OECD Watch: Publication of Report--State of Remedy 2025; Analysing community and NGO-led National Contact Point complaints concluded in 2025

 

 

At the end of July 2026, OECD Watch  published its annual State of Remedy Report. This year it is entitled: State of Remedy 2025Analysing community and NGO-led National Contact Point complaints concluded in 2025. This is the way OECD Watch summarized its Report on its Website:

This year marks a dual milestone for responsible business conduct: the 50th anniversary of the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, and the 25th anniversary of the National Contact Point (NCP) grievance mechanism. To help mark this occasion, and to highlight the importance of the NCP mechanism, OECD Watch has released its annual report analysing the community and NGO-led NCP complaints that were concluded last year.

The State of Remedy 2025 draws on OECD Watch’s complaint database and direct engagement with civil society complaints, to examine complaint outcomes from 2025, key numbers for complaints, remedy highlights, and remedy outcomes. The report offers an evidence-based account of how the NCP mechanism functions in practice to provide a state-backed, non-judicial pathway for affected individuals and communities to seek remedy.

Although many complaints have contributed to remedy and changed business practices, NCP performance is not equal across member states. More progress is needed to ensure effective remedy for the victims of corporate misconduct. What needs to change first and foremost, as emphasised in our report, is the voluntary nature of responsible business conduct standards. Companies are not driven to act responsibly through voluntary standards alone – instead binding government regulation is required to achieve true justice.

This report takes stock of what has been achieved, while simultaneously looking ahead to what needs to be done next, to attain and maintain an even higher standard of responsible business conduct. With this and previous reports, OECD Watch affirms its position in promoting binding government regulation to remediate as well as mitigate harms caused by corporate misconduct.

 

The "Key Numbers for 2025" follows below.

Call for Contributions: Oxford Intersections: Borders | Oxford University Press Section: Territorial Sovereignty and the Modern International System

 

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I am delighted to pass along this quite interesting call for contributions. It is edited by edited by June Wang (王珺), Department of Public and International Affairs, City University of Hong Kong:

Oxford Intersections: Borders | Oxford University Press
Section: Territorial Sovereignty and the Modern International System

About the Series

Oxford Intersections is Oxford University Press’s online reference platform of thematic article collections, designed to map cutting-edge debates at the intersections of established fields. Each collection consists entirely of commissioned contributions — original, authoritative articles that orient readers within fast-moving conversations, trace the intellectual stakes of contested concepts, and open new research directions.

As Section Co-Editor for Territorial Sovereignty and the Modern International System, I am currently soliciting commissioned contributions across two thematic areas. Scholars developing original arguments on either area are warmly encouraged to be in touch.

Area I — Alternative Territorialities and Heterarchical Statehood

This area reframes sovereignty and territory as plural, contested, and assembled — not as a fixed Westphalian container. Drawing on decolonial thought, post-structuralist analytics (Foucault, Deleuze), and STS approaches to infrastructure-as-politics, contributions examine how political authority, legitimacy, and control are enacted through heterarchical actors, logistical networks, and spatial configurations that exceed the flat cartographic state. The section foregrounds voices and cases from Africa and Asia to ensure that “decentring” does not remain a purely Euro-American theoretical gesture.

Topics under commission include:

* Decolonial and anti-sovereign critique: normative and epistemic decentring of Western territorial sovereignty
* Relational statehood and heterarchical authority
* Topological territory and infrastructural space: corridors, chokepoints, special economic zones, logistical worlds, and BRI geopolitics
* Planetary politics and post-statist geographies: alternatives to state territorialism across scales

Area II — Digital Sovereignty and Digital Territory in a Multipolar World

This area argues that sovereignty is being re-assembled through digital infrastructures, data regimes, AI governance, and network control in an era of “weaponized interdependence.” The digital is treated not as a thematic add-on but as a core modality of contemporary territorialization: states and firms govern territory through cables, clouds, platforms, algorithmic standards, and jurisdictional chokepoints. Contributions are expected to situate digital sovereignty within the political economy of platform capitalism, the geopolitics of technological competition, and the longer genealogy of infrastructure as imperial and counter-hegemonic terrain.

Topics under commission include:

* Tech cold war and the multipolar world: competitive decoupling, weaponized interdependence, and the fragmentation of global digital infrastructure
* Digital sovereignty: AI governance, internet fragmentation, digital authoritarianism, and the uneven geographies of platform power
* Digital infrastructure and territory: submarine cables, cloud jurisdiction, data centre geopolitics, and the material politics of digital space
* Data colonialism and algorithmic power: extraction logics, platform capitalism, and the reconstitution of colonial hierarchies in technical architectures

Information on developing and submitting expressions of interest follow below

Upcoming Program: "Business & human rights: The international advisory opinions on climate change" 12 Feb. 2026

 

 

Happy to pass along the announcement what what s sure to be an excellent program:

ILA Canada is pleased to collaborate with the Human Rights Research and Education Centre of the University of Ottawa on a webinar series on Business & Human Rights, a multidisciplinary field of research that examines the human rights and environmental implications of business activity and considers how to prevent and redress such harm. It is also an area of social advocacy, legal practice, and consultancy.

Register here:
https://lnkd.in/e5qptN4A

This first webinar will consider the recent ground-breaking advisory opinions on climate change rendered by the International Tribunal on the Law of the Sea, (ITLOS), the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR), and their implications for business and human rights. Experts will discuss the genesis of these cases, the issues before each of the courts, and aspects of the rulings that have implications for the business and human rights normative framework.

With Professor Sara Seck, Schulich School of Law, MELAW, Dalhousie University
Salvador Herencia Carrasco, Director of the Human Rights Clinic, HRREC, University of Ottawa
Assistant Professor Chiara Macchi, Law Group, Wageningen University
Moderated by Professor Penelope Simons, Director of HRREC, University of Ottawa
Introduction by Dr. Oonagh Fitzgerald, president of ILA Canada

More information follows below

Part 14 (Part IV, Chapter 13: UNGP--The Corporate Responsibility to Respect Human Rights: Operational Principles; Policy Commitment (UNGP Principle ¶16))--Vetting the Discussion Draft: "The United Nations Guiding Principles for Business and Human Rights: A Commentary

 

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I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version.  All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.

Part I (On the Making of the UNGP), organized in five chapters, introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement of the UNGP. Parts II through V then consider in detail the text and interpretation of the substantive provisions of the UNGP. Part II considered the UNGP's General Principles; Part III examines the State duty to protect human rights (UNGP Principles 1-10); Part IV then addresses commentary to the corporate responsibility to respect human rights (UNGP Principles 11-24); and Part V considers the remedial principles (UNGP Principles 25-31). 

 

The UNGP divides the principles for each of these Pillars into "foundational" and "operational" principles.  The former reflects the conceptual framework for each of the Pillars developed through the focus on the principled part of principled pragmatism exploration of the SRSG's initial mandate and culminating in the SRSG's 2008 Reports; the latter reflects the second mandate's direction to operationalize the conceptual framework, which focused on the pragmatism part of principled pragmatism that drove the SRSG's work throughout the mandates. The operational principles are then subdivided into a number of different categories of focus. 

 

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This post considers the first of the operational principles of Pillar 2--The expectation that an enterprise produce a  policy commitment statement described in UNGP Principle 16. 

The Foundational Principles of the UNGP’s Pillar 2 corporate responsibility to respect human rights provide the conceptual framework around which the operational principles of human rights due diligence as the central structural element of Pillar 2 (UNGP Principles 16- 21 are built, modified by principles of remediation (UNCO Principle 22) and context (UNGP Principles 23-24).[1] Together these rationalize the norms, policies, and processes within and through which private markets are expected to operate—one in which the principle of economic welfare maximization, the autonomy of legal persons, and of individuals are respected, but now managed within a system grounded in a more vigorous compliance regime. Compliance with what? Compliance with the normative imperatives of human rights as they affect economic transactions. Compliance is undertaken through the expectations of Pillar 2 in markets, but also through the fulfillment by States of their duty to protect human rights under Pillar 1 through smart mixes of public power (policy and regulation; two different forms of power) directed to actors in private markets that may operate transnationally and through production chains.[2] These inter-relationships serve as the foundation for the connection, and separation, between Pillars 1 and 2—what SRSG Ruggie referenced as polycentricity of interlocking systems of public and private power.[3] Polycentricity, essentially anarchic in the sense of imposing order without a center, revolves around alignment between spheres of public and private collective governance; beyond though dependent on societal constitutionalism,[4] more anarchic that a fully formed system of entangled legalities, or transnational legal ordering,[5] or as much as it is grounded in polycentric mimesis[6] by way of the ordering premise of business and human rights.[7]

Pillar 2, Like Pillar 1, then, each acquires both its power and its autonomy through their adherence to this structuring principal of polycentric mimesis. That is evidence not merely in the organization of the principles in each Pillar—each divided between foundational and operational principles—but also in their internal structuring. The foundational principles themselves each starts with the declaration of the ordering premise of each Pillar. That is followed by a set of elaborating principles that together constitute the normative structures within which it is possible to appropriately manage the scope of possible variations in operationalization of duty (State) and (enterprise and other collectives). Lastly, that parallel mimetic structuring is embedded within pathways to structural coupling—for example, human rights due diligence might be transposed from the Pillar 2 to Pillar 1 and reconstituted as a set of mandatory legal measures bounded by law, yet at the same time, the expectations built into the autonomous obligations of human rights due diligence, the normative basis of which is autonomous of national public legality, continues unabated.[8]

Likewise there is a connection between UNGP Principle 3 (General State Regulatory and Policy Functions)[9] and UNGP Principle 16 (Policy Commitment), the object of the Commentary in this chapter. Both serve as bridging provisions. Each is focused on structuring the forms and trajectories of the operational expression of their respective foundational principles. UNGP Principle 3 creates the framework through which States may exercise their political authority (in and through law and policy) to fulfill their foundational duty (specified in UNGP Principles 1-2) “to foster business respect for human rights.”[10] UNGP Principle 16 provides the institutional and textual form within which an enterprise can “meet their responsibility to respect human rights”[11] elaborated in Pillar 2’s foundational principles (UNGP Principles 11-15). While the foundational principles describe an expectation to develop policies to fulfill the foundational premises of Pillar 2 in UNGP Principle 15, UNGP Principle 16 actually develops the way that expectation (policy commitment) is expressed.

[1] Discussed Chapter 12.
[2] Discussed Chapters 6-9.
[3] Concept discussed at Chapter 3.2; see also Enrico Partiti, ‘Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights,’ (2021) 70(1) International and Comparative Law Quarterly 133-164; Larry Catá Backer, ‘The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity,’ (2012) 17(2) Tilburg Law Review 177-199.
[4] See Gunther Teubner, ‘Societal Constitutionalism: Nine Variations on a Theme by David Sciulli,’ in Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism (CUP. 2017) 313-340.
[5] See Nico Krisch, ‘Entangled Legalities in Postnational Space,’ (2022) 20(1) International Journal of Constitutional Law 476-506.
[6] The focus here is on imitation or representation sourced in distinct, multiple network of autonomous but decentralized entities. Cf., Larry Catá Backer, ‘ The Soulful Machine, the Virtual Person, and the “Human” Condition: An Encounter with Jan M. Broekman, Knowledge in Change: The Semiotics of Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023),’ (2024) 37 International Journal for the Semiotics of Law 969-1083.
[7] Larry Catá Backer, ‘Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,’ (2013) 20(2) Indiana Journal of Global Legal Studies 805-879.
[8] Compare the Commentary of Chapters 6-7, with Chapter 12.
[9] Discussed Chapter 8.
[10] UNGP Principle 3 Commentary.
[11] UNGP Principle 15; discussed Chapter 12.

 

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The Chapter 13 discussion draft may be accessed directly HERE (where revisions earlier chapters may also be accessed). The text of the draft of Chapter 13 as of the time of this posting also follows below along with its table of contents. 

 

Announcing Publication of "A Research Agenda for Global Power Shifts and International Economic Law" (Joel Slawotsky, ed)

 

 I am delighted to announce the availability of a marvelous collection of forward looking essays just published by Edward Elgar as part of its Elgar Research Agendas, and edited by the remarkable Joel Slawotsky (Reichman University, Herzliya, Israel):  A Research Agenda for Global Power Shifts and International Economic Law. The Press Release described the work this way:

This innovative Research Agenda examines the transformational changes affecting the global economic architecture, international law, and investment and trade paradigms. Renowned authors discuss and raise insightful questions with respect to a host of topics including: international tribunals, human rights policies, cross-border data flows, trends in the digital economy, WTO reform, sanctions, subsidies, judicialization of global economic governance, the Digital Economy Partnership Agreement, and the re-conceptualization of national security.

 

Contributors include Julien Chaisse, Ru Ding, Yupeng Cheng, Ming Du, Locknie Hsu, Paul B. Stephan, Wei Shen, Leon Trakman, Robert Walters, Juhi Dion Sud, Edwin Vermulst, Sienho Yee, Joel Slawotsky and myself.

The table of contents follow. 

ICoCA Newsletter November-December 2024: "Shaping the evolving landscape of human rights and private security"

 

It is becoming clearer, though it is hard to believe that further clarity was necessary, that non-state actors  have come increasingly to rely on private armies (by whatever nane one may find it prudent or fashionable to call them). Everyone, from officials in the United States who feel the need for additional security (whatever policing policies at whatever finding and training levels they have put in place), to civil society organizations operating in places where the civil authority may not extend what they view as a n adequate level of security, to business enterprises (along supply chains for example) and religious organizations (for example religious groups targeted for political action by others)  seeking to protect their on the ground assets and personnel in places where state security (at least as provided them) may not be sufficient.    

In that context the architecture of law and norms at the international level--and the corresponding need for self-policing among those who either produce or consume security services--becomes more acute. To those ends the ICoCA has for years served as a space where such activities might be undertaken, aligning security realities with sensitivity to legal compliance and international law and norms. Their November-December 2024 Newsletter provides a good summary of the state of that enterprise at the dawn of the 2nd Trump Administration and for that reason alone is worth considering.

It follows below (with links to the relevant documents). A French version of this newsletter is available here.

Some Form of the National Security State Comes to Europe?: "Does the Commission Cross the Rubicon? Legalising ‘Pushbacks’ on the Basis of Article 72 TFEU"

 

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Perhaps it was inevitable, though twenty years ago  it might have seemed incredible.   States have always reserved to themselves the right to take measures to protect their national security.  By the 1990s, that national security exception, in many places, including the E.U. appeared to be shrinking to the point where it might have been thought to become vestigial.  Courts in OECD states and in political collectives like the EU, continued a process of revaluing the value of national security. That was possible given the normative tenor of the times--one that saw as almost inevitable the closer integration of a global community under the aegis of shared economic and human rights values. This global convergence suggested  national security as both an anomaly and as an instrument of reactionary forces. Certainly it might still be possible to successfully interpose national security as an exception, but national security  would not be valued as highly as other competing policies--integration, convergence, international law and comity, and the universalizing presumptions of human rights and economic regimes. That certainly appeared to be the case of the evolving jurisprudence of national security within the EU and in the European Court of Human Rights.

All of the started to change in noticeable ways  after the financial crisis of the first decade of the 21st century.  At first it was barely noticed in the core of "convergence land."  But it became more and more important  among Marxist-Leninist States, post-colonial and developing states, and eventually the United States, though in each case for sometimes vastly different reasons and to support vastly different projects. National security could come to mean the protection of social stability, it could be aligned with the needs of development, it could be asserted to protect cultural and social norms against homogenization (even if that homogenization was code for international normative projects sourced in the New York and Geneva international establishments). And it could mean the preservation of national capacity to defend itself against attack.  From after the start of the Russo-Ukrainian War in 2014, and with it the evolution of warfare as practiced (rather than as theory), the understanding of all of these concepts changed and expanded to suit the realities emerging as a function of technology and the instrumentalization of virtually every aspect of social relations as a means of offensively projecting power into a foreign state. 

Every region experienced this change differently.  For the U.S. it focused on tech and multi-use of products that could be used against U.S. interests; for China it centered on the protection of information and the integrity of its political-economic order against external threat; for much of the post-colonial world it centered on a variety of threats, internal and external. In each of these cases a more robust assertion of national security to justify counter measures and national security infused policy could run up against the older jurisprudence and expectation of the use and limits of national security.

In Europe, the tender underbelly of national security might be migration (which presents itself differently than in the US).  The emerging issues were quite effectively considered in a a short but quite interesting essay, Daniel Thym, 'Does the Commission Cross the Rubicon? Legalising ‘Pushbacks’ on the Basis of Article 72 TFEU,' published 10 January 2025 in EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE (with thanks to my friend and colleague Francisco Javier Zamora Cabot,  Emeritus Professor of Private International Law, Universitat Jaume I for the reference). The article is reproduced below and is well worth a read, especially for its excellent job of sketching out the European context of what appears more clearly as a global trend. What makes the European context especially interesting is the way that these changes affect a substantially large ecology of regulation, constitutional and quasi-constitutional rules and norms, and the remedial mechanisms (including the standards) used to define and protect rights that may be adversely affected by assertions of national security to justify deviations from general rules or expectations. Thym concludes, quite correctly, 

Even if the ECtHR’s Grand Chamber found pushbacks to be legal, Member States would not be free. Governments would have to convince the Court of Justice that the strict requirements of Article 72 TFEU are being complied with and that the interference with the right to asylum fulfils the requirements set out in Article 52(1) of the Charter. Exceptions must be ‘provided for by law’, rather than being simple administrative practices. This double assessment leaves judges multiple options to limit state discretion. Exceptions must be ‘provided for by law’, rather than being simple administrative practices, to comply with Article 52(1) of the Charter. The CJEU might also conclude, like in the judgment on Lithuania, that border procedures are enough to respond to security concerns or that the derogations in the future Crisis and Force Majeure Regulation are sufficient.

The final analysis might boil down to a proportionality test and the necessity of drastic state measures, both under Article 72 TFEU and Article 52(1) of the Charter. Judges may instruct Member States to exempt specific categories of persons, such as minors or vulnerable groups, mirroring existing exceptions in Finnish, Lithuanian, and Polish legislation. They might also require a basic triaging identifying people with evident protection needs who are not being pushed back. They would also have to ascertain the bearing of the nebulous category of the ‘essence’ of fundamental rights (see also here, point 137 without giving any reasons). The concept of ‘essence’ was borrowed from German constitutional law where, tellingly, it does not have much practical bearing besides the proportionality test.

The real issue may be that, even if the standards remain unaffected, the way they are interpreted and applied, and the way in which values are considered and balanced may change significantly. That remains to be seen, but certainly whatever happens, the old expectations and applications may now be ripe for re-interpretation.

Call for Papers "Towards a Global Ecological-Economic Legal Framework," ESIL IGs on European and International Rule of Law, International Environmental Law, and International Economic Law

 

 

My friend and colleague Paolo Farah (Professor and Coordinator, Eberly College Interdisciplinary Research Collaborative on Global Challenges and Local Response Initiatives, Director of the Energy Justice and Just Transition Lab, West Virginia University, Eberly College of Arts and Sciences, John D. Rockefeller IV School of Policy and Politics) has asked me to circulate the call for papers of what will be an excellent event:  "Towards a Global Ecological-Economic Legal Framework," organized in collaboration among threeESIL  interest groups: European and International Rule of Law, International Environmental Law, and the International Economic Law. The event will take place at École Normale Supérieure – Paris Sciences et Lettres (ENS-PSL) on 6-7 June 2025.

The Call for Papers may be accessed HERE and below.

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 1--"Setting the Stage"

 

I am delighted to pass along to interested readers an 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, it 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.

To take stock of these developments, we have organized a blog symposium around BHR developments outside of the EU. We are very grateful to have received 12 excellent and thought-provoking contributions by a diverse group of authors, which offer insightful and timely analyses of BHR regulatory developments (primarily) outside Europe and hopefully spur critical reflection among the BHRJ Blog readership on the dominant narratives of transnational business regulation. The contributions will be published on a daily basis. * * * This symposium seeks to do more than take stop of developments in BHR regulation. It also marks the launch of the new BHRJ Blog. Over the past months, we as blog editors (Caroline Lichuma and Lucas Roorda) have worked on a new website designed to facilitate more variety in the types of contributions the blog can support, catalyze more discussion in the BHR field and feature an even greater diversity of voices.

 The cumulative product of these engagements is neither to suggest the imperatives of revolutionary transformation, nor to paint a picture of a global discourse on human rights that suggest accumulating differences producing incomprehensible divides between pathways of development of human collectives around notions of the imaginaries of organizing societies around the "rights" of "humans." Indeed, the opposite seems to be true--that the global communities are all now deeply considering and thinking through engagement with human rights; in a sort of extraordinary turn from a century ago, it is human rights discussion that tends to drive much of the global conversation.

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The point, though, and an important one that Omari Lichuma and Roorda seek to make, is that these conversations ought not to be understood either as peripheral or evidence of false consciousness at least form the perspective of the imaginaries of the "hub." Rather, they form an integral part of global conversations on the theory, interpretation, and application of the many streams of human rights pathways that are now not merely evolving but which play an increasingly important role in the organization and domestic legal orders. These, then, are views, that ought to have a space at the table in Geneva, as global theory, norms, standards, and practices are discussed as a global framework for localized application. To ignore them, or to seek, without more to dismiss and supplant them, may prove to be a disservice for those committed to the human rights enterprise as a framework for common international structures of conduct norms; or for the development of multiple pathways toward common objectives that one might have thought was bound up in the very European motto/aspiration of "unity in diversity."

The initial essay authored by Omari Luchuma and Roorda, "Setting" that Stage" follows below (and may be accessed HERE in the original). It includes a summary of the twelve (12) contributions that will follow. Contributors include Bonny Ling; Keren Adams; Jernej Letnar Černič; Barnali Choudhury; Larry Catá Backer; Jonathan Kabre; Cristine Lucena and Nathalie Laureano; Lisa LaPlante; Erika George and Enrique Martinez; Pradeep Narayanan, Dheeraj and Jhumki Dutta; and Kazuko Ito.

 

The BHR Blog Symposium essays links follows.

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 1--"Setting the Stage"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 2: Bonny Ling--"Taiwan: Business and Human Rights on the Margins of the UN System"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 3: Keren Adams--"A Race to the Top? Progress and pitfalls of Australia’s Modern Slavery Act"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 4: Jernej Letnar Černič--"Business and Human Rights in the Western Balkans"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 5: Barnali Choudhury--"BHR Developments in Canada: Targeting Low Hanging Fruit"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 6: Larry Catá Backer--"The Chinese Path for Business and Human Rights"[白 轲 "工商企业与人权的中国道路"]

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 8: Rimdolmsom Jonathan Kabré--"Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)"

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"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 12: Pradeep Narayanan, Dheeraj, and Jhumki Dutta, "Business Responsibility Reporting in India – Can it go Beyond the Global North Gaze?"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 13: Kazuko Ito,"Challenges for Japan’s Regulatory Approaches for Business and Human Right

Establishing Effective Helpdesks on Business and Human Rights: Initial Consideration of the Challenges and Opportunities Suggested in OHCHR Human Rights Helpdesk Proposal

 

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The Office of the High Commissioner of Human Rights, along with the UN Working Group for Business and Human Rights along with the Geneva Human Rights Platform, and Friedrich-Ebert-Stiftung Geneva office--a virtual top level People's Political Consultative Conference of leading business and Human Rights organs--now seeks to exercise consultation on the form and function, as well as the targets, for a mass push toward the construction and operation of systems of help desks to facilitate the embedding of the appropriate expectations and drivers for business and human rights. An invitation has been extended to those ends (discussed here; concept note for the event here; on the German template here). That hour long consultation (structured as a leading groups panel format) will take place in Geneva at the end of June, 2024. 

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The topic, and the effort, is important.  It has been a long time coming, if only because it has taken a long time for controlling elites to take it up (others have been discussing this, in one form or another, since before the endorsement of the UNGP). But that is how things work within the structures of arborescence (Deleuze and Guattari, "A Thousand Plateaus" (U Minn Press, 1987; Mille Plateaux (Minuit, 1980); vertically hierarchical networked interfaces) that are the (necessary or at least inevitable) hierarchical structures of the UN enterprise in Geneva and its associated networks. It is also the essential organizational parameter of its principal stakeholders--States, business enterprises, and the geat civil society organs--around and through which this business and human rights project s operated.  This arborescence now seeks to create a human neural network in the form of what is benignly though quite brilliantly strategically named a "help desk" (on "intelligent naming" ming-ming  (明名) see eg here (text & n 18) and here). This "help desk"is not just a router, it is an administrative organ the purpose of which is to serve as the "decision-intermediate layer" of a neural pathway that can turn inputs into a uniform and well curated set of outputs aligned with the programming of that layer. It is a stamping machine for uniform and quality controlled product that can standardize the production of business and human rights objects (opinions) that  can then produce uniformity around a specific interpretive approach to the premises and principles it seeks to advance-protect. 

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The help desk, in this sense, is meant as a neural network the operations of which are embedded in a structural arboresence grown around the OHCHR. The model conforms to emerging authoritative principles of structuring aligned public-private governance networks around compliance systems overseen by a technologically proficient bureaucracy (see especially here). That requires, in turn, not merely principles and baselines (in this case the UNGP), but also an interpretive stance that produces a set of clear objectives toward which the UNGP urtext can be deployed (on variation in the possibilities of interpretation and application, consider Chapters 1-5 of my draft Commentary on the UNGP). This is nicely developed in the key background documents that serve as the framing of the consultation session. The objectives are convergence; leadership and guidance--but not mandatory measures--are to be undertaken by the OHCHR; and narratives along with practice expectations are to be built around a constantly iterative strategic interpretation embedded an institutional organ that is both a source of opinion about "best" or "preferred" reading and application, and a router/projector of interpretation among a large group of related actors.  This certainly falls nicely within a fair reading of the intent of the UNGPs and aligns with  the fundamental working style of the OHCHR. The devil, of course, is in the detail.

This post considers one of the background documents around which the consultation has been framed, starting with the OHCHR Business and Human Rights Section, "Helpdesk on Business and Human Rights: Concept Note." The object is to get a sense of the nature of the project and its parameters so that useful inputs might be offered. Stefania di Stefano's excellent, "Research Brief: Parameters for a Global Helpdesk on Business and Human Rights

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" (Geneva Academy and Friedrich Ebert Stiftung, November 2023) provides additional perspectives.

Overall, this is a quite worthy project, and one that aspects of which I have considered a while ago before the idea acquired its current forms (see, e.g., here, and here). The analysis that follows is part of my input on the idea and operationalization of a "help desk" feature. The hope is that careful engagement might provide some benefit for decision makers to enhance the proposed interpretive facility's respect of the spirit of the UNGPs themselves in a way that remains positive and useful for everyone but sensitive to context, time, place, and space.

The analysis that appears below, as well as its initial suggestions about the Helpdesk concept, may also be accessed HERE. 

 

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Part 7 (Part II, Chapter 6 UNGP: General Principles )--Vetting the Discussion Draft: "The United Nations Guiding Principles for Business and Human Rights: A Commentary

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Lead me in thy truth, and teach me: for thou art the God of my salvation; on thee do I wait all the day. Psalm 25:5

I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version.  All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.

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With this post we move from Part I (On the Making of the UNGP), the five chapters of which introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement if the UNGP. 

 

Part II  (chapters 6-9) takes a deep dive into the substantive provisions of the UNGP--its General Principles and its thirty one (31) substantive principles divided into a State duty, a corporate responsibility, and a joint remedial obligation.  

 

Chapter 6 considers the General Principles of the UNGP. The object of the General Principles to to describe the principles and parameters  to be used in reading, interpreting, and applying the UNGP's thirty one principles that follow.  That is, the General Principles serve as a interpretive guide, or better put, the guardrails against which the substantive Principles that follow. are to be understood.  These guardrails define the conceptual space within which it is possible to read the UNGP with a great deal of flexibility. And thus the somewhat ironic use of the Biblical Psalm that appears at the start of this description of Chapter 6. The truth to which the General Principles lead is flexible, contextual, permissive, and not locked into any space, place, time, or conceptual ideology, beyond, perhaps, the ideology of the guardrails themselves. Within the guardrails, ever path leads to truth, and every truth to the path. 

 

It consists of three core general principles which are recognized as the principles on which the UNGP are grounded. These are supplemented by an additional four principles. The first touches on issues of applicability. These limit the application of the UNGP to States and business enterprises.  Not covered are civil society organizations, religious institutions, and international organizations among others.The second on the appropriate approach to understanding the UNGP. That approach applies a "coherent whole" standard applied as a function of the two principle objectives of the UNGP: (1) enhancing standards and practices  respecting business and human rights to achieve tangible results for affected individuals and communities and (2) that then contribute to socially sustainable globalization. The third  adopts two related principles. The first is the twin interpretive principles of "no new international law obligations" standard; the second is the "no limiting and undermining State international legal obligations" standard of reading and applying the principles, their text, in whole or in part. The last imports a principle of non/discrimination. That principle is subject to application as a function of special needs and challenges of risk to vulnerable and marginalized communities. 

The Chapter starts by considering the significance of a set of general principles to a framework of Guiding Principles (Chapter 6.1//Signification: The Role of the General Principles in the UNGP). It then considers the text of the General Principles in detail. It looks then to authoritative interpretation or commentary to aid in understanding, looking principally to the travaux préparatoire. It then (re)considers the way that the General Principles  and its guardrail function contributes to the idea or spirit of the UNGP.  I end by considering the way that the General Principles define the UNGP and contribute to a deeper understanding of its spirit or significance, which is then contextualized and appropriated by others seeking to invest their business and human rights efforts with the UNGP spirit. 

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They may be reduced to the following major points:
(1) the framing of State duty around its legal obligations under international law (and likely as well its constitutional order);
(2) the characterization of enterprises as functionally differentiated organs, but necessarily embedded within any one or more States whose responsibility is centered on compliance first, and a more general (and coherent) respect for human rights second, understood as deriving from the “do no harm” principle;
(3) the fundamental requirement that human rights and obligations be matched (it does matter how just that it be effective) to remedy (judged as a function of appropriateness and effectiveness;
(4) the universal application of the UNGP framework to all States and enterprises leaving open the question of differential application;
(5) the imposition of an interpretive principle that starts from a principle of textual “coherent wholeness” which must be read, collectively and in all of its disaggregation against the objective of (a) standards and practices based goals assessable by reference to achievable and tangible results for affected individuals and collectives and (b)contribution to socially sustainable globalization (the precise definition of which is left open);
(6) the caution that neither new international law obligations ought to be extracted from the UNGP whether of a kind that requires assent or to which a State may otherwise be subject; nor may States use the UNGP as a means of avoiding or undermining their international legal obligations; none of these terns are defined with any level of specificity; and
(7) the UNGP must be read within and applied under a principle of nondiscrimination, though the measure of discrimination is left undefined, and the possibility of contextually based variation is accepted; that variation is treat is to be risk based but the risk based analysis may itself be triggered by exogenous factors tied to individual or collective vulnerability or marginalization.
There it is. That, in a nutshell is the idea and spirit, the signification, of the UNGP. The rest is operationalization and the fleshing out of the guardrails set out in these General Principles. (From Chapter 6).

The Chapter 6 discussion draft may be accessed directly HERE. The text of the draft of chapter 6 as of the time of this posting also follows below along with its table of contents.

 

6. The UNGP General Principles (Chapeau)

                  6.1 Text of the General Principles

                                    6.1.1 Signification: The Role of General Principles in the UNGP

                                    6.1.2. General Principles Textual Commentary

                                                      6.1.2.1 The “Grounded in Recognition” Clause

                                                      6.1.2.2 The Three Core General Principles

                                                      6.1.2.3 The Interpretation of the Core General Principles: Application

                                                      6.1.2.4 The Interpretation of the Core General Principles

6.1.2.4 The Interpretation of the Core General Principles: Interpretive Coherence and Fundamental Objectives

6.1.2.5 The Interpretation of the Core General Principles: The No New Obligations Caution

6.1.2.6 The Interpretation of the Core General Principles: Heightened Attention

                  6.2 Authoritative Interpretation/Commentary

                                    6.2.1 The Travaux Préparatoire and the 2010 Draft UNGP

                                    6.2.2 The Pre-Mandate Texts and the Signification of the UNGP  Through its General Principles

                  6.3 Conclusion

Brief Reflections on the 2024 U.S Government National Action Plan on Responsible Business Conduct

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.