I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.
The ninth of the essays is Lisa J, LaPlante, "The United States 2024 National Action Plan on Responsible Business Conduct."
Lisa Laplante's marvelous contribution follows below and may be accessed as originally posted here. Among the important points raised in LaPlante's essay the following resonated particularly strongly and may be worth deeper reflection:
1. One of the most interesting insights of the essay is a background element--positioning the United States on the periphery of BHR raises a number of conceptual and structural elements about the BHR project that produces a quite distinctive way of approaching BHR analytic and normative trajectories.
A. It is clear that the US is on the peripheries of the orthodox BHR project from the perspective of the UN apparatus in Geneva, its premises underlying the production of a BHR narrative, and the creation of structures and guidance for applicant of its vision in what, for them and their adherents, appears to be the best, or at least the orthodox (in its sense of stating what is correct), interpretation of the instruments and guidance that it has been instrumental in producing. That makes sense as the essence of the operation (or the idea) of the rules based international or multilateral order that the US has championed for a long time (even through the disagreements about its content between 2008 and 2021). The magisterium (in the sense of having the authority to speak to a matter as well as the office from from that authority is derived) of this catholic approach--catholic in the sense of universal and generally accepted, understood with deep resonance to its etymology in the Greek καθολικός (katholicos)--is located within the apparatus of the UN operations in Geneva and fueled by a complex neural network of States, civil society, academia and their office holders). It is in this sense that a failure or refusal to embed oneself deeply within the structures of the BHR magisterium may put an actor, even significant actors like the US (and China), on the peripheries of the structures and politics producing and protecting BHR's καθολικός (katholicos). Laplante perceptively develops the consequences, especially in the context of judging the behaviors of peripheral states.
B. Yet it is also possible to accept the orthodoxy of the UNGP, without embracing the BHR καθολικός (katholicos) of its magisterium (see for example chapters 1-4 of my UNGP Commentary). From the perspective of the magisterium, of course, that is heresy (in the ancient sense of choosing for oneself)--a fatal deviation from the correct or true path (recall as well that in the case of the Chinese version of that heresy that true orthodox path is embedded in the Socialist path). In this case, that heretical stance might well reject the notion of transposition of 2nd Pillar responsibilities into 1st pillar legalities and instead apply the insights and flexibility of the State duty (especially for example around UNGP Principle 3 to build both State based legality respecting public duty and align it with robust State based guidance and nudging within markets. The UNGP appear to permit either reading. It also permit the choice. Yet the inherent logic of the rules based multilateral order may not (though note the roust critique of the notion within Chinese political discourse here). Yet the rules based international order is itself constructed on the semiotics of collective meaning making; and while the rules may be accepted by the collective, their meaning and application need not be. That, in turn, suggests that while the US position and efforts may be "incorrect" according to a majority view within the BHR magisterium, it may well be embraced as a plausible (and also correct) interpretation and application of the core rules (embraced by the entire collective) at variance with that of the majority.
C. It would follow, then, that perspective matters in assessing the value and viability of approaches to BHR systems, even among states that embrace its principles. That, of course, has been much in evidence within the peripheries of the UNGP and the essence of many of the essays in this BHR Journal Symposium. From the perspective of the "BHR legalists" (what it might be useful to call them), the deficiencies of US policy and even the choices among the way that the US chooses to express that policy, may be quite apparent. From the perspective of other peripheral approaches maybe less so (eg here, here). The question, then, reduces itself from interpretive plausibility to collective discipline. Of course the disciplinary power of law is obvious, and thus perhaps a great temptation for those who, having determined the "right" interpretation, would turn to the mechanisms of law. But even without the power of law it is possible to assert disciplinary by other means--for example capacity building (here), or indirect legality (eg the Brussels Effect), or techno-bureaucratic compliance and accountability systems (eg here).
2. That said, the excellent analysis of the US NAP within the general context of Natonal Action plans as signal and as policy, exposes points of convergence and divergence with developments in the UNGP "center." That signalling also may be assessed for its own internal logic and the alignment of its aspirational provisions with its policy objectives. Laplante explains, for example, "The newest version presents the USG’s general commitment to “creating an enabling environment for businesses to succeed while upholding the highest standard of conduct.” (p. 4) . . . does not closely follow the structure of the UNGPs although it does make a general commitment to the principles as well as the OECD Guidelines for Multinational Enterprises. Moreover, the NAP does not propose a wholly new approach that would offer a more comprehensive and ambitious vision for implementing the UNGPs, but instead mostly builds off the last NAP and existing initiatives." ("The United States 2024 National Action Plan on Responsible Business Conduct") Laplante also masterfully analyses the critical role of civil society, both with respect to the initial US NAP (2016) and in the crafting of the current version.
3. In its consideration of the internal logic of the NAP, Laplante's analysis is spot on, especially in its application of the balancing principles adopted in the US NAP to judge the NAP itself. "Read in its entirety, the NAP exemplifies the USG’s attempt to balance being both pro-business and pro-human rights. Ultimately, the balance tilts further to the former with the result of maintaining the status quo of a mostly voluntary approach to business compliance with human rights." ("The United States 2024 National Action Plan on Responsible Business Conduct") (my own analysis here 2016 NAP; 2024 NAP). It is this balancing approach that Laplante finds to be out of balance. The imbalance analysis is especially powerful when read from the perspective of the approaches being developed in Europe. "This approach creates a stark contrast to Europe which eventually chose to prioritize mandatory human rights due diligence (HRDD). In contrast, the USG only commits to providing tools and incentives to encourage businesses to uphold “the highest standard of conduct.” (p.4)" ("The United States 2024 National Action Plan on Responsible Business Conduct"). And the balancing can take odd turns: "It also promises actions to better protect human rights defenders including measures to ensure no retaliation against those who challenge problematic company activity. Yet, remarkably, it ignores the need to strengthen remedies within the U.S. to protect local workers and communities." (Ibid.).
4. A core problem for Laplante centers on the way that accountability and discipline may be weakened by systems of guidance rather than by mandatory measures. "Ultimately, the greatest concern is that the NAP falls short of truly ensuring corporate accountability by bolstering what it ironically recognizes as the UNGP’s “weakest” pillar on access to remedy. "("The United States 2024 National Action Plan on Responsible Business Conduct").That accountability focuses outward but not inward it focuses on some targeted issues bt not others. Where one seeks a comprehensive and mandatory set of measues that seamlessly align a State's external and internal regulatory positions, then, indeed, the US NAP represents a balancing out of balance.
5. Nonetheless, using this ruler to measure value is necessarily grounded on the embrace of core premises with which the US government may not yet adopt. The first is on the notion of the market as an object more than as a process. The second is on the notion of autonomy as necessarily guided by policy. The third is on the power of conformity to interpretive position, even in the face of interpretive flexibility. The fourth is on the supremacy of public policy for ordering social relations. And the last is on the nature of all social relations, including economic relations, as an expression of that public policy and policy objectives first. Nonetheless, while these premises may shape value they do not affect an analysis in which a State's application of policy is measured against the articulation of its values and objectives from which that application is derived. And in that context, as Laplante suggests, remains balanced between its positives and its negatives. And yet it is precisely here and in this way that the peripheral encounter of the BHR project by the US becomes most apparent--heretic, heterodox and for the moment resisting the disciplinary power of the BHR καθολικός (katholicos).
Links to all Essays in the BHR Blog Symposium here:
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 7: Sang Soo Lee--"BHR Regulations in South Korea: Achievements and Limitations"
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 9: Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"
The United States 2024 National Action Plan on Responsible Business Conduct
National Action Plans (NAPs) signal a government’s commitment to implementing the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs do not explicitly refer to NAPs, although Principle 8 does call on States to pursue “policy coherence” among government agencies and departments to fulfill existing obligations to respect, protect, and fulfill human rights. In turn, the United Nations Working Group on Business and Human Rights has more specifically called on governments to develop NAPs as “practical and powerful vehicle[s] for States to effectively implement the Guiding Principles” and issued guidelines in 2016 to aid in developing effective NAPs.
So far, twenty-six nations published their policy plans (the majority from European nations) and twenty-one others have begun a drafting process. The U.S. also published its first BHR NAP in 2016 during the Obama administration, but this was met with lukewarm enthusiasm from civil society and was subsequently ignored for the duration of the Trump Administration.
United States 2024 National Action Plan
Against this backdrop, it was a welcome development when U.S. Secretary of State Antony Blinken announced in June 2021 (the tenth anniversary of the Human Rights Council’s unanimous endorsement of the UNGPs) the intent of the U.S. Government (USG) to “revitalize and update” the NAP through better engagement with all stakeholders. As promised, the government held numerous consultative meetings and received 48 submissions through the Federal Register which opened in February 2022. Finally, in March 2024, the USG published the updated NAP on Responsible Business Conduct(RBC).
The newest version presents the USG’s general commitment to “creating an enabling environment for businesses to succeed while upholding the highest standard of conduct.” (p. 4) It presents four priority areas (Establishing a Federal Advisory Committee on Responsible Business Conduct; Strengthening Respect for Human Rights in Federal Procurement Policies and Processes; Strengthening Access to Remedy; and Providing Resources to Business) along with five primary commitments that overlap somewhat with the priority areas (Expanding Engagement and Coordination on Responsible Business Conduct; Procurement; Access to Remedy; Technology; Workers Rights; Environment, Climate, and Just Transitions; and Anti-Corruption). The Commitments appear as a list of 66 specific action areas that engage a wide range of U.S. agencies, including the Department of State, the U.S. Agency for International Development, the Department of Homeland Security, the Federal Acquisition Regulatory Council, the Department of Labor, the Department of Health and Human Services, and the Departments of the Treasury and Commerce, among others.
The latest incarnation of the US NAP does not closely follow the structure of the UNGPs although it does make a general commitment to the principles as well as the OECD Guidelines for Multinational Enterprises. Moreover, the NAP does not propose a wholly new approach that would offer a more comprehensive and ambitious vision for implementing the UNGPs, but instead mostly builds off the last NAP and existing initiatives. The NAP refers to a wide range of activities that are too numerous to discuss in this blog. However, the USG’s fact sheet highlights some of what the government views as signature policy and programming. In particular, the NAP creates numerous new government bodies to strengthen existing programs: a Federal Advisory Committee for coordinating multiple stakeholders; a U.S. Government Hotline Working Group to improve guidance for Federal Procurement Policies and Processes; and a new advisory body to help make the US National Contact Point (NCP) for the OECD Guidelines more effective. The government also highlights a few measures for strengthening access to redress, such as the Department of Labor’s $2 million technical assistance project to help the International Labor Organization (ILO) promote worker-driven social compliance in global value chains and its promise to advocate for effective remedies in multilateral development banks. This sampling of promised initiatives offers the tenor of the government’s approach.
Maintaining the Status Quo?: A Soft Approach to Business Compliance with Human Rights
Read in its entirety, the NAP exemplifies the USG’s attempt to balance being both pro-business and pro-human rights. Ultimately, the balance tilts further to the former with the result of maintaining the status quo of a mostly voluntary approach to business compliance with human rights. For instance, the updated NAP retains the RBC framing (see the first footnote) that shaped the 2016 NAP which profers “business can perform well while doing good and that governments should create and facilitate the conditions for this to take place.” (p. 4) The result is repeated reference to the USG expectation that companies comply with human rights norms, without any clear plans for holding companies accountable when they fail to do so. The vast array of promised activities place greater emphasis on promoting learning and generating good practices and other softer tactics of encouragement and persuasion. For example, the USG promises to create the RBC and Labor Rights InfoHub to “communicate an all-of-government point of view, approach and suite of resources to advance labor rights outcome in business operations and value chains.” (p. 13)
This approach creates a stark contrast to Europe which eventually chose to prioritize mandatory human rights due diligence (HRDD). In contrast, the USG only commits to providing tools and incentives to encourage businesses to uphold “the highest standard of conduct.” (p.4) It leaves it up to businesses to make sure they conduct HRDD throughout their value chain and to generate “credible metrics” to “meaningfully measure progress on the impact of business on people across value chains.” (p 7-8) Relying on this type of self-regulation reflects the historical neoliberal deference to the U.S. brand of capitalism which arguably created the very conditions that required the UNGPs to be drafted in the first place. While there are undoubtedly U.S. companies striving to protect human rights throughout their operations, the US NAP presents a somewhat naive view of U.S. businesses as a monolithic group of ethical actors despite well-documented corporate behavior suggesting the contrary.
Ultimately, the greatest concern is that the NAP falls short of truly ensuring corporate accountability by bolstering what it ironically recognizes as the UNGP’s “weakest” pillar on access to remedy. Certainly, the NAP does include commendable actions to strengthen International Accountability Mechanisms (IAMs) such as those provided through multilateral development banks as well as the U.S. National Action Point (NCP) already established through its commitment to the OECD guidelines. It also promises actions to better protect human rights defenders including measures to ensure no retaliation against those who challenge problematic company activity. Yet, remarkably, it ignores the need to strengthen remedies within the U.S. to protect local workers and communities.
Indeed, the USG’s balancing approach results in the U.S. externalizing its focus to human rights harms abroad, again painting U.S. companies as mere innocent actors who may fall into the trap of entanglements of bad actors ‘over there’. There is minimal vision of how to ensure US companies respect human rights within national borders. For example, there is a heavy focus on improving existing anti-trafficking and slave labor laws targeting foreigners as well as training programs programmed to take place in other nations. Similarly, even in its priority area of Federal Procurement Policies and Processes, the focus is on bolstering existing anti-trafficking laws with federal contractors and subcontractors, ignoring a broad range of other issues related to labor rights and negative impacts on communities at the national level. While protecting against slave labor and trafficking is essential, there is much more to be done to truly protect the rights of all workers, communities, and consumers from harmful business operations, goods, and services both in the U.S. and abroad.
Conclusion
On a positive note, the NAP makes a clear commitment to greater involvement of stakeholders and prioritizes the establishment of a Federal Advisory Committee on Responsible Business Conduct. While the committee has no enforcement capacity, it nevertheless offers an essential mechanism to allow civil society to continue engaging with the government to strengthen its commitment to the UNGPs and move beyond the mostly external, narrow approach in its latest edition. That is of course assuming that Biden wins a second term, which currently seems uncertain.
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