September 01, 2016 GPSolo | Column

CIVIL RIGHTS AND SOCIAL JUSTICE: Business and Human Rights: The Changing Landscape for U.S. Lawyers

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. 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 long-standing proponent of the UNGPs. Accordingly, the U.S. State Department is spearheading the development of a National Action Plan (NAP) to promote and incentivize responsible business conduct. 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.

U.S. private sector support for the UNGPs. Business enterprises—from transnational conglomerates to small firms—are incorporating elements of the UNGPs into their policies and practices. Some also support complementary initiatives such as the Organisation 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. 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, Switzerland. Last year’s forum, which attracted some 2,000 participants from around the world, was held November 16 to 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 featured on the agenda.

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.” Composed of several research projects, this initiative examines corporate liability under criminal, quasi-criminal, and civil law, including such topics as extra-territorial 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 was submitted to the UN Human Rights Council in June 2016.

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.” 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. 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. Through its Center for Human Rights (americanbar.org/groups/human_rights.html) 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.

ABA Section of Civil Rights and Social Justice

This article is an abridged and edited version of one that originally appeared on page 23 of Human Rights, 2015 (41:2).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/crsj

PERIODICALS: Human Rights, quarterly journal; CRSJ NewsReport, quarterly electronic publication.

CLE AND OTHER PROGRAMS: The Section offers a variety of cutting-edge CLE programs and teleconferences each year; for more information, visit the section’s website.

EVENTS: Thurgood Marshall Award Reception and Dinner, held each year during the ABA Annual Meeting; Father Drinan Service Award Reception, held each year during the ABA Midyear Meeting.

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.