Last week, the U.S. State Department announced that the government would develop a National Action Plan to “promote and incentivize responsible business conduct,” in line with the United Nations Guiding Principles on Business and Human Rights (UNGPs). Once complete, the U.S. will join the U.K., the Netherlands, Denmark, Italy and Spain as the only states to have released National Action Plans on business and human rights (BHR NAPs). According to the U.N. Working Group on Business and Human Rights, Switzerland and Finland are also in the process of developing their own plans.
The announcement comes in advance of official United Nations guidance on the subject, promised by the U.N. Working Group for December 2014, which ought to inform the U.S. process. While this news may barely register on the radar of even those most interested in corporate social responsibility, organizations like Human Rights Watch, Human Rights First and the International Corporate Accountability Roundtable (ICAR) have been publicly pushing President Barack Obama to develop a BHR NAP for some time. (ICAR is also working with the Danish Institute for Human Rights on a larger NAP project that aims to provide guidance for governments in the development, implementation, and review of BHR NAPs.)
What is a BHR NAP and why does it matter?
In short, a BHR NAP is a policy document that explains how a particular state intends to go about fulfilling its duty to protect human rights from corporate abuse. In general, NAPs are useful tools in the advancement of any particular policy objective in that, among other things, they tend to mobilize various stakeholders, promote collaboration and outline the parameters of expected action. Three years after the United Nations Human Rights Council unanimously endorsed the UNGPs, it called on all Member States to develop BHR NAPs in order to promote the implementation of the UNGPs within each state’s national legal framework.
In a sense, the creation of a NAP is akin to the crucial step of domestic implementation of a treaty or other international instrument (and the future of the rights or obligations it purports to protect/enforce), including international human rights treaties, like the International Covenant on Civil and Political Rights (ICCPR), or those creating international institutions, like the Rome Statute and the International Criminal Court (ICC).
By ratifying the ICCPR, for instance, the U.S. committed to “prevent and protect against discrimination and ensure equal treatment for all … without any limitations or exceptions.” Yet, domestic implementation of the ICCPR has been lacking. Who, for instance, can argue that the federal government has come close to accomplishing this (admittedly lofty) aim? With respect to the ICC, the process of domesticating the Rome Statute was arguably more important than the creation of the Court itself to ending impunity for the most serious violations of human rights, due to the central role the theory of complementarity plays in the ICC framework. However, while Rome Statute domestication has made significant strides, the future of international criminal accountability is far from certain, in large part because of the failure of the rule of law in states most prone to conflict and rights abuse.
Thus, even though the UNGPs are not a binding instrument, state-based guidance regarding how states intend to protect human rights in the business context is crucial to the future of corporate accountability.
What can the U.S. learn from existing BHR NAPs?
Though only a handful of states have officially created BHR NAPs, some of the early plans include ambitious and encouraging proposals for what a state can do to satisfy its duties as articulated in the UNGPs.
The first state to adopt a BHR NAP was the U.K., which announced its plan in September 2013. The U.K. has been at the forefront of the BHR movement, and the architect of the UNGPs, John Ruggie, himself praised the U.K.’s plan as an “important step” toward “socially sustainable globalization.”
Most importantly, the U.K. NAP:
- Reaffirms that the amended Companies Act 2006 requires businesses to include human rights issues in their annual reports (a lead the European Union followed in April, when it took an important step toward greatly expanding its non-financial reporting requirements);
- Promises a review of the government’s procurement practices and their impact on human rights; and
- Promises to ensure investment treaties involving U.K.- or EU-based companies incorporate the business responsibility to respect human rights and do not undermine the host country’s ability to meet and hold other parties to international human rights obligations.
Denmark’s NAP, released in March 2014, was the culmination of years of work, which began in 2011 when the Danish Council for Corporate Social Responsibility (yes this is a real body appointed by the government, and it was created way back in 2009) began working on recommendations for how to implement the UNGPs. Some of the more interesting forward-looking elements of the Danish NAP include:
- A plan to put together a government working group to explore the possibility of enacting extraterritorial BHR legislation; and
- Continuing to ensure fair and reasonable pay and working conditions in accordance with the international law, by “increasing the use and better enforcement of labour clauses in public contracts.”
Notably, Denmark has had mandatory CSR reporting for large and listed Danish companies since 2008, making it a true leader in this area.
What we should hope for in an American BHR NAP
More than any other organizations, ICAR and the Danish Institute for Human Rights (DIHR) have taken the lead in the analysis of and advocacy around the BHR NAP process and they have published a list of criteria that contribute to a strong BHR NAP. Importantly, success in this regard is as much about the process as it is about the work product the follows, and a dynamic and inclusive research, planning, and drafting process will lead to a more impactful plan.
Here is a summary of the top 10 from ICAR and DIHR. Hopefully these are the types of things the U.S. will aim to include in its own BHR NAP process:
- Clear identification and communication of leadership and ownership of the NAP development and implementation process within the government;
- Publication of a timeline for the NAP process;
- Allocation of adequate resources to the NAP process;
- Effective participation by all relevant stakeholders, especially including dis-empowered or at- risk stakeholders;
- An initial assessment of the government’s current implementation of the UNGPs;
- A plan that addresses the full scope of the UNGPs;
- A plan that articulates commitments within the NAP that are specific, measurable, achievable, relevant, and time-specific;
- An NAP process that is fully transparent, includes publication of drafts of the NAP, and provides public reports of stakeholder engagement;
- Identification of each party responsible for the implementation of discrete action points within the NAP and overall follow-up; and
- Creation of a framework for the monitoring of and reporting on implementation of the NAP once published.
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