April 01, 2015

Business and Human Rights: The Changing Landscape for U.S. Lawyers

by Isabella D. Bunn

The subject of business and human rights, linked to the broader field of corporate social responsibility, invokes a complex range of issues in law, management, and public policy. At the local, national, and international levels, diverse stakeholders are demanding everything from due diligence in supply chains to protection of indigenous cultures. Members of the legal profession throughout the United States—in private practice, corporate law departments, government agencies, advocacy organizations, and academic institutions—are assessing a number of groundbreaking developments.

The United Nations Guiding Principles on Business and Human Rights (UNGPs), endorsed by the Human Rights Council in June 2011, play a key role in this process. (See Report of the Special Representative of the Secretary General on Business and Human Rights, “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework,’” A/HRC/17/31 (Mar. 21, 2011). The UNGPs aim to provide an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. They are based on a governance framework that reinforces the duty of states to protect human rights, the responsibility of companies to respect human rights, and the need to provide adequate judicial and non-judicial remedies. Around the world, these three pillars are being advanced—and tested—in ways that will reshape the work of U.S. lawyers.

U.S. Government Commitment to a National Action Plan

The United States is a longstanding proponent of the UNGPs. Accordingly, the State Department is spearheading the development of a national action plan (NAP) to promote and incentivize responsible business conduct. Press Release, The White House, Office of the Press Sec’y, Fact Sheet: The U.S. Global Anticorruption Agenda (Sept. 24, 2014); U.S. Dep’t of State, USG National Action Plan on Responsible Business Conduct: Frequently Asked Questions (Feb. 12, 2015). The scope includes issues such as human rights, labor rights, human trafficking, land tenure, procurement, anticorruption, and transparency.

Lawyers should expect the NAP to take stock of existing normative frameworks, highlight best practices from U.S. companies, and identify a range of future commitments from a cross-section of U.S. government departments and agencies. However, advocates for greater corporate accountability are also urging that the NAP consider appropriate legislative and regulatory reforms, as well as enhanced mechanisms for the redress of alleged human rights violations. (See materials on a dedicated website hosted by the International Corporate Accountability Roundtable, http://www.nationalactionplan.us.)

U.S. Private Sector Support for UNGPs

Business enterprises—from transnational conglomerates to small firms—are incorporating elements of the UNGPs into their policies and practices. (Examples are provided on the company action platform of the Business & Human Rights Resource Centre, http://www.business-humanrights.org/en/company-action-platform.) Some also support complementary initiatives such as the Organization for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises and the UN Global Compact. Look for increased take-up of the UNGPs across industry sectors, as well as consideration of human rights impact assessments and reporting requirements. Of note is the close relationship with the corporate compliance function, and with the analysis of operational, financial, legal, and reputational risks. While corporations may remain cautious about the expansion of regulations and liabilities, there is a growing understanding that responsibilities related to human rights cannot be considered as merely “voluntary.”

U.S. Stakeholder Engagement with the UN

The implementation of the UNGPs is characterized by extensive stakeholder engagement. Wide participation is actively encouraged by the UN, drawing in companies, financial institutions, trade associations, unions, faith-based groups, research institutes, civil society organizations, and specialized advocacy coalitions. American lawyers find three current clusters of activity within the UN Office of the High Commissioner for Human Rights (OHCHR) of particular interest.

First, a Working Group on Business and Human Rights holds the mandate for the implementation of the UNGPs. Human Rights Council Res. 17/4, Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/17/4, ¶ 6 (July 6, 2011). It has clarified many conceptual, operational, and practical issues. A key follow-up mechanism is an annual multi-stakeholder forum on business and human rights held in Geneva. This year’s forum, which attracted over 2,300 participants from around the world, was held on November 16–18, 2015. Questions with legal implications—such as access to justice, trends in human rights litigation, support for justice defenders, incorporation of human rights standards in business contracts, and ethical guidance for the profession—were on the agenda. (Helpful portals with updates on both the working group and the forum are available at http://www.business-humanrights.org.)

Second, given the importance of the remedy pillar of the UNGPs framework, the OHCHR is currently undertaking a global consultation on “Enhancing Accountability and Access to Remedy in Cases of Business Involvement in Human Rights Abuses.” Comprised of several research projects, this initiative examines corporate liability under criminal, quasi-criminal, and civil law, including such topics as extraterritorial jurisdiction, funding of legal claims, criminal law sanctions, civil law remedies, and the prosecution of companies for involvement in severe human rights abuses. The final report will be submitted to the UN Human Rights Council in June 2016. (An overview of the work program is available at http://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/ RemedyWorkPlans.pdf.)

Third, the legal profession is watching another far-reaching development within the OHCHR: the establishment of a separate UN working group charged with the “elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.” Human Rights Council Res. 26/9, A/HRC/26/L.22/Rev.1 (June 25, 2014). Countries such as Ecuador, Cuba, and Venezuela, along with a group of civil society actors, have joined together in a “treaty movement” to press for greater legal accountability. (See http://www.treatymovement.com.) Some other stakeholders, including many in the private sector, are concerned that this effort may undermine the consensus brought about by the UNGPs.

In closing, it bears mention that the ABA is itself a stakeholder within this changing legal landscape. The ABA has officially endorsed the UNGPs and urges governments, the private sector, and the legal community to integrate such provisions into their respective operations and practices. ABA Resolution 109 (Feb. 2012). Through its Center for Human Rights and other entities, the ABA undertakes a range of collaborative activities at the national and international levels. It encourages broad engagement by bar associations and members of the profession, analyzes legal developments, and participates in advocacy and educational projects. In this evolving governance framework, U.S. lawyers are finding new opportunities to advance the field of business and human rights.

Isabella D. Bunn

Isabella D. Bunn is affiliated with Regent’s Park College, University of Oxford, and also serves as the Robert L. Long Professor of Ethics at the Bisk College of Business, Florida Institute of Technology. She holds a Ph.D. in international human rights law and chairs the Advisory Council for the ABA Center for Human Rights.