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National Action Plans on Business and Human Rights: Progress or Mirage?

Published online by Cambridge University Press:  01 February 2019

Humberto CANTÚ RIVERA Open the ORCID record for Humberto CANTÚ RIVERA [Opens in a new window]
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Abstract

As of October 2018, 21 states have adopted National Action Plans on Business and Human Rights (NAPs), with several more in different phases of development. This is an important political step to raise awareness of the importance of intragovernmental policy coherence and of the need to move forward to prevent human rights abuses linked to business activity. However, despite the global intergovernmental support to such policy strategies, the actual effectiveness of NAPs needs to be called into question: do they represent progress, or are they a mirage to block possible avenues of development? Currently existing NAPs have done little (yet) to ensure more effective protection in key policy areas, including trade and investment, state-owned enterprises, and particularly in relation to legislative developments and access to remedy. This contribution seeks to analyse the merits of developing NAPs, the importance of ensuring they become only the very first step towards a more effective protection of human rights, and to question whether their importance needs to be adjusted to what they really are: policy tools with limited effects and with a politically linked time frame.

Keywords

business and human rightsimplementationNational Action Planspublic policyUnited Nations Guiding Principles
Type
Scholarly Articles
Information
Business and Human Rights Journal , Volume 4 , Issue 2 , July 2019 , pp. 213 - 237
Copyright
© Cambridge University Press 2019 

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Footnotes

*

Professor at the School of Law of the University of Monterrey (UDEM), and Executive Director of its Human Rights and Business Institute. Expert Adviser to the Delegation of Mexico before the Open-Ended Intergovernmental Working Group on human rights and transnational corporations and other business enterprises (hereafter ’Working Group’), and to Mexico’s multi-stakeholder working group for the elaboration of a National Action Plan on Business and Human Rights. The opinions contained in this document do not necessarily reflect those of the Government of Mexico or of any other institutions to which the author is affiliated. The author wishes to express his gratitude to the editors of the Business and Human Rights Journal and its peer reviewers for their constructive and insightful comments.

References

1 Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/RES/17/4 (16 June 2011).

2 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011).

3 Framework Convention on Climate Change, ‘Adoption of the Paris Agreement’, FCCC/CP/2015/L.9/Rev.1 (12 December 2015), para 134; Annex, Art 6.8.b); Human Rights Council, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’, A/HRC/31/52 (1 February 2016), paras 57, 66.

4 General Assembly, ‘Transforming our World: The 2030 Agenda for Sustainable Development’, A/RES/70/1 (25 September 2015), para 67.

5 Humberto Cantú Rivera, ‘¿Hacia un tratado internacional sobre la responsabilidad de las empresas en el ámbito de los derechos humanos? Reflexiones sobre la primera sesión del Grupo de Trabajo intergubernamental de composición abierta’ (2016) XVI Anuario Mexicano de Derecho Internacional 425; Olivier De Schutter, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1:1 Business and Human Rights Journal 41; Carlos López and Ben Shea, ‘Negotiating a Treaty on Business and Human Rights: A Review of the First Intergovernmental Session’ (2016) 1:1 Business and Human Rights Journal 111; Carlos López, ‘Struggling to Take Off? The Second Session of Intergovernmental Negotiations on a Treaty on Business and Human Rights’ (2017) 2:2 Business and Human Rights Journal 365; Marco Fasciglione, ‘Towards a Human Rights Treaty on Transnational Corporations and Other Business Enterprises: The First Session of the UN Open-ended Intergovernmental Working Group’ (2015) 3 Diritti umani e diritto internazionale 673; David Bilchitz, ‘The Necessity for a Business and Human Rights Treaty’ (2016) 1:2 Business and Human Rights Journal 203.

6 Humberto Cantú Rivera, ‘Regional Approaches in the Business and Human Rights Field’ (2013) 35 L’Observateur des Nations-Unies 53.

7 Such is the case of France, Switzerland, Germany and the United States in different areas, although particularly centred on corporate human rights due diligence.

8 The OECD Guidelines for Multinational Enterprises, adopted in 1976, were updated in 2011 to add a chapter on human rights, in order to accurately reflect the outcome document produced by the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, the UN Guiding Principles on Business and Human Rights.

9 In a recent International Labour Conference, one of the most important topics was precisely the issue of supply chains and labour rights violations; International Labour Organization, Resolution Concerning Decent Work in Global Supply Chains (Geneva: ILO, 2016). In addition, the ILO Tripartite Declaration was updated in 2017 to include explicit references to the central role of the UNGPs in ensuring business respect for human rights; International Labour Organization, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 5th edition, 2017.

10 There are numerous examples of this: from one of the first initiatives that appeared in the early 2000s (Business Leaders Initiative on Human Rights) to test the effectiveness of the Norms proposed by the UN Sub-Commission on the Promotion and Protection of Human Rights, to the companies that worked with John Ruggie to test in practice the elements of the second pillar of the UNGPs, on the corporate responsibility to respect human rights through the use of due diligence and impact assessments (such as Cerrejón in Colombia or Sakhalin Energy in Russia), the increase in sustainability and human rights-oriented practices by companies is significant. On the other hand, some NGOs and other actors have equally started to work with and demand companies to respect human rights, including through the use of performance indicators (such as the Corporate Human Rights Benchmark) or the development of uniform reporting methodologies on the actions to identify, assess, prevent and/or mitigate risks of impacts on human rights (as is the case with the UNGP Reporting Framework).

11 Tomuschat, Christian, Human Rights: Between Idealism and Realism, 3rd edn (Oxford: Oxford University Press, 2014), p 175 Google Scholar : ‘In general, it can be said that effectiveness is best ensured if a human rights treaty is made part of national law. Only if human rights guarantees can be relied upon by the parties concerned, if the judicial body called upon to adjudicate an ensuing dispute must take account of and apply such guarantees, and if as a consequence a body of national decisions progressively builds up, will the relevant provisions shape the public conscience of the country concerned.’ Recent regional human rights case law highlights a growing interest on this approach: I/A Court H.R., Case of Human Rights Defender et al v Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgement of 28 August 2014. Series C no 283, para 263, stipulating the different requirements a public policy for the protection of human rights defenders must include. On the other hand, international environmental law could be an interesting exception, where the use of certain types of instruments for the domestic implementation of international obligations of the state is occasionally defined. For an analysis, see Stewart, Richard B, ‘Instrument Choice’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) 147, 168–172 Google Scholar .

12 The most significant example to date is the (updated) toolkit developed jointly by the International Corporate Accountability Roundtable (ICAR) and the Danish Institute for Human Rights: ICAR/DIHR, National Action Plans on Business and Human Rights Toolkit, 2017 edition. The UN Working Group’s guidance on this issue would seem to also suggest the convenience of a uniform structural approach to NAPs, although allowing enough margin to states to address issues that may be relevant to their national context.

13 World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (25 June 1993), para 71.

14 General Assembly, ‘World Conference on Human Rights’, A/RES/48/121 (20 December 1993).

15 European Commission, ‘A Renewed EU Strategy 2011–14 for Corporate Social Responsibility’, COM/2011/681/FINAL (25 October 2011), para 4.8.2.

16 On the difference between corporate social responsibility and business and human rights, see Ramasastry, Anita, ‘Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability’ (2015) 14:2 Journal of Human Rights 237 CrossRefGoogle Scholar .

17 Council of the European Union, ‘EU Strategic Framework and Action Plan on Human Rights and Democracy’, Doc 11855/12 (25 June 2012), para 25(c).

18 United Kingdom, the Netherlands, Denmark, Sweden, Lithuania, Germany, France, Switzerland, Poland, Italy, Spain, Finland, Norway and Belgium.

19 European Commission, ‘Action Plan on Human Rights and Democracy (2015–2019): Keeping Human Rights at the Heart of the EU Agenda’, JOIN (2015) 16 final, para 17b.

20 Council of the European Union, EU Action Plan on Human Rights and Democracy (2015–2019), Doc 10897/15 (20 July 2015), para 18a,c.

21 Human Rights Council, ‘Outcome of the Second Session of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/G.12/2/1 (7 June 2012), para 2, where the Working Group endorsed the proposal on developing national plans to implement the UNGPs in EU member states.

22 Human Rights Council, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/20/29 (10 April 2012), para 68.

23 General Assembly, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/69/263 (5 August 2014).

24 Ibid, para 2.

25 Ibid, para 6.

26 OAS General Assembly, ‘Promotion and Protection of Human Rights in Business’, AG/RES.2840 (XLIV-O/14) (4 June 2014).

27 OAS General Assembly, ‘Promotion and Protection of Human Rights’, AG/RES. 2887 (XLVI-O/16) (14 June 2016).

28 Ibid, para I.ii.3. The 2017–2021 Strategic Plan of the Inter-American Commission on Human Rights also makes explicit reference to their project to work in supporting the development of National Action Plans by states in the Americas.

29 Human Rights Council, ‘Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights’, A/HRC/RES/26/9 (26 June 2014).

30 A clear sample of this is the insistence of the EU Delegation during the first session of the Intergovernmental Working Group to include a panel on the implementation of the UNGPs, whose objective was to highlight the adequacy of National Action Plans.

31 Joanna Kulesza, Due Diligence in International Law (Leiden: Brill-Nijhoff, 2016) 262; Vincent Chétail, ‘The Legal Personality of Multinational Corporations, State Responsibility and Due Diligence: The Way Forward’ in Denis Alland et al (eds), Unity and Diversity of International Law: Essays in Honour of Professor Pierre-Marie Dupuy (Leiden: Brill-Nijhoff, 2014) 105.

32 De Schutter, Olivier, International Human Rights Law: Cases, Materials, Commentary, 2nd edn (Cambridge: Cambridge University Press, 2014) 477–488 CrossRefGoogle Scholar .

33 McBeth, Adam, Nolan, Justine and Rice, Simon, The International Law of Human Rights (Melbourne: Oxford University Press, 2011) 112–113 Google Scholar .

34 Alston, Philip and Goodman, Ryan, International Human Rights (New York: Oxford University Press, 2013) 1047 Google Scholar : ‘Ultimately, effective protection of human rights must come from within the state. The international system generally seeks to compel states to fulfil their obligations through one or another method – either observing national law (constitutional or statutory) that is consistent with the international norms, or making the international norms themselves part of the national legal and political order.’ See also Martin-Chenut, Kathia and Perruso, Camila, ‘Organes de protection des droits de l’homme et responsabilité des entreprises: la contribution des obligations positives’ in Kathia Martin-Chenut and René de Quenaudon (eds), La RSE saisie par le droit: Perspectives interne et international (Paris: A. Pedone, 2016) 659 Google Scholar .

35 González Tachiquin, Marcelo, ‘El estudio de las políticas públicas: un acercamiento a la disciplina’ (2005) 2 Quid Juris 99, 110 Google Scholar , mentioning that public policies imply the establishment of one or several strategies oriented to finding solutions to public problems, while ensuring social benefits resulting from the decisional processes involving a collaboration of government and civil society.

36 Hassenteufel, Peter, Sociologie politique: l’action publique, 2nd edn (Paris: Armand Colin, 2014) 7 Google Scholar .

37 Ibid, p 9.

38 Mény, Yves and Thoenig, Jean-Claude, Politiques publiques (Paris: P.U.F., 1989)Google Scholar .

39 Muller, Pierre, Les politiques publiques, 10th edn (Paris: P.U.F., 2013) 25 Google Scholar .

40 Vázquez, Daniel and Delaplace, Domitille, ‘Public Policies from a Human Rights Perspective: A Developing Field’ (2011) 14 SUR-International Journal on Human Rights 34 Google Scholar .

41 Ibid. According to the authors, ‘The cycle is comprised of seven processes: the entry of the problem into the public agenda, framing of the problem, designing possible solutions, analysis of the pros and cons, decision-making, implementation, and evaluation.’ However, they add: ‘Today we know that the public policy process can follow these steps, but that it is not always and not necessarily the case. Not uncommonly, the links can merge together and the step-by-step process can become less clear.’

42 Nagel, Stuart S, ‘Efficiency, Effectiveness, and Equity in Public Policy Evaluation’ (1986) 6:1 Policy Studies Review 99 CrossRefGoogle Scholar .

43 Sandfort, Jodi and Moulton, Stephanie, Effective Implementation in Practice: Integrating Public Policy and Management (San Francisco: Jossey-Bass, 2015) 12–13 Google Scholar .

44 This, however, is obviously confronted to the politics of its corresponding scenario. Ibid, p 13: ‘It is well established that in public programs, definitions of effectiveness vary dramatically because of political differences, competing vantage points, and multiple goals. Desired results often are left intentionally vague in normal policy statements not only to provide political cover, but also to allow localized interpretations and evaluations of effectiveness. In fact, many scholars note the irony that what is good for implementation – clear assignment of responsibilities, specification of change processes, and clear outcomes – is often very bad for politics.’ See also Christopher C Potter and Jennifer Harries, ‘The Determinants of Policy Effectiveness’ (2006) 84:11 Bulletin of the World Health Organization 843, who identify the limiting factors to the effectiveness of policies in the health sector, which may be analogically applied to the business and human rights context.

45 On this point, see Hassenteufel, note 36, p 19, who points out that transboundary interactions – such as those that take place in the business and human rights context – are less controlled by states, due to the importance that some transnational actors (such as NGOs, businesses or experts) have gained in such processes; Petiteville, Franck and Smith, Andy, ‘Analyser les politiques publiques internationales’ (2006) 56:3 Revue française de science politique 357, 362 CrossRefGoogle Scholar ; Argüden, Yilmaz, Keys to Governance (London: Palgrave-Macmillan, 2011), 39–40 CrossRefGoogle Scholar .

46 Human Rights Council, ‘Protect, Respect and Remedy: a Framework for Business and Human Rights’, A/HRC/8/5 (7 April 2008), paras 18–22.

47 Hassenteufel, note 36, pp. 10–12. According to the author, there are several types of policies, including incentive policies that do not necessarily correspond to a specific or clear content, and that have a symbolic dimension. They can include reports, public speeches or organizational measures that do not necessarily aim to the adoption of concrete decisions, but rather acting in relation to the representation of an issue and showing that public officials are concerned by a particular challenge or problem.

48 Human Rights Council, note 2, commentary to Principle 8.

49 General Assembly, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/73/163 (16 July 2018), para 84(a): ‘The lack of policy coherence between governmental departments and agencies that shape business practice and the human rights obligations of the State is a significant gap. A good starting point, however, is that this is increasingly being recognized by most Governments, including in the growing number of national action plans.’

50 Human Rights Council, ‘Improving accountability and access to remedy for victims of business-related human rights abuse through State-based non-judicial mechanisms: Report of the United Nations High Commissioner for Human Rights’, A/HRC/38/20 (14 May 2018), paras 6, 10: ‘State-based non-judicial mechanisms may take many different forms. In most jurisdictions, a range of mechanisms with a role to play in the handling of complaints and/or resolving disputes arising from business-related human rights abuses may be identified … While some have mandates relating to all human rights, many are specialized bodies that focus on specific human rights-related themes, such as labour rights, non-discrimination, consumer rights, the right to privacy, environmental rights, or the rights to water or to health. Common examples of relevant State-based non-judicial mechanisms include labour inspectorates; employment tribunals; consumer protection bodies (often tailored to different business sectors); environmental tribunals; privacy and data protection bodies; State ombudsman services; public health and safety bodies; professional standards bodies; and national human rights institutions … State-based non-judicial mechanisms can be broken down into five broad categories: complaint mechanisms; inspectorates; ombudsman services; mediation or conciliation bodies; arbitration and specialized tribunals.’

51 Ibid, A/HRC/38/20 (14 May 2018).

52 cf. Damiano de Felice and Andreas Graf, ‘The Potential of National Action Plans to Implement Human Rights Norms: An Early Assessment with Respect to the UN Guiding Principles on Business and Human Rights’ (2015) 7:1 Journal of Human Rights Practice 40, 47: ‘Coordination among different government actors is one of the most daunting challenges in the implementation of human rights, be it at the state level in federal countries … or with respect to specific bureaucratic units … The consequence is that compliance with human rights norms is favoured by a certain degree of centralization of decision making and implementation…’.

53 Nye, Joseph S, ‘Hard, Soft, and Smart Power’ in Andrew F Cooper, Jorge Heine and Ramesh Thakur (eds), The Oxford Handbook of Modern Diplomacy (Oxford: Oxford University Press, 2013) 559, 563–565 Google Scholar ; see also Changhe, Su, ‘Soft Power’ in Andrew F Cooper, Jorge Heine and Ramesh Thakur (eds), The Oxford Handbook of Modern Diplomacy (Oxford: Oxford University Press, 2013) 544 Google Scholar .

54 Claire Methven O’Brien et al, ‘National Action Plans: Current Status and Future Prospects for a New Business and Human Rights Governance Tool’ (2016) 1:1 Business and Human Rights Journal 117, 118; de Felice and Graf, note 52, p 44: ‘The production of a government strategy does not coerce governments to take action, nor does it create transnational links between domestic and international actors’.

55 Catá Backer, Larry, ‘Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might Bind Them All’ (2015) 38 Fordham International Law Journal 457 Google Scholar , 473–474, 476: ‘The First Pillar instructs States that they must, as an initial matter, deal with the structures and substance of their own duty to protect human rights before they turn that aggregation of duty (expressed in law and policy) outward to regulatory objects. Thus every NAP ought to require States to look to themselves first’.

56 On this point, see Deva, Surya, ‘Corporate Human Rights Abuses: What Role for National Human Rights Institutions?’ in Hitoshi Nasu and Ben Saul (eds), Human Rights in the Asia-Pacific Region: Towards Institution Building (London: Routledge, 2011)Google Scholar .

57 Methven O’Brien et al, note 54.

58 It is surprising to see that the inherent difficulties deriving from the separation of powers are not discussed in this topic. The adoption of public policies and legislation are completely separate and independent functions, often surrounded by antagonism between the different parties. Thus, the adoption of a National Action Plan or even the diagnosis identifying the need to undertake legal reforms to cover the gaps that may be detected as a result of a baseline assessment, do not imply that a legislative reform will take place.

59 Of course, it does not escape out attention that even conventional human rights instruments (as well as domestic legislation and regulation) can be insufficient tools against the lack of political will to implement them at the domestic level, an issue that is unfortunately present in a large majority of states. However, the relative specificity of the content of international instruments and the obligation to adopt measures to render them effective are ingredients that may evolve into clear obligations and responsibilities, and that could eventually help victims in judicial procedures seeking reparation.

60 The UN Working Group has highlighted the importance of improving the policy, legislative and regulatory domestic frameworks to prevent human rights violations and protect against them. General Assembly, note 23, para 7e.

61 Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business (London: Routledge, 2012); Methven O’Brien et al, note 54, p 122: ‘…if NAPs commit only to “voluntary” approaches, and not “hard law” or “regulatory” ones, it is unlikely they will achieve the regulatory “smart mix” needed to deliver change on the ground’.

62 General Assembly, note 23.

63 Michael K Addo, Open Consultation on the Strategic Elements of National Action Plans in the Implementation of the UN Guiding Principles on Business and Human Rights, 20 February 2014, p 2.

64 General Assembly, note 23, para 6.

65 Ibid, para 33.

66 Ibid, paras 37–39.

67 Ibid, para 44.

68 Ibid, paras 68–70.

69 Ibid, paras 71–72.

70 UN Working Group on Business and Human Rights, Guidance on National Action Plans on Business and Human Rights, (Geneva: OHCHR, 2016).

71 Ibid, p 1.

72 Ibid, pp 5–6.

73 Ibid, pp 7–8.

74 Ibid, pp 8–9.

75 Ibid, pp 11–12.

76 Statement by Surya Deva, Chairperson of the Working Group on Business and Human Rights, 2017 UN Forum on Business and Human Rights, Closing plenary, 29 November 2017, available at http://www.ohchr.org/Documents/Issues/Business/ForumSession6/ClosingSuryaDeva.pdf (accessed 9 April 2018).

77 Human Rights Council, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Report on the First African Regional Forum on Business and Human Rights’, A/HRC/29/28/Add.2 (2 April 2015), para 91.

78 Human Rights Council, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Visit to the United States of America’, A/HRC/26/25/Add.4 (6 May 2014), para 18.

79 Ibid, para 102(a).

80 Human Rights Council, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Visit to Mexico’, A/HRC/35/32/Add.2 (27 April 2017), para 108.

81 Statement at the End of Visit to Mexico by the United Nations Working Group on Business and Human Rights, Mexico City, 7 September 2016, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20466&LangID=E (accessed 9 April 2018).

82 Human Rights Council, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises on its Visit to Korea’, A/HRC/35/32/Add.1 (1 May 2017), para 56.

83 Statement at the End of Visit to Peru by the United Nations Working Group on Business and Human Rights, Lima, 19 July 2017, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21888&LangID=E (accessed 9 April 2018).

84 Those of France, Colombia, Chile, the Netherlands, Belgium, the United States and the United Kingdom.

85 For an interesting study on this issue, see Claire Methven O’Brien, Nicole Vander Meulen and Amol Mehra, Public Procurement and Human Rights: A Survey of Twenty Jurisdictions (July 2016).

86 For example, the only other federal state in the sample are the United States, which however do not specify measures to ensure that its constituent states work closely with the federal government to implement the NAP. A different scenario can be seen in the German NAP, where some measures are expected to be addressed by state and local governments in coordination with the federal government.

87 Paloma Muñoz Quick, ‘Buscando la reconciliación: Planes de Acción para lograr la transición’ in Humberto Cantú Rivera (ed), Derechos humanos y empresas: reflexiones desde América Latina (San José: IIDH, 2017) 313.

88 Yet, significant opposition appeared in the cases of Chile, Colombia and France, where the NAP processes were criticized for the lack of effective participation of different stakeholders in the definition of priorities and modalities to be followed in the public policy. This points to a crucial difference between multi-stakeholder participation and multi-stakeholder development and decision-making, a situation that reflects the definitive role that public authorities play in the definition of public policies. On these aspects, see ICAR and Dejusticia, Assessment of the National Action Plan (NAP) on Business and Human Rights of Colombia (May 2017) 1; DIHR, ‘France’, National Action Plans on Business and Human Rights, available at https://globalnaps.org/country/france/ (accessed 20 February 2018).

89 Ibid.

90 Stéphane Brabant and Elsa Savourey, ‘Loi relative au devoir de vigilance: Des sanctions pour prévenir et réparer?’ (2017) 26 Revue internationale de la compliance et de l’éthique des affaires 21; Sandra Cossart, Jérôme Chaplier and Tiphaine Beau de Lomenie, ‘The French Law on Duty of Care: A Historic Step Towards Making Globalization Work for All’ (2017) 2:2 Business and Human Rights Journal 317.

91 Backer, note 55, p 469: ‘… NAPs are understood to offer a tool for governments to articulate priorities and coordinate the implementation of the GPs, to effectively conduct a due diligence exercise in the furtherance of their duty to protect human rights…’.

92 In that sense, adequate implementation of public policies by governments would theoretically render the adoption of domestic and international binding instruments unnecessary; cf. Blackwell, Sara and Vander Meulen, Nicole, ‘Two Roads Converged: The Mutual Complementarity of a Binding Business and Human Rights Treaty and National Action Plans on Business and Human Rights’ (2016) 6:1 Notre Dame Journal of International and Comparative Law 51 Google Scholar .

93 An important example of the possible complementarity between legislation and public policies can be observed in the United States of America, where the Dodd-Frank Wall Street Reform and Consumer Protection Act’s section 1502 addressing due diligence in minerals supply chains and the National Action Plan on Responsible Business Conduct (despite its lack of progressive focus) coexist. Another example is France, where the law on duty of vigilance and the NAP represent binding and non-binding measures to address the issue of corporate human rights responsibilities.

94 Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the Sixth Periodic Report of the United Kingdom of Great Britain and Northern Ireland’, E/C.12/GBR/CO/6 (24 June 2016), paras 11–13; Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the Sixth Periodic Report of Sweden’, E/C.12/SWE/CO/6 (24 June 2016), paras 11–12; Committee on Economic, Social and Cultural Rights, ‘Observations finales concernant le quatrième rapport périodique de la France’, E/C.12/FRA/CO/4 (24 June 2016), paras 12–13; Committee on the Rights of the Child, ‘Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland’, CRC/C/IRL/CO/3-4 (1 March 2016), paras 23–24. It must be noted that treaty bodies have considered the focus on National Action Plans insufficient to effectively control and regulate corporate activity; thus, they recommend the adoption of a binding regulatory framework at the domestic level.

95 See del Mar Rojas Buendía, María, ‘El desarrollo de los Planes de Acción Nacional sobre empresa y derechos humanos y el estado actual de los Planes de Acción sobre RSC: España y los países nórdicos’ (2016) 23 Universitas. Revista de Filosofía, Derecho y Política Pública 35 Google Scholar , explaining some of the motives why not all states can follow the voluntary model that has been particularly advanced by Nordic countries.