Handbook for lawyers: Introduction

The aims of this handbook are:

• to assist legal practitioners to develop, improve and supplement their legal services to their clients through a greater understanding of the different ways in which human rights issues can become relevant to different areas of legal practice;
• to support the IBA Practical Guide for Business Lawyers with further educational resources designed to encourage reflection and discussion among legal practitioners as to the identification and management of human rights risks arising from and/or connected with their clients’ activities, in a manner that is consistent with

  • the professional obligations of legal practitioners; and

  • the UN Guiding Principles on Business and Human Rights

The International Bar Association, established in 1947, is the world's leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world.

For further information about the International Bar Association click here.

In 2013 the IBA established a Business and Human Rights Working Group to coordinate the IBA’s work on business and human rights. To further support the work of bar associations with respect to business and human rights, the IBA Business and Human Rights Working Group (today known as the Legal Policy and Research Unit), with the assistance of the IBA Legal Projects Team, released in 2015:

• Business and Human Rights Guidance for Bar Associations; and
• the IBA Practical Guide for Business Lawyers.  The IBA Council formally adopted the Practical Guide for Business Lawyers in May 2016.
• the Reference Annex to the IBA Practical Guide on Business and Human Rights for Business Lawyers

As noted in the Practical Guide for Business Lawyers, the UNGPs are relevant to lawyers and law firms as:

• businesses (or business participants);
• providers of legal services to other businesses (or those who have relationships with businesses); and
• providers of legal services to other entities, including States, State agencies and international organisations.

This handbook focuses on the second of these.

Human rights are:

• Universal and inalienable;
• Interdependent and indivisible;
• Equal and non-discriminatory.

To find out more, click here

For a list of human rights issues monitored through the UN system, with links to relevant UN bodies, click here

Key international instruments on human rights

Business activities can affect the enjoyment by people of their human rights in many different ways.  These effects can be both positive and negative.

Positive impacts on the enjoyment of human rights include the creation of employment opportunities, which can allow people to enjoy a better standard of living. This, in turn, can contribute to the fulfilment of a range of other human rights such as rights to health, family life and privacy. Business activities contribute to economic development, and the taxes generated from business activity can help to support the realisation of a range of national development goals including the realisation of human rights. Business enterprises may invest in local infrastructure, such as roads, energy or water facilities, or may make available resources which can be of benefit to local communities.

On the other hand, business activities can also have adverse impacts on human rights. They may interfere with rights to health, property, water, or food. They may be operated in a way that fails to respect the rights not to be discriminated against on grounds of gender, race, ethnic background, language, religion, or political opinions. Workplaces may not be compliant with internationally recognised labour standards. As the UN Guiding Principles on Business and Human Rights make clear, investments by companies in projects and infrastructure designed to have a positive impact on human rights do not offset failures by companies to respect human rights in other areas (see Guiding Principle 11, Commentary).

The human rights impacts of businesses depend on many different factors, including the industry and sector, legal and regulatory environment, contractual relationships, state of economic development (both locally and nationally), political and cultural factors.  Identifying, analysing and addressing human rights risks can present many challenges for legal practitioners and their corporate clients in practice, particularly where there are (or appear to be) inconsistencies or incompatibilities between domestic law and internationally recognised human rights standards (see further Guiding Principle 23 and Commentary). In some cases, the need to prioritise responses to human rights risks will present corporate clients and their lawyers with further dilemmas. The UN Guiding Principles state that “where it is necessary to prioritize actions to address actual and potential adverse human rights impacts, business enterprises should first seek to prevent and mitigate those that are most severe or where delayed response would make them irremediable” (Guiding Principle 24).

Further reading

For further information and guidance see:

• UN Guiding Principles on Business and Human Rights, especially Guiding Principles 11 to 24, and Commentary.
• OHCHR, ‘The Corporate Responsibility to Respect: An Interpretative Guide’

Taken as a whole, business activities have the potential to impact a wide range of internationally recognised human rights. However, the human rights impacts of specific business enterprises depend on many different factors, including the industry and sector, legal and regulatory environment, contractual relationships, state of economic development (both locally and nationally), political and cultural factors. See further “How do business activities affect human rights?”(see above).

Examples of human rights that may adversely be impacted by business activities are included below (n.b. this is a non-exhaustive, illustrative list). Hover to view the legal sources of these rights:

• The right to life;
  
  • Universal Declaration of Human Rights (1948), Article 3
  • International Covenant on Civil and Political Rights (1966), Article 6
• The right to security of the person;
  
  • Universal Declaration of Human Rights (1948), Article 3
  • International Covenant on Civil and Political Rights (1966) Article 9
• The right to health (relevant in a wide range of contexts including environmental protection, workplace health and safety and consumer protection);
  
  • Universal Declaration of Human Rights (1948) Art 25.1
  • International Covenant on Economic, Social and Cultural Rights (1966) Art 12
  • See also International Health Conference. Constitution of the World Health Organization. (1946).
• The right to water;
  
  • International Covenant on Economic, Social and Cultural Rights (1966), Articles 11 and 12
  • See also United Nations General Assembly 64/292 (28th July 2010) UN Doc A/RES/64/292
• The rights of the child (n.b. this includes a prohibition on the worst forms of child labour);
  
  • Universal Declaration of Human Rights (1948) Article 25.2
  • UN General Assembly, Convention on the Rights of the Child, 20 November 1989.
  • ILO Convention No. 182 on the Worse Forms of Child Labour (1999)
• The rights of migrant workers;
  
  • UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990)
  • ILO Convention No. 97 on Migration for Employment (1949)
  • ILO Convention No. 143 on Migrant Workers (Supplementary Provisions) (1975)
• Rights of non-discrimination (e.g. relevant in the context of employment, but also in relation to supply of goods and services);
  
  • Universal Declaration of Human Rights (1948) Articles 7 and 23.2
  • International Covenant on Economic, Social and Cultural Rights, Article 2;
  • International Covenant on Civil and Political Rights, Article 2:1.
  • UN Convention on the Elimination of All Forms of Discrimination Against Women (1979)
  • International Convention on the Elimination of All Forms of Racial Discrimination (1965)
• Rights to just and favourable conditions of work;
  
  • Universal Declaration of Human Rights (1948), Articles 23 and 24
  • International Covenant on Economic, Social and Cultural Rights (1966) Article 7
  • See also the many conventions and recommendations adopted by the ILO
• The rights of freedom of association and collecting bargaining;
  
  • Universal Declaration of Human Rights (1948) Article 23.4
  • ILO Convention No. 87 Concerning Freedom of Association and Protection of the Right to Organise (1948)
  • ILO Convention No. 98 Concerning Application of the Principles of the Right to Organise and to Bargain Collectively (1949)
  • ILO Declaration on Fundamental Principles and Rights at Work (1998)
• The right to privacy (e.g. relevant in the employment context, but also with respect to other key stakeholders, such as customers);
  
  • Universal Declaration of Human Rights (1948) Article 12
  • International Covenant on Civil and Political Rights (1966) Article 17
• Rights not to be subject to slavery, slavery-like practices or forced labour;
  • Universal Declaration of Human Rights (1948) Article 4
  • League of Nations Convention to Suppress the Slave Trade and Slavery (1926)
  • Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1957)
  • ILO Convention No. 29 Concerning Forced or Compulsory Labour (1930)
  • ILO Convention No. 105 Concerning the Abolition of Forced Labour (1957)
  • Protocol to ILO Convention No. 105 Concerning the Abolition of Forced Labour (2014)
• The right to self-determination (e.g. may be relevant in the context of land acquisition for major projects); and
  
  • United Nations, Charter of the United Nations, (1945)
  • Universal Declaration of Human Rights (1948) Article 15
  • International Covenant on Civil and Political Rights (1966) Article 1
  • International Covenant on Economic, Social and Cultural Rights (1966) Article 1
• The rights of indigenous peoples (e.g. again, these may be relevant in the context of land acquisition for major projects).
  
  • UN Declaration on the Rights of Indigenous Peoples (2007)
  • International Covenant on Economic, Social and Cultural Rights (1966) Article 1
  • International Covenant on Civil and Political Rights (1966) Article 1

Further reading

See Shift, ‘UN Guiding Principles Reporting Framework’ click here

The UN Guiding Principles on Business and Human Rights are regarded as the global authoritative standard on business and human rights. They are increasingly reflected in public policy, in law and regulation, in commercial agreements, in international standards that influence business behaviour, in the advocacy of civil society organisations, and in the policies and processes of governments worldwide.

The UN Guiding Principles on Business and Human Rights were unanimously endorsed by the UN Human Rights Council in June 2011, following six years of multi-stakeholder consultations, research and pilot projects.

The UN Guiding Principles on Business and Human Rights are based on three distinct but inter-connected “pillars”: The State Duty to Protect against human rights abuses; the Corporate Responsibility to Respect human rights; and the need for there to be Access to Remedy for victims of business-related human rights abuses.

The State Duty to Protect is a legal obligation, enshrined in international law.

The Corporate Responsibility to Respect is, in the words of the Commentary to the UN Guiding Principles, “a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.” (UN Guiding Principles on Business and Human Rights, Guiding Principle 11, Commentary).

Thus, the Corporate Responsibility to Respect is conceptually distinct from legal liability, although, as discussed in this handbook, there will be occasions when a failure by a business enterprise to meet this responsibility may give rise to legal risk.

The Commentary to the UN Guiding Principles on Business and Human Rights also states that:

“Business enterprises may undertake other commitments or activities to support and promote human rights, which may contribute to the enjoyment of rights. But this does not offset a failure to respect human rights throughout their operations.” (see UN Guiding Principles on Business and Human Rights, Guiding Principle 11, Commentary, emphasis added).

“The responsibility to respect human rights requires that business enterprises:

(a)  Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;

(b)  Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”

(UN Guiding Principles on Business and Human Rights, Guiding Principle 13).

Access to Remedy is a fundamental tenet of international human rights law.  States and business enterprises have a role in ensuring access to remedy, as part of their own respective legal duties and responsibilities.

The UN Guiding Principles (UNGPs) are relevant to the work of business lawyers in two ways:

• First, because law firms are business enterprises and, as such, come within the ambit of the provisions of the UN Guiding Principles relating to the “corporate responsibility to respect” human rights. (see previous section for more details)

  However, as noted in the IBA Practical Guide for Business Lawyers:

  “… since law firms are unique professional organisations whose lawyers render legal services, care must be taken not to inhibit the exercise of their professional responsibilities. Whether they work in law firms, corporate law departments, or elsewhere, lawyers have specific and legally binding professional responsibilities and obligations, including the duty of independence. The UNGPs do not abridge this duty, which includes the duty to decide, within the limits of the law, how to act in their client’s best interests, independently of expectations and pressures that are external to the lawyer–client relationship, subject of course to adherence by the lawyers with their professional and legal responsibilities.  Compliance with the law, including the right of access to such independent legal counsel, are critical to ensure the attainment of broader public interest objectives of the rule of law and the administration of justice, and to enable companies to respect human rights. The UNGPs were not intended to override or supplement legal professional codes of conduct, given the critical role that lawyers play in upholding the rule of law and supporting the administration of justice. Nor were they intended to create extrinsic expectations for a lawyer’s conduct, which are grounded in the scope of services for which the lawyer has retained the client, the relevant laws, and professional standards that govern a lawyer’s conduct”

  For further information please see the IBA Practical Guide for Business Lawyers

• Second, because whether a lawyer works as external legal counsel or as an in-house lawyer, he or she is a key advisor to his or her corporate clients (and also to those individuals who have relationships with business enterprises).

  The UN Guiding Principles state that, as well as avoiding causing or contributing to adverse human rights impacts through their own activities, business enterprises should “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”  (Guiding Principle 13).

  The reference to “business enterprises” in this Guiding Principle includes professional advisors such as business lawyers.

  As noted above, it must be recognised that legal practitioners are subject to their own specific and legally binding professional responsibilities and obligations.

  Nevertheless, the way in which lawyers discharge their professional obligations – the way they identify, understand, evaluate and communicate human rights issues associated with the advantages and disadvantages of different potential courses of action – can influence human rights outcomes.

  While the client is responsible for taking specific decisions or steps (and, hence, legal responsibility for such outcomes), the UN Guiding Principles on Business and Human Rights maintain that lawyers nevertheless have certain social responsibilities as business actors.  These responsibilities, subject to applicable professional responsibilities and obligations, include the appropriate use of “leverage” to prevent or mitigate adverse business-related human rights impacts.

Further note: The UN Guiding Principles on Business and Human Rights have been designed as a framework of high level guiding principles, the application of which will be dependant on the particular facts and circumstances of any given case, including the operating context and the nature and characteristics of the business enterprises involved.  As you will see from the discussion exercises in the chapters that follow, the analysis of corporate responsibilities with respect to human rights may differ, if particular facts are changed or supplemented.

For useful resources on the inter-relationship between the UN Guiding Principles on Business and Human Rights and the professional responsibilities of lawyers, see:

• IBA Practical Guide on Business and Human Rights for Business Lawyers
• IBA 2011 International Principles on Conduct for the Legal Profession

As a lawyer you will be familiar with the professional standards and regulatory requirements that apply to you, in that capacity, in your jurisdiction.  In addition, your employer will have developed policies designed to ensure compliance with the law concerning the manner in which the practice is run, and to help identify and address other potential sources of legal, commercial and/or reputational risk to your firm.

In order to ensure that they meet their own responsibility to respect human rights, law firms are increasingly developing policies on (or extending existing policies to cover) business and human rights issues, which cover matters such as:

• client due diligence prior to accepting instructions (and/or during the course of the client engagement);
• circumstances in which it may be appropriate to cease to act and the procedures that must be followed in that event;
• the appropriate use of leverage in respect of client activities;
• client and project debriefing and measures to ensure that lessons from past experiences are learned, shared and acted upon; and
• where to go for help and advice.

You should ensure that you are thoroughly familiar with all of these policies and procedures.  As you work through this handbook you may wish to reflect on whether such policies and procedures could be improved and, if so, how.

As a lawyer working “in-house” for a business enterprise you will be familiar with the professional standards and regulatory requirements that apply to you, in that capacity, in your jurisdiction.

As an in-house lawyer you have an important role to play (along with others in your business) in helping to shape the policies, procedures, strategies and actions that, individually and/or together, help your employer to meet its responsibility to respect human rights.

The UN Guiding Principles on Business and Human Rights stress the importance of ensuring that corporate strategies relating to human rights issues are not siloed within specific functions (e.g. legal, PR, or corporate social responsibility) but are communicated and embedded across the organisation.

As an in-house lawyer, you may be responsible for a wide range of legal issues and business duties, bringing you into contact with many different managerial functions, and giving you a unique perspective on organisational matters. If so, you will be well placed to raise awareness about human rights issues and risks within your organisation, bearing in mind that the UN Guiding Principles on Business and Human Rights call for both proactive steps on the part of business enterprises to identify and mitigate human rights risks and reactive responses to address and remedy actual human rights impacts.

In a transactional context, you may be leading the negotiating team, or providing critical input. In either case, you will need to understand potential human rights issues so that you can bring them to the attention of the relevant decision-maker(s). You are also likely to have a critical role with respect to the post-transaction integration or implementation, which may require you to develop and implement forward-looking strategies for the identification and management of human rights risks, and the remedying of any actual adverse human rights impacts.

You will find further practical suggestions of different ways in which you can contribute positively, as an in-house lawyer, to your employer’s fulfilment of its corporate responsibility to respect human rights in the chapters that follow.

Further reading

OHCHR, ‘The Corporate Responsibility to Respect: An Interpretative Guide’

The IBA Legal Policy and Research Unit wishes to extend its sincere thanks to Dr Jennifer Zerk, who is the main author of this handbook, to Rocio Paniagua, Senior Legal Advisor at the IBA Legal Policy and Research Unit and Project lead, and to Jane Ellis, Director at the Legal Policy and Research Unit and Project Sponsor.

The IBA Legal Policy and Research Unit also wishes to thank the following members of the advisory group, M&A focus group and other experts for their continuous high-level contributions to the creation and development of this handbook:

The Advisory Group

Elodie Aba Business and Human Rights Resource Centre, Interim Corporate Legal Accountability Project Manager

Nicole Bigby Berwin Leighton Paisner, Partner, Director of RiskChair of the IBA Regulation of Lawyers ‘Compliance Committee until 31st December 2016

Christine Chow Hermes Investment Management, Associate Director

Daniel D’Ambrosio DLA Piper (IBA group member), Associate

Mihir Kanade United Nations mandated University for Peace, Head of the Department of International Law & Director of Human Right Centre

Sangwoo Kim Corporate Affairs Europe Samsung Electronics, President

Sternford Moyo Scanien & Holderness, Senior Partner, Chair of the IBA African Regional Forum until 31st December 2016

Andrea Saldarriaga London School of Economics, Project Lead Investment and Human Rights

Abigail McGregor Norton Rose Fulbright (IBA group member), Partner

Paul Redmond Sydney City Campus, Professor, University of Technology

Vanessa Zimmerman Business and Human Rights specialist, IBA Corporate Social Responsibility Committee Corporate Counsel Forum Liaison Officer

The M&A focus group

Craig Cleaver Slaughter & May, Partner Co-Chair IBA M&A Law Committee

Sergio Sánchez Solé J&A Garrigues SLP, Partner Co-Chair M&A Law Committee

Guy Harles Arendt & Medernach SA, Partner Senior Vice Chair M&A Law Committee

Other contributors

Rae Lindsay Clifford Chance, Partner Vice-Chair IBA Corporate Social Responsibility Committee

John Sherman Shift, Secretary, General Counsel and Senior Advisor

Igor Poroger Sodexo, Legal Counsel

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For more information, questions or inquiries, please do not hesitate to contact the Legal Policy and Research Unit of the International Bar Association by e-mailing LPRU@int-bar.org