Part 16: The U.S. National Contact Point: Corporate Social Responsibility Between Nationalism, Internationalism and Private Markets Based Globalization

 (Pix Source HERE)

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2013 this site introduces a new theme: The U.S. National Contact Point: Corporate Social Responsibility Between Nationalism, Internationalism and Private Markets Based Globalization.

Part 16:  The U.S. NCP and the Scope of its Information and Promotion Functions.

This series builds on some ideas I have been working through for a number of years relating to a fundamental shift in the approaches to corporate governance that broaden the ambit of corporate governance issues from a singular focus on internal governance (the relationships among officers, shareholders and directors) to one that includes corporate behavior and the standards by which officers, directors and shareholders exercise their respective governance authority. This shift also changes the scope of what is understood as "law" to be applied to issues of corporate governance, from one principally focused on national law to governance norms that may be sourced in the declarations and other governance interventions of public and private international bodies. Lastly, it appears to point to an evolution to the role of the state from the principal source of standards and enforcer of law to a vehicle for the implementation of international standards  in which enforcement power is left to global market actors--principally consumers and investors function of the decisions of global actors.  All of this is inconsistent with traditional notions of the role of law, the scope of corporate governance and the nature of corporate social responsibility int he United States.  The extent to which the United States participates in the construction of these autonomous international systems may suggest the direction in which government policy may be moving away from the traditional consensus of corporate responsibility to something perhaps entirely new.

This post examines the way in which the informational and promotion role of the US NCP mirrors and harmonizes with the US NCP's approach to specific instance claims under the MNE Guidelines. The obsession with confidentiality, and therefore the extensive suspicion of transparency, ironic given the emphasis on transparency of the MNE Guidelines (see Backer, Larry Catá, Transparency Between Norm, Technique and Property in International Law and Governance--The Example of Corporate Disclosure Regimes and Environmental Impacts, Minnesota Journal of International Law 22:-- (forthcoming 2012)) , the narrowness of the interpretation of its obligations as an adhering state in the context of information sharing, suggest that the NCP's approach to specific instance claims is part of a broader approach to the U.S.'s engagement with its OECD obligations, one that continues to emphasize the foreignness of that work and its utility only for the projection of U.S. policy (now cloaked within the internationalism of the OECD).

 (Kitty in a bag, pix (c) Kelly W. Kay 2013)

Part 16: The U.S. NCP and the Scope of its Information and Promotion Functions.

We have now seen the extent to which the core policy decision of the United States--to contain the MNE Guidelines project for use solely as an instrument of foreign policy, and thereby insulating the U.S. domestic sphere from its application. We have also demonstrated the extent to which the practices of the US NCP, whether under the more restrictive practices of the Bush Administration or the reorganized and more open operational framework of the Obama Administration, continues to adhere to this basic premise of U.S. policy.

The US NCP's efforts at information and promotion of the MNE Guidelines suggest a coordinated approach to this narrow application.  The US NCP provides a dedicated website (www.state.gov/usncp), but the US NCP does not make available its annual reports on line or otherwise.  While it does report up the chain of command at the State Department , it does not conduct surveys or collect data documenting enterprise awareness of the MNE Guidelines.  It does, however about enterprise awareness of the MNE Guidelines! Internal projection, thern, is minimal and deferential.  The US NCP treats these MNE Guidelines as mere aspirational principles with no real effect, except perhaps in dealing with the foreign operations of US multinationals.

With transparency at a minimum and outreach primitive, it will come as little surprise that its awareness campaigns are clubby--in the sense of speaking awareness to a small, remote and insular group of people who tend to travel int he same circles within government, academia and business, who are expected somehow and form on high to push down their understanding , down to the masses where policy might have a functional effect. The awareness campaigns, then, exhibit the hallmarks of cronyism that does little to functionally meet the objectives of the MNE Guidelines while appearing to conform fully to their formal expectations. And even this outreach is undertaken sparingly--a grand total of nine (9) interventions in 1011-2012, all to insider groups is hardly a basis for broad dissemination of the MNE Guidelines.

Within the state apparatus, awareness is also circumspect and restrained.  Participation in the usual array of interlocking committees is the backbone of these efforts-- the Inter agency Working Group is essentially the outlet for these inter-governmental efforts. The ineffectiveness of this arrangement is apparent by the product of these interactions over the long period of time this arrangement has been in place.  More telling perhaps is that these arrangements represent no change form the practices of the Bush Administration. More effective has been its role in foreign policy related endeavors--from cooperation with the Export-Import Bank  to its outreach (feeble though it may be) through cables and other communications to US embassies abroad. It's expected more close cooperation with the ILO and the Human Rights Commission also emphasizes the outward thrust of efforts,.

This from the US NCP's 2012 Report (U.S. Department of State, Common Framework for Annual Reporting by National Contact Points for the Period 1 July 2011 -30 June 2012, DAF/INV/NCP/RD(2012)2/REV1:

 

Section B of the Procedural Guidance requires NCPs to raise awareness of the Guidelines and their implementation procedures with stakeholders, partner organizations and interested public, and to actively promote their use. Cooperation between NCPs, stakeholder institutional networks and partner organizations can play an important role in enhancing the effectiveness of information and promotional activities on the Guidelines.

7. “The National Contact Points will 1. make the Guidelines known and available by appropriate means, including through online information, and in national languages. (...) 2. raise awareness of the Guidelines and their implementation procedures (...). (Procedural Guidance, I.B.1-2)
a.	Does the NCP have a dedicated website or dedicated webpages? Please provide the exact link.
	The U.S. NCP updated and expanded the content of its website, in line with recommendations from the 2011 update of the Guidelines and the revision of the U.S. NCP procedures. The dedicated webpage is: www.state.gov/usncp
b.	Have the 2011 Guidelines been translated into the national language/s? Any other? Are they available online? Are they made available by other appropriate means? (Printed version of the translated texts, brochures, etc. If so, please elaborate)
	The U.S. NCP has made the 2011 Guidelines available on-line on its website, in English. We have distributed printed fact sheets summarizing the Guidelines and the role and activities of the NCP to the public. The U.S. NCP has not translated the Guidelines into other languages.
c.	Has your NCP Annual Report to the OECD been made available online? If yes, in which language?
	No
d.	Has your NCP Annual Report to the OECD been disseminated by means other than the web? If yes, which ones and in which language?
	No
e.	Is the NCP required to report within the Government on a regular basis its activities? For example to Parliament?
	The U.S. NCP reports monthly about its activities to the Office of the Assistant Secretary for Economic and Business Affairs, and holds monthly meetings with the Interagency Working Group.
f.	Does the NCP conduct surveys or collect data documenting enterprises’ awareness and use of the Guidelines, such as references in corporate codes of conduct? Please provide relevant details.
	The U.S. NCP has not yet conducted this type of survey, but does ask business and civil society stakeholders about awareness and relevance of the Guidelines to these groups' activities.    8. “NCPs will raise awareness of the Guidelines and their implementation procedures, including through co- operation, as appropriate, with the business community, worker organisations, other nongovernmental organisations, and the interested public.” (Procedural Guidance, I.B.2). “NCPs will co-operate with a wide variety of organizations and individuals, including, as appropriate, the business community, worker organisations, other non-governmental organisations, and other interested parties. Such organisations have a strong stake in the promotion of the Guidelines and their institutional networks provide opportunities for promotion that, if used for this purpose, will greatly enhance the efforts of NCPs in this regard.” (Procedural Guidance, Commentary, I.16) “Prospective investors (inward and outward) should be informed about the Guidelines as appropriate.” (Procedural Guidance, I.B.1) a. How does the NCP promote the Guidelines and their implementation procedures? Does the NCP have a promotional plan on the Guidelines? If yes, please elaborate. The U.S. NCP meets regularly with representatives of the business community and civil society stakeholders regarding the Guidelines, and speaks at conferences, public or internal meetings, and in academic settings. The U.S. NCP also works closely with U.S. Embassies around the world to disseminate information to U.S. businesses as well as overseas stakeholders about the Guidelines and their implementation. The U.S. NCP updated its website and has produced and distributed a fact sheet summarizing the Guidelines and the role and function of the NCP. b. Did the NCP organise or participate in meetings/seminars/conferences to promote the Guidelines and their implementation procedures? Please elaborate with reference to the reporting period. Yes- U.S. Council for International Business CSR Committee meeting, Washington D.C., May 2012 and October 2011 U.S. State Department Workshop on Implementation of the UN Guiding Principles on Business and Human Rights, Washington D.C., April 2012 U.S. State Department CSR Initiatives conference, Washington D.C., April 2012 Tuesday Group (Washington-based sustainable development and human rights NGOs) meeting, Washington D.C., March 2012 OECD National Contact Points and the Extractives Sector conference, London, March 2012 Business for Social Responsibility conference, San Francisco, November 2011 U.S. NCP and International Finance Corporation Compliance Advisor Ombudsman Roundtable on dispute resolution and outreach activities, Washington D.C., October 2011. Washington International Business Council meeting, Washington D.C., October 2011 Fordham Law School International Law Symposium, New York City, October 2011 c. How has the NCP made use of available institutional networks or representatives of the business community, worker organisations, non-governmental organisations and the interested public to raise awareness and promote the Guidelines and their implementation procedures? The United States looks to the ACIEP and SAB as the main bodies for advice on how to raise awareness and promote the Guidelines. We will also continue our close working relations with U.S. companies, trade associations, labor unions, civil society, academic institutions and multilateral organizations. We will welcome recommendations from the ACIEP and the SAB on what new business and civil society counterparts to build relations with. d. How does the NCP promote the Guidelines within Government? Please elaborate. The U.S. NCP has focused its promotion of the Guidelines within the U.S. Government through its long- standing work and relationships with agencies in the Interagency Working Group, which includes representatives from the Department of Commerce, the Department of Labor, the Department of the Treasury, the Office of the U.S. Trade Representative, and the Environmental Protection Agency. The working group also includes Department of State officials from the Office of the Legal Adviser; the Bureau of Democracy, Human Rights, and Labor; the Bureau of Oceans, International Environmental and Scientific Affairs; regional country desk officers; and officers at U.S. missions abroad, as appropriate. e. How is co-operation with state entities (export credits agency, investment state-owned enterprises, overseas investment guarantee and inward investment promotion programs,..) organized, in matters concerning information and promotion of the Guidelines and their implementation? The NCP is also invited to update (in tracked change mode) Annex 1, which describes the links that have been established between the Guidelines and the Export Credit, Overseas Investment Guarantee and Inward Investment Promotion Programs. The U.S. NCP has collaborated with the Export-Import Bank of the United States (EXIM) on providing information on the Guidelines to applicants for the Bank’s financing programs in support of U.S. business activities abroad, and will continue this process. f. What use has been made of embassies, notably in emerging markets and other non-adhering countries for raising awareness and promoting the Guidelines? The U.S. NCP has reached out on a regular basis, through cables and other communications, to U.S. Embassies around the world, to promote the Guidelines in host countries, including emerging markets and non-adhering countries. g. Does the NCP relate to OECD partner organizations and/or other leading corporate responsibility instruments, such as the ILO/ILO Conventions/ILO Tripartite Declaration on Multinational Enterprises and Social Policy, the UN Global Compact and its local networks, the UN High Commissioner on Human Rights, the Global Reporting Initiative? The U.S. NCP looks forward to increasing its collaboration with these organizations. h. Have enquiries been received on the Guidelines and their implementation procedures from: (a) other NCPs; (b) the business community, labour organisations, other non-governmental organisations, or the public; or (c) governments of non-adhering countries? Please elaborate on the nature and content of these enquiries where appropriate and on how they were handled. The U.S. NCP regularly receives inquiries from other NCPs, the business community, organized labor, civil society and the public regarding the Guidelines and implementation. The U.S. NCP has regular and close working relations with a number of other NCPs, particularly regarding specific instances. In response to inquiries from academia, business groups and civil society, the U.S. NCP has held consultations and participated in panel discussions about the NCP's work and the Guidelines.