In 2016 the United States Government published its first National Action Plan on Responsible Business Conduct. It was viewed positively by many. But not by me. My assessment was short and not entirely positive:
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. (On
the U.S. National Action Plan on Responsible Business Conduct--Business
and Human Rights: Public Leadership and Private Governance (2016))
That assessment, in turn, reflected a substantial concern that the NAP process itself provided States with the opportunity to avoid confronting the deficiencies of their engagement with the State duty to protect by encouraging the crafting of aspirational pamphlets of encouragement for the extraterritorial application of international human rights law/norms which in important ways would have no internal effects (discussion over the course of years here, here, here, here, here
On June 16, 2021, Secretary of State Antony Blinken announced on behalf
of the Biden-Harris Administration that the Department would soon begin
updating and revitalizing the United States’ National Action Plan on
Responsible Business Conduct (NAP RBC) for U.S. businesses operating and
investing abroad (discussed here). At the time, Secretary of State Anthony Blink was quoted as saying:
Businesses can provide crucial support for democratic principles, including respect for human and labor rights. They have the capacity to help shape society and the environment – raising local wages, improving working conditions, building trust with communities, and operating sustainably. As a result, businesses have a key role in addressing human rights abuses, including throughout their value chains. (here)
In 2024, after extensive consultations among selected stakeholders, the U.S. Government has issued its revised 2024 National Action Plan on Responsible Βusiness Conduct. Its Press Release framed that effort this way:
Businesses adhering to strong responsible business conduct (RBC) practices throughout their value chains can lift standards around the world and help level the playing field, including for U.S.-based businesses and workers. The U.S. government uses a range of tools to promote and incentivize RBC, including prohibitions against federal contractors and sub-contractors engaging in trafficking in persons or using forced labor or indentured child labor; technical assistance and programming to prevent child labor, forced labor, and human trafficking in global supply chains; preferential purchasing for contractors engaged in sustainable environmental practices; import and export controls; trade-related regulations; sanctions; and visa restrictions.
The Biden-Harris Administration’s release of the United States’ second National Action Plan (NAP) on Responsible Business Conduct reflects a whole-of-government commitment to strengthen RBC. Agencies across the U.S. government have pursued policies, initiatives, and programming focused on RBC to promote respect for human and labor rights, expand use of green energy, further a just transition, counter corruption, protect human rights defenders, advance gender equity and equality, and promote rights-respecting use of technology.
2024 United States Government National Action Plan on Responsible Business Conduct
FACT SHEET: U.S Government’s National Action Plan on Responsible Business Conduct
And, indeed, much has changed since 2016--and particularly the principles and objectives driving U.S. efforts to develop some sort of policy chapeau over business conduct that the state can give the "responsible" imprimatur. The difference is quite notable when one compares the way each was framed at the time of their distribution. In the opening page of the 2016 US NAP, then Secretary of State John Kerry wrote:
The United States is committed to promoting human rights and leading the global fight against corruption. . . U.S. companies are among the most sought-after partners across the globe because they take seriously their responsibility to follow the rule of law, uphold human and labor rights, and strengthen the communities in which they operate. . . We undertook this process to enhance coordination within our government, push for higher standards and a more level playing field globally, and strengthen public-private coordination to help U.S. companies attain their responsible conduct goals in a variety of environments around the world. (US NAP, p. 1)).
In 2024, the Introduction to the 2024 US NAP took a slightly different tone:
To mark the 10th anniversary of the UNGPs on June 16, 2021, Secretary Antony Blinken announced the USG’s intent to revitalize and update the NAP. While this NAP addresses the full range of RBC issues for U.S. businesses operating and investing abroad, it focuses principally on the business responsibility to respect human rights, including through effective due diligence in a rapidly changing risk environment. . . Under the Biden Administration, agencies across the USG have pursued policies, initiatives, and programming to promote respect for human and labor rights, expand the use of green energy, further a just transition, counter corruption, protect human rights defenders (HRDs), advance gender equity and
equality, and promote rights-respecting technology. (2024 US NAP p. 3, 4)
One moves here from collaboration and incentive to compliance based regimes overseen by a blended techno-bureaucracy of public and private functionaries constituted to align economic productivity with public policy, and public policy around human rights (consider a European perspective here)--but only in their outbound activities (longer discussion here). The alignment of the spheres of politics, law, and economic activity--subsumed within the overarching principles of international human rights--requires a refocus of the enterprise of business and human rights as a legal-policy matter from the State duty to protect human rights to the corporate responsibility to respect human rights. That is, that in the context of business and human rights, States are far better equipped to transpose public regulatory structures onto private activity than they are, for the moment at least, to actually bind themselves and their domestic legal orders to the very international human rights regime they are more than eager to foist down supply chains beyond the borders of the State.
Fair enough.
But one is still very much within the sphere's of incentive systems and incentives based compliance regimes. There is still a great distance between this approach and those privileging legalization or direct state direction (these find more fertile ground in Europe and in Marxist-Leninist states). Here one encounters a re-affirmation of the fundamental approach and sensibilities (which themselves have been evolving since the 1970s) of the Organization for Economic Cooperation and Development (OECD), the group that tends to include many "home" states in goal economic production networks. That makes a lot of sense, especially given the strength (still) of markets driven development and the protection of the autonomy of natural and legal persons in what is still understood as a private sphere of activity (a close look at the Business Roundtable (re)statement on corporate purpose makes that clear enough). That does not suggest laissez faire in the style of Milton Friedman--it does suggest that public policy creates guard rails and expectations but does not drive micro-decision making. That is, public policy does not drive economic production (its character and choices); rather public policy creates the "playing field" within those choices can be made in conformity to collective expectations, duties, and obligations (some of which are written into law especially in the guise of compliance measures and "hardened" private law; see also here).
The fundamental operative structure of the UNGP State duty to protect was grounded on the premise of international legality embedded within the principles of the state system. And that, in turn, is still, more or less, grounded n the nation of the contractual nature of international law, and the aspirational nature of international norms. True enough, the transformation of international law from contract to constituting instrument (that is from treaties memorializing norms and a duty to transpose them into domestic legal orders to treaties that constitute an institutional apparatus onto which certain authority is delegated; the classic version of which might be José Alvarez's International Organizations as Law Makers (OUP, 2006) proceeds apace. And the trajectory and implications of that transformation are substantially irresistible at this point--absent crisis. Still, State's remain protective of their authority (undisturbed in the UNGP) that (with the customary exceptional cases) to embrace or reject what may be proffered for their consideration either in the form of treaty obligation or the product of treaty bodies.
The United States, like the People's Republic of China, are no exceptions to this sensibility, and in a sense siblings in their shared view of the prerogatives of (powerful) states within the state system and its institutional apparatus.
And thus, it ought not surprise that the emphasis on a quasi-legalization, or exhortation toward that goal (even in hybrid form), of the corporate responsibility to respect human rights, based on international law, and applied only beyond the territorial borders of the home state becomes the centerpiece of State strategies for compliance with its duty to protect human rights. The irony is inescapable, as is the resulting transformation of the State duty from one that might have been centered on the alignment of a State's domestic legal order with its international human rights duty, to one grounded in exteriorization of the State duty beyond its territories and governmentalization of economic actors as agents for implementation of extraterritorial human rights regimes.
To that end an apparatus is necessary; in this case a Federal Advisory Committee on Responsible Business Conduct, that might serve as a platform in which public and private consumers of responsible business conduct (RBC) might "come to market." (2024 US NAP, p. 11). But the driving force is still exteriorization of rights based compliance, however broadly it is dressed up in the COED-inspired language of RBC. It also requires the cultivation, long resisted in the US, of a greater openness toward non-judicial state based remedies created (through the OECD National Contact Point organs),
The OECD’s work on RBC is delivered through the OECD Centre for Responsible Business Conduct. The RBC Centre, which is part of the OECD Directorate for Financial and Enterprise Affairs, works with governments, business, workers and civil society to promote the implementation of the OECD Guidelines. The RBC Centre provides the Secretariat to the Working Party on Responsible Business Conduct, composed of representatives of all governments adhering to the Guidelines. The Working Party’s mandate includes supporting governments in designing policies for responsible business conduct, developing guidance to business of how to implement due diligence and promoting its implementation, and strengthening access to remedy through National Contact Points for RBC. (HERE)
The OECD principles and mechanisms also come with their own guiding apparatus--the OECD Working Party on Responsible Business Conduct established in 2012 and serving as a sort of capacity building and guidance mechanism around RBC. Lastly, the 2024 US NAP approach is one that permits the strategic aligning of favored
elements of international human rights law/norms that align with current
USG policy priorities with US procurement policies, and the USG's increasingly important sanctions mechanisms (now converging with human rights priorities). This aligns with the explanation of RBG offered in the 2024 US NAP--"based on the growing evidence that businesses can perform well while
doing good and that governments should create and facilitate the
conditions for this to take place." (2024 US NAP, p. 3, n. 1).
At the center of RBC, and operationalization mechanisms are the OECD Guidelines for Multinational Enterprises, "an international legal instrument, adopted by all OECD members and open
for adherence to interested non-OECD members. To date, around 50
countries have adhered to the Guidelines or are in the process of
adhering. These countries represent some of the largest markets in the
world and a large majority of global trade and investment activity" (HERE). This multi-lateral apparatus has been acquiring some quasi-jurisprudential and regulatory heft over the last twenty or so years (see my early discussion in “Rights And Accountability In Development
(Raid) V Das Air (21
July 2008) And Global Witness V Afrimex (28 August 2008);
Small Steps Toward an Autonomous Transnational Legal System for the Regulation
of Multinational Corporations,” (2009) 10(1) Melbourne
Journal Of International Law 258-307). Thus a necessary element of exteriorization involves alignments with supra-national blocs of like minded states--in this case the OECD-- through which their values can be crammed down supply chains (the US variation of what is sometimes referred to as the European "Brussels Effect"). And, like the Norwegian Pension Fund Global, that institutional apparatus is meant to privilege national priorities in international spaces (2024 US NAP pp. 15-39; the operational guts of the 2024 US NAP) (e.g. here).
The 2024 US NAP, on balance represents a step toward an evolution of US engagement with the issues of business and human rights in economic activity, as it intersects with critical developments in tastes and expectations for governance, their modalities, and the balance between individual autonomy to drive choices and public policy that shapes them (overseen by techno-bureaucracies seeded within the apparatus of public and private institutions). It provides a strong statement of an approach that is quite distinct from that of the Europeans and that of Marxist-Leninist States (for a comparison of first principles driving structures that might be applied to business and human rights see here, here, and here).
The bottom line: The 2024 US NAP shows promise and is exceptionally useful as a memorial of current US policy under the current political administration. First the positives:
1. The strong alignment with the structures and sensibilities of the OECD--including its normative formulations (the OECD Guidelines for Multinational Enterprises), and its "soft" remedial mechanisms (through the National Contact Points). But more important than that is the convergence with the underlying first principles of OECD approaches to governance--markets driven, state regulatory, soft law frameworks, and incentives based nudging that reflects a dialectic between public policy and private expectation (consider eg here, and here).
2. The deepening of U.S. policy commitment from traditional corporate social responsibility sensibilities to RBC--understood to embrace both human rights and sustainability, as well as "good governance" issues (eg here, and here; in this case built around the concept of corruption). Yet lost in the shift is the relationship between the normative values of RBC and the modalities of its realization. In particular, the now generations long marginalization of philanthropy is to be lamented both in its own right and as an important expression of RBC in some cultures.
3.The detailed and comprehensive mapping of the role of the State and its administrative organs in facilitating RBC (that is in constructing the structural elements and guidance through which RBC can be identified, measured, assessed, and guided as context changes).
4. The transparent development of prioritization in governmental nudging efforts in furtherance of policy objectives.
5.The 2024 US NAP approach falls plausibly within a certain way of interpreting the spirit of the UNGP as well as its approach to state obligation to facilitate the 2nd pillar corporate responsibility to respect human rights.
And then the negatives:
1. The characterization of the RBC project--and its due diligence methodologies--as something to be projected out from the US, rather than applied both within the (home) state and elsewhere. The dangers are well known. The first touches on the construction of dual law/compliance/norm/expectation systems--one to be applied to the home state activities of enterprises and the other applicable elsewhere. The second is the continuing treatment of international law as something alien though useful to home state. The third is that it tends to cabin RBC and its human rights elements within the foreign policy and US external relations circles, further inhibiting the naturalization of its principles within the US domestic order (legal and otherwise).
2. The 2024 US NAP leaves unresolved the core issues exposed by both the OECD Guidelines and the UN Guiding Principles for Business and Human Rights: is economic activity an instrument for the realization of public policy objectives (macro and micro) or is public policy an instrument for the realization of economic activity reflective of social expectations? Within this issue are comfortably lodged the usual questions that most people like to avoid (because consensus among elites, for example, is very difficult to come by at this moment): the morality of profit and the further morality of profit distribution to holders of interest in capital; the morality of leaving to autonomous choice (not directed by or for the benefit of the State)choices in economic activity; the valuation of inputs and outputs of production; ad the like. On the other hand, the lack of resolution may be understood as a positive--at least within the context of the US political-economic model.
3. The 2024 US NAP is grounded on capacity building. That raises three potential issues of implementation: First, much of the structures of internal capacity have already been developed or are in the process of development to some extent. But capacity dissemination in the US administrative apparatus is thin--at best, and in this case effectively confined to the US foreign relations apparatus. Second, it is not clear how effectively knowledge and norm capacity can be imparted into the objects of all this effort. The traditional approaches, now well practiced, for example, by IFIs, have had mixed results. Third, it is not clear that, beyond funding the crafting of the 2024 US NAP the state is willing to appropriate sufficient funds to effectively implement the NAP. This challenge is heightened given the timing of the announcement of the 2024 US NAP: at the start of what is likely to be a particularly brutal US Presidential election cycle. The temptation to view the drafting as the object, rather than its implementation, may be great, even if inadvertent circumstances may produce that result.
4. The human rights prioritization appears to cut both ways. On the positive side it tends to simplify implementation. And it makes the "public policy case" for governmental investment of resources in the project (the way that the business case for RBC considers the benefit of enterprise investment in human rights). At the same time it might raise the concern that is never far from the core of the civil society critique: that human rights are indivisible etc. Yet, the pragmatic turn here would institutionalize a tolerance in the State for a regime of picking and choosing priority human rights. That would align, interestingly enough, with the way that enterprises prioritize among the Sustainability Development Goals to align with their business or enterprise objectives.
The text of the
2024 US NAP and the published "
Fact Sheet" (summary) follow below.
