed an examination of state conduct, which would not serve to advance the Guidelines.
More specifically, the NCP noted that this specific instance is inextricably intertwined with the practices of specific states, including Saudi Arabia and the United States. Arms sales to Saudi Arabia were completed through two processes: transfers completed by the U.S. government through the FMS program and Direct Commercial Sales (DCS) in which the exports were approved by the U.S. government. All arms transfer decisions are reviewed and approved under the criteria outlined in the Conventional Arms Transfer (CAT) Policy as detailed in Presidential Policy Directive 27 (PPD-27, January 15, 2014). Under PPD-27, the criteria considered includes the “likelihood that the recipient would use the arms to commit human rights abuses or serious violations of international humanitarian law, retransfer the arms to those who would commit human rights abuses or serious violations of international humanitarian law". Additionally, for DCS cases, the State Department considers, pursuant to section 38(a)(2) of the AECA, among other factors, whether the sale would “increase the possibility of outbreak or escalation of conflict” or “support international terrorism". The decision to use arms procured from the United States or these companies is a decision made by Saudi Arabia in its capacity as a sovereign state. However, the use must be consistent with the provisions of the agreement, or license, that was the basis for the sale or approval of the transfer.
Accordingly, this specific instance concerns various state practices, which NCPs are not designed to assess.
This led the NCP to close the specific instance on 18 November 2016. In its final statement, the NCP encouraged all U.S. companies in every sector to carry out human rights due diligence and avoid causing or contributing to adverse human rights impacts, and to consider referencing the OECD Guidelines in company human rights commitments. The NCP also noted that the U.S. government regularly engages with civil society and other stakeholders regarding any concerns with U.S. policy, including on the issues raised in the specific instance, and is available to discuss the issues further with the submitters.