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

Agains 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.