To mark the 10th anniversary of the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) on June 16, 2021, Secretary of State Tony Blinken announced that the United States would update its National Action Plan (NAP) on Responsible Business Conduct.
NAPs are a tool, encouraged by the UN Human Rights Council, that support the implementation of the UN Guiding Principles and demonstrate a state’s commitment to protecting human rights as they relate to business activities; more than two dozen countries have produced a NAP in the decade since the UN Guiding Principles were adopted. The original U.S. NAP was published in December 2016.
Q1: What happened with the last U.S. NAP, and why is the United States updating it?
A2: The Obama administration announced its intent to develop a NAP in September 2014. The National Security Council (NSC) led an interagency process to agree on its text and commitments that involved at least 16 U.S. departments and agencies, from the Departments of State, Commerce, and Treasury, to the U.S. Agency for International Development, the office of the U.S. Trade Representative, and the Environmental Protection Agency. The final NAP was released in December 2016, just weeks before the end of the administration.
Under the Trump administration, some components of the NAP, such as the commitment by Customs and Border Protection to enforce the prohibition on entry of goods made with forced labor, continued to be implemented. Momentum around the monitoring and implementation of the NAP as a whole, however, was not a policy priority for the NSC.
Launching a new NAP process at the beginning of an administration provides an opportunity for the administration to lay out a comprehensive vision for how it expects to engage with companies and regulate business impacts on human rights—from ending forced labor in supply chains to preventing the use of technology to surveil and attack human rights activists. At its best, a NAP can be a vehicle for new government commitments to leverage its influence to prevent and remedy abuses and a signal to business that it takes these issues seriously. In Germany, for example, the government committed through its NAP process to consider adopting legislation mandating that large German companies undertake human rights due diligence if an assessment found that fewer than 50 percent of such companies were doing so. When two successive surveys found that fewer than a quarter of companies were carrying out adequate due diligence, the German government moved forward with mandatory legislation that was adopted by its parliament on June 11, 2021.
Many countries’ NAPs have been criticized for setting a low bar—calling only for voluntary efforts by business and promising no new concrete action by government. The first U.S. NAP received mixed reviews in this regard. Commitments to leverage U.S. government procurement power by prohibiting agencies from contracting with companies that do not exercise human rights due diligence and the tightening of rules to prevent goods made with forced labor from entering the United States were welcomed by activists and business. But many organizations felt the majority of the NAP simply referenced existing U.S. government activities rather than break new ground or present a vision for the future; they also criticized the NAP development process for not being sufficiently transparent. The Biden administration has a chance to address these shortcomings in a new process.
Q2: What can we expect from this NAP process?
A2: This week’s announcement left open at least four big questions about the updated NAP:
What is the starting point? The first NAP process was criticized for not starting with a comprehensive national baseline assessment of existing governance gaps related to business and human rights in the United States. Given the scale of impact of U.S. business around the world, it is not surprising that the government was reluctant to attempt a comprehensive review—one that could itself take years. Nevertheless, the uneven implementation of the current NAP over the last five years raises the question of if, and how, the government will take stock of its current commitments before adopting new ones.
What will the scope be? The first U.S. NAP explicitly focused on the conduct of U.S. businesses overseas; the human rights impacts of companies operating in the United States were considered outside the scope of the exercise. The fact that this is described as an “update” rather than a “second” NAP, and that the Department of State will lead the process rather than the NSC, suggests the same will be true now. Nevertheless, given President Biden’s “foreign policy for the middle class” and his prominent efforts to promote domestic labor rights and end the use of private prisons, among other domestic human rights-related initiatives, there may be more pressure on the administration to broaden the scope. This opens the door to participation by far more U.S. government departments and agencies and would certainly require strong engagement by the NSC and the Domestic Policy Council to wrangle potentially reluctant participants. A domestically focused NAP, however, would be a powerful example for other governments considering human rights-related regulations for business and demonstrate the U.S. government’s seriousness on this issue.
How will external stakeholders be involved? During the first NAP process, the administration did some outreach to civil society organizations, primarily in the United States. It held four in-person roundtables in California, New York, Oklahoma, and Washington, D.C., and created an email address for outside groups to submit their recommendations. Outreach to stakeholders overseas, however, was limited—particularly to individuals and communities directly affected by the practices of U.S. companies. There was also no opportunity for outside stakeholders to comment on a draft of the NAP—no doubt due to time constraints—rather, the administration published its finalized NAP without soliciting outside comments or providing feedback on the recommendations it had received. Launching this process at the beginning of the administration rather than close to the end, and the widespread use of videoconferencing, should facilitate a much broader consultation process this time around.
Will it include or call for mandatory business action? Many NAPs, including the U.S. NAP, have been criticized for focusing on encouraging voluntary steps by companies, even while many governments have moved toward mandating company action on human rights. In 2017, France passed the Duty of Vigilance law requiring large companies to assess their human rights risks and prevent abuses in their operations and supply chains; a failure to do so opens the company to civil liability. As noted above, Germany is in the process of adopting broadly similar legislation, while the European Commission has pledged to adopt mandatory due diligence rules across the European Union in 2021. There will no doubt be pressure on the administration to commit to binding rules on companies as part of their broad approach to managing business impacts on human rights in the NAP process.
Q3: What else is the U.S. government doing on this issue?
A3: While the NAP announcement was the biggest headline from the Department of State’s UN Guiding Principles anniversary statement, it included other important references. Most notably, the statement called on technology companies in particular to “establish guardrails” against misuse of their products, building on the department’s 2020 guidance on the export of surveillance technology—a topic that will continue to be a focus of both the administration and civil society. It also emphasized the role that private investors and multilateral development banks play in influencing company behavior—two groups that have faced relatively little scrutiny up to now but are expected to play an increasingly important role in defining the boundaries of responsible business conduct. Looking forward, in the run-up to the administration’s Summit for Democracy, where the impact of business activities on civic freedoms and human rights generally will be scrutinized, these and other issues make sense to be at the forefront of the administration’s human rights efforts.
Marti Flacks is a senior fellow and director of the Human Rights Initiative at the Center for Strategic and International Studies in Washington, D.C.
