January 13, 2021

ABA Submission to the UN Working Group on Business and Human Rights

Morvarid Bagheri

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Corinne Lewis

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PDF with Citations

The United Nations Human Rights Council’s unanimous adoption of the UN Guiding Principles on Business and Human Rights (UNGPs), in June 2011, marked a significant advancement in addressing the long-standing governance gap concerning corporations’ responsibilities for their negative impacts on human rights, wherever they might occur.  Considered the global standard for preventing and addressing adverse human rights impacts of businesses.

At the same time, the UN Human Rights Council established the UN Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, commonly referred to by the shorter designation - the Working Group on Business and Human Rights (UNWG).   The UNWG’s key responsibility is to promote the effective and comprehensive dissemination and implementation of the UNGPs.  Among ways in which the UNWG has done so is through its chairmanship of the annual three-day UN Forum on Business and Human Rights, which in recent years has attracted over 2,000 participants, that include governmental officials, business representatives, civil society participants, academics and others. The UNWG also carries out field visits and issues annual and thematic reports, including on gender and corporate human rights due diligence.

The Past Decade: Some Progress but Problems Remain

Pursuant to the encouragement of the UNWG, over 20 countries have created National Action Plans on business and human rights in connection with the State responsibility to disseminate and implement the UNGPs. Financial institutions, including the International Finance Corporation and the World Bank, have integrated human rights due diligence principles from the UNGPs into their lending requirements. Businesses have also taken steps to fulfil their responsibility to respect human rights through adoption of policies addressing their human rights responsibilities and practices for assessing and addressing their human rights impacts. In addition, businesses are increasingly adopting grievance mechanisms to provide a means for persons whose rights have been adversely affected to seeking a remedy.

However, as the UNGPs enter their second decade, serious human rights infringements continue to pervade business practices throughout the world and negatively affect workers’ rights, the food, water and health of local communities and even the survival of indigenous peoples and minority communities.  Oftentimes, persons whose rights have been negatively impacted by businesses have difficulty accessing legal avenues to seek accountability and obtain a remedy. 

ABA Support for Implementation of the UNGPs

The UNWG, in looking forward to how to further implementation of the UNGPs over the next decade, has launched the global project, “Business and Human Rights: Towards a Decade of Global Implementation,” also known as “UNGPs 10+/Next Decade.”  In adopting an inclusive and transparent approach to the project, the UNWG invited written input from a wide range of stakeholders, including on: what progress has taken place with respect to the implementation of the UNGPs in the past decade; the promising developments and practices that could be built on; the remaining gaps and challenges; and what is needed to achieve meaningful progress over the next decade.

In response to this call, in November 2020, the ABA submitted a letter to the UNWG highlighting examples of how the ABA has, and continues to, contribute to the implementation of the UNGPs. The submission was prepared by an International Law Section (ILS) working group comprised of members from the International Human Rights and UN and International Organizations Committees and the ABA Representatives to the United Nations. Morvarid Bagheri, Co-Vice Chair - Policy and Programs, ILS International Human Rights Committee, coordinated the effort. Valuable support and assistance were provided by: Renee Dopplick;  David Dettman, ABA Rule of Law Initiative (ROLI), Michael Pates, ABA Center for Human Rights (CHR); Kristi Gaines, ABA Governmental Affairs Office; and Max Trujilo, the ILS Rule of Law Officer.  The submission benefited greatly from this collaborative approach.

The submission notes that the ABA endorsed the UNGPs in 2012 and urges governments, the private sector, and the legal community to integrate the UNGPs into their respective operations and practices. Additionally, the submission illustrates how the ABA has supported and contributed to the implementation of the UNGPs through its efforts to improve the role and responsibilities of lawyers, advance the rule of law, promote the rights of women, and combat human trafficking and corruption at home and abroad. Below are some of the ABA policies, programs and publications, which were highlighted in the submission to assist the UNWG in identifying how to build upon achievements, address gaps and challenges and develop a roadmap for the widespread implementation of the UNGPs by 2030. 

A. Advancing the Role of Lawyers in Implementing the UNGPs

Through trainings, programs and publications, the ABA promotes lawyers’ understanding of the UNGPs and encourages the provision of advice on human rights risks to business clients consistent with their ethical and professional responsibilities. For example, the ABA Section of International Law (ABA SIL) is currently conducting a series of 12 virtual training sessions for lawyers on a range of key topics relating to business and human rights, including on conducting human right due diligence. In 2019, ABA ROLI held a program for six Pakistani law faculty to observe business and human rights teaching at U.S. law schools, discuss course development and teaching methodology with U.S. law faculty, and discussed emerging trends in the field with human rights organizations. Additionally, the ABA held panels at the annual UN Forum on Business and Human Rights in 2019 relating to the role and responsibilities of lawyers, and ABA CHR is currently working with stakeholders on a contractual clauses project to ensure human rights due diligence in business contracting.

The ABA also publishes books and guidelines to advance the role of lawyers in implementing the UNGPs, including “A Guide to Human Rights Due Diligence for Lawyers,” (forthcoming in the fall of 2021), “Business and Human Rights: Advising Clients on Respecting and Fulfilling Human Rights” (2020), “The Lawyers Corporate Social Responsibility Deskbook: Practical Guidance for Corporate Counsel and Law Firms” (2019), “Designing an Effective Anti-Bribery Compliance Program: A Practical Guide for Business” (2018), “Business, Human Rights, and Sustainability Sourcebook” (2016), and “Corporate Responsibility for Human Rights Impacts” (2015).

B. Supporting Implementation of the UNGPs by Strengthening the Rule of Law

Through its advocacy for governments to respect the rule of law, the ABA strives to ensure that States implement policies, legislation and regulations that help prevent, investigate, punish and redress human rights abuses by third parties.  The ABA also works to promote corporate accountability through judicial mechanisms by strengthening judicial systems and promoting respect for the legal profession.

The ABA also recognizes the important role of non-lawyer human rights defenders in protecting the rule of law and has urged businesses to promote support for civic freedoms and human rights defenders by implementing the analytical and operational framework set forth in the report “Shared Space Under Pressure.”

C. Supporting Implementation of the UNGPs by Advancing Women’s Rights

The ABA recognizes the role of law in promoting the equality, equal protection and equal access to opportunities and benefits for women and affirms the importance of legal literacy to the functioning of democracies and the exercise of human rights. In 2018, ABA ROLI launched its “Women and Girls Empowered” (WAGE) initiative to help advance women’s economic empowerment by providing financial support to women microentrepreneurs and working with local microfinance institutions and civil society to reduce legal and practical barriers that women face in the business world. ABA ROLI also participates in the Grameen Foundation’s “Reducing Barriers to Women’s Economic Empowerment in El Salvador and Honduras Initiative,” which aims to address challenges faced by female entrepreneurs in starting and growing sustainable businesses, including linkages between financial inclusion, gender-based violence and conflict.

The ABA also has helped further implementation of the UNGPs by encouraging the use of a gender lens in its programs, including “Legal Perspectives on Impact Investing for Gender and Women’s Empowerment” at the ABA ILS 2020 Meeting, “Women's Rights in Sustainable Development: The New Legal Frontiers” at the 2016 Session of the UN Commission on the Status of Women, and “Advancing the Role of Women in Peace, Justice, and Strong Institutions” at the 2019 UN High-Level Political Forum, which covered economic empowerment, impact investing, meaningful workplace inclusion, and workplace protections against sexual harassment and violence.

D. Supporting Implementation of the UNGPs by Combatting Human Trafficking

The ABA has helped combat human trafficking by formulating the “ABA Model Business and Supplier Policies on Labor Trafficking and Child Labor” and publishing “Freedom for All: An Attorney’s Guide to Fighting Human Trafficking,” “International Guiding Principles on Street Children,” as well as model contract clauses providing human rights protections for workers in international supply chains. Moreover, the ABA supports legislation to combat human trafficking and has urged other bar associations to help improve laws addressing the trafficking of children, including through the development and adoption of model or uniform anti-trafficking laws.

ABA ROLI also created a Human Trafficking Assessment Tool to help states and civil society combat human trafficking and provides legal and technical assistance programs on legislative drafting, policy formulation, capacity building and training, strengthening multi-sectoral and international cooperation, civic education, strategic litigation and trial monitoring to help further this objective.

Moreover, the ABA has urged for the rights of trafficking victims to be protected, including that victims not be prosecuted for crimes committed in relation to their status as a victim of human trafficking. The ABA further recommends that NGOs, donors, and multilateral agencies work with governments to develop and adopt appropriate methodologies to create publicly accessible national databases of information on assistance to victims of sexual violence, enabling stakeholders to coordinate, track, and evaluate this assistance.

E. Supporting Implementation of the UNGPs by Combatting Corruption

The ABA encourages national governments and the international community to adopt and implement effective legal measures and mechanisms, which are actively monitored and enforced, to deter corrupt practices in the conduct of international business. It also encourages ratification by governments of the UN Convention Against Corruption, the Inter-American Convention against Corruption, and the Council of Europe's Criminal Law Convention on Corruption.

The ABA has helped to combat corruption through publications such as “A Compendium of Good Practice to Counter Corruption: A Collection of Briefings and Checklists for Key Sectors,” and “Business Bribes: Corporate Corruption and the Courts.” Moreover, ROLI’s “Regional Anti-Corruption Advisor” program has worked to create systems and tools that help reduce avenues for corruption and promote cultural norms and practices within agencies that promote integrity. In 2019, ABA ROLI conducted six programs in South and South-East Asia to help prevent transnational crime and provide appropriate remedies for harm caused by such activity.

Next Steps for the ABA: Addressing Gaps in Policy

In leading the ABA’s response to the UNWG’s call for input, the ABA SIL International Human Rights Committee (IHRC) was able to identify the existence of gaps in current ABA policy, which if addressed, could enable the ABA to more effectively support the widespread implementation of the UNGPs over the next decade. As a result, the IHRC’s Business and Human Rights Subcommittee plans to work collaboratively with other relevant ABA entities to address shortcomings in ABA policy. This will include building on existing ABA policies, including resolution 109 (2012), which endorsed the UNGPs.