National Action Plans (NAPs) are policy documents in which a State articulates priorities and actions that it will adopt to support the implementation of international, regional, or national obligations and commitments with regard to a given policy area or topic. Reliance on NAPs as a policy approach and governance tool is not limited to the area of business and human rights. On the contrary, calls for NAPs based on the UNGPs follow from their increasing use in a range of other policy areas. (Danish Institute for Human Rights and International Corporate Accountability Roundtable Toolkit for the Development, Implementation and Review of State Commitments to Business and Human Rights Frameworks (June 2014), pp.8, ¶ 2.1)This US-NAP is meant to add to the emerging body of National Action Plans the production of which is being overseen under the guidance of the U.N. Working Group on Business and Human Rights as a means of elaborating state measures to advance the U.N. Guiding Principles for Business and Human Rights (UNGPs).
To help, the Working Group has produced "guidance" on the development of a national action plan. The Guidance was launched on 1 December 2014 at the Third Annual United Nations Forum on Business and Human Rights, held in Geneva 1-3 December 2014. The Guidance was produced following an open, global, year-long consultative process that involved States, companies, civil society, NHRIs and academia. As part of the Working Group's roadmap to produce the Guidance, it published its 2014 report to the 69th session of the UN General Assembly on national action plans. It also consulted with governments on this topic via a 2014 State survey, and it launched an online consultation (Word | PDF) on substantive elements to be included in a national action plan. (UN Working Group, State National Action Plans)
It is loosely against these objectives and methodologies, especially the Toolkit's National Baseline Assessment (NBA) (Toolkit ¶ 4.2 et seq. and Annex 4) that one ought to assess the US NAP. That assessment follows. The U.S.-NAP exhibits all of the weaknesses and missed opportunities that has marked the NAP process for many developed states: it focuses on outward conduct and pays little attention to the human rights effects of economic activity within the United States; it is grounded in the prerogatives of executive command; it provides little assessment of the legal and remedial framework of the United States and its relationship to managing business conduct; and most regrettably, so focused on the present it fails to present a coherent vision, grounded in law and policy, for moving forward. And yet there is a basis for moving forward revealed in the U.S.-NAP, one that might appeal to the incoming American administration--by focusing on disclosure, transparency and information sharing. The U.S.-NAP is at its most powerful and potentially useful not as a direct manifestation of state power through law, but by embracing methods of regulatory governance that enhance the use of market levers to manage preferred behaviors.
The U.S.-NAP appears to conform to the standard approach of pre-2016 NAPs as reviewed by ICAR-ECCJ. The Press Release suggests the Herculean effort necessary to produce this U.S.-NAP, one that took more than two years form its formal announcement. That is curious in some respects. And more curious that it has seen the light of day in the weeks immediately before it may well become irrelevant as a new Presidential Administration may well change course. One, then, might consider this U.S:-NAP as a political document with as much importance to the internal bickering among the elites within the United States as they seek to capture mass imagination and manage mass consensus as it might have on the management of the human rights effects of business activity.ñ More interesting, however, is the focus, not in human rights in business but first on on "Responsible Business Conduct" (RBC), and second on RBC in the outbound activities of U.S. business.
"Because one of the things that we have come to understand is that in order to create successful entrepreneurs, the government also has a role in creating the transparency, and the rule of law, and the ease of doing business, and the anti-corruption agenda that creates a platform for people to succeed”In September 2014 President Obama announced that the United States would create a National Action Plan in order to promote and incentivize responsible business conduct. Following a thorough two year process that included consultations with stakeholders from around the country, as well as significant coordination among over a dozen federal agencies, the United States has published its first National Action Plan on Responsible Business Conduct (RBC).
--President Obama at the Global Entrepreneurship Summit
July 25, 2015, Nairobi, Kenya
Over the past eight years, the administration has taken a number of steps to promote fair play, the rule of law, and high standards for global commerce. Moreover, many U.S. companies are recognized as global leaders in bringing shared value and acting responsibility in the communities where they do business.
This National Action Plan provides a framework by which the government will continue and, indeed, increase our commitment to coordinate on and clearly articulate policies that seek to further promote responsible business conduct, and work with partners in the private sector, as well as other stakeholders, to continuously build on that progress.
1. Governance and resources;
2. Stakeholder participation;
3. National Baseline Assessment (NBA);
4. Scope, content, and priorities;
5. Transparency; and
6. Accountability and follow-up. (Toolkit, supra, ¶6, pp. 40)
RBC principles are encompassed in both the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights. As laid out in these two international frameworks, a key role of governments is to provide guidance and encouragement to the private sector through a combination of laws, regulations, policies, programs, and initiatives to promote companies’ respect for human rights and labor rights and operating responsibly. (U.S.-NAP, pp. 5)
human rights, the rights of indigenous peoples, labor rights, land tenure and property rights, anti-corruption, and transparency. The U.S. government recognizes that environmental issues are also integral to RBC and are affected by, and have an impact on, many of these areas. (U.S.-NAP, pp. 5)
the U.S. government supports RBC principles domestically and has taken meaningful steps to uphold them. For example, the Obama Administration continues to take important steps to strengthen procurement rules to ensure federal purchasing practices reflect U.S. values. This Administration has also articulated a set of “good jobs” principles for businesses operating in the United States. These principles highlight the importance of worker voice, workplace safety, and the fundamental promise of a decent living from a fair day’s work. (U.S.-NAP, pp. 6)
(1) Leading by Example
(2) Collaborating with Stakeholders
(3) Facilitating RBC by Companies
(4) Recognizing Positive Performance
(5) Providing Access to Remedy (U.S.-NAP, pp. 6)
(1) Leading by Example (U.S.-NAP, pp. 7-12)
The U.S. government remains committed to working with governments to raise global standards for RBC, including on labor rights, human rights, and anti-corruption, and to lead a race to the top. Promoting RBC benefits companies from all countries that fight corruption, combat human trafficking, promote labor and human rights, and adhere to high standards.Through leadership on these issues in various international organizations, including the UN and OECD, the U.S. government will continue to advocate for effective implementation of relevant international provisions in order to advance RBC. (Ibid., pp. 7).
(2) Collaborating with Stakeholders (U.S.-NAP, pp. 13-16).
Agencies within the U.S. government have been catalysts for and participants in several MSIs, including providing start-up funding for the formation of the Fair Labor Association, which comprises companies across several sectors as well as academic, civil society, and other participants; facilitating the launch of, and acting as a leading member of, the Voluntary Principles on Security and Human Rights (VP), which guide oil, gas, and mining companies on providing security for their operations in a manner that respects human rights; and helping to launch and actively participating in the development of the ICOC and continued involvement as a member of the board of the ICOC Association.
Through the Extractive Industries Transparency Initiative (EITI), the United States is committed to promoting transparency in the extractives sector by playing an active role on the International EITI Board and Board committees. The U.S. commitment to EITI—both to promote it abroad and to implement it at home —sends a strong signal to our international partners that transparency is critical for countries at all levels of development, and in all regions. (U.S.-NAP, pp. 13.
(3) Facilitating RBC by Companies (U.S.-NAP, pp. 17-21)
The U.S. government generates and vets relevant information that can be used to conduct appropriate due diligence and risk assessment. While the concept of due diligence is increasingly well understood and accepted among businesses, the tools and resources available to effectively conduct detailed and appropriate risk and impact assessments can be sparse, particularly in many of the complex environments where this type of data is most needed.
To help address those gaps, the U.S. government deploys significant resources to produce and disseminate a variety of reports that help describe the state of human rights, labor rights, commercial, and investment conditions across the world, and produces international company profiles to provide U.S. companies with information to help them vet potential business partners.In certain instances, the government also funds third-party reports that contain information useful to those seeking to promote and implement RBC. As part of the ongoing effort to facilitate RBC, the U.S. government will continue to enhance these resources, making them increasingly user-friendly and easier to find for the purposes of corporate human rights due diligence and social impact assessment. (U.S.-NAP, pp. 17).
(4) Recognizing Positive Performance (U.S.-NAP, pp. 22).
As the U.S. government seeks to promote RBC tools and best practices, it is important to recognize and highlight when companies achieve high standards and put these tools into action, with meaningful results for workers, communities, and the company itself. U.S. government agencies recognize specific companies that maintain high standards or have positive development impacts. Rewarding activities helps affirm and draw attention to the significant efforts of deserving companies, and serves to reinforce how the U.S. government and U.S. firms work together to leverage comparative advantages to accomplish shared objectives, whether it be in environmental sustainability, labor rights and human rights, or anti-corruption measures. (U.S.-NAP, pp. 22).
(5) Providing Access to Remedy (U.S.-NAP, pp. 23).
As to remedies in the United States, the U.S. government will continue to help provide access to a grievance mechanism and the potential for remedy through its active USNCP for the OECD’s Specific Instance process and through the World Bank’s Stolen Asset Recovery Initiative. The U.S.government will also seek to strengthen judicial systems in other countries through its foreign assistance programs; to build consensus internationally for strong remedy mechanisms through its participation in the UN, OECD, ILO, and other multinational organizations and fora; and to advance its agenda on remedy through consultations at home with relevant stakeholders. (Ibid).
Annex II: Key Domestic Executive Orders and Regulatory Efforts (U.S.-NAP, pp. 26-29).
The Annex is useful both for the information it provides and for evidencing, without discussion, the extent of the U.S. legal and administrative commitment to RBC. Altogether the list is neither long, nor does it suggest any comprehensive approach to the legalization of RBC within the United States. The connection between the human rights project and U.S: constitutional law is untouched. The consideration of a plan for legislation to domesticate international norm within the United States (and not just beyond our borders) is nowhere to be seen. Instead, the fragility of the RBC project, and its dependence on the Executive Branch and its administrative organs is made manifest. That perhaps, is the greatest insight produced by the U.S.-NAP, though one that might well be regretted.
That said, the United States has not done much worse than other developed states, nor has it shown an unwillingness to consider RBC to some extent. The U.S.-NAP suggests the difficulty of the business and human rights project as a project of legalization. It suggests as well the difficulties, not of elaborating a comprehensive treaty with respect to these issues, but to ensure its implementation. It also underlines the great insight of John Ruggie that the RBC project within globalization, especially in its human rights dimensions, will not be effective unless it is grounded in a strong social pillars (e.g., here).
The DIHR-ICAR Toolkit concludes: "While business entities themselves must take responsibility for their impacts and amend their policies and practices to better respect human rights, it is ultimately up to States, individually and collectively, to protect the human rights of individuals and communities." (Ibid., pp. 56). States continue to fail to fully realize this obligation. Like other NAPS, the U.S.-NAP exhibits the usual weaknesses of these plans. (Assessments of Existing National Action Plans pp. 3-5). It fails to conduct the sort of national baseline assessment essential for forward looking plans; it focuses on current triumphs and offers little by way of a roadmap forward; and it is ed, in the first instance beyond the borders of the United States. The last point is perhaps the greatest indictment of the U.S.-NAP. As Oxfam noted in its reaction to the U.S. NAP,
Take the case of farmworkers in the United States. Many of these workers are undocumented but even those who are citizens are excluded from the National Labor Relations Act which provides for overtime and other important worker protections. This is a significant gap in US law and fails to protect a whole class of workers that are particularly vulnerable to corporate abuse and experience it on a daily basis. This and the many other gaps in our laws are not mentioned or discussed in the US National Action Plan. (Oxfam, Obama’s missed opportunity to rein in corporate abuses (22 Dec. 2016))But perhaps the greatest weakness is the inability of the US.-NAP to develop national measures that are not dependent on the predilections of the current executive administration, that are effectively written into the law of the United States and embedded within its domestic legal-judicial orders. The national measures at the heart of the NAPs, especially evident in the U.S.-NAP are soft measures. These are measures that are grounded in the prerogatives of the Executive--and as ephemeral as the term of office and whims of the Executive. Indeed, the "No Safe Haven Initiative," the "Kleptocracy Asset Recovery" Initiative, the key Executive Orders, and approaches to transparency may not survive the change in Administration. Even more perilous for the authority and value of the U.S.-NAP, each of these executive initiatives may be changed in significant way that leaves the regulated community subject to shifting expectations and little legal recourse against the state. On the other hand, these continue to be projected outward from the United States, rather than universally. While this pattern has been embraced by many states, including the People's Republic of China, the bifurcation of human rights and RBC regimes can only enhance strategic decisionmaking and confusion for enterprises. For the objects of these programs it only adds to the difficulties--and expense--of vindicating rights.
Indeed, an NAP that suggests that dependence of measures on Executive action also poses the risk that rule of law elements of state action--that is of the democracy enhancing development of measures within the domestic legal orders of states--may be weakened by regimes grounded in administrative fiat, even fiat within the discretionary authority of an elected official. Like other NAPs,, the U.S.-NAP the "most significant weaknesses of the NAPs thus far, in terms of content, is that they all do not sufficiently explore regulatory options to ensure adequate human rights protection nor the issue of access to remedy." (Assessments of Existing National Action Plans pp. 4). The failure of the U.S.-NAP to put forward any sort of legislative or regulatory agenda, beyond those for which it encourages enterprises to develop, would seem to weaken the role of the state in the RBC project. It reduces the effectiveness of legalization of norms through Executive action to provide legal certainty and predictability in the way in which the state will support and manage RBC. And the substantial avoidance of putting forward measures touching on remedy makes even the fragile executive actions substantially difficult to vindicate.