Updated IBA Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape
In November 2023 the IBA Council approved the Updated Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape at the IBA Annual Conference in Paris. The document has now been published in a range of different languages, including English, Chinese, French, German, Japanese, Hindi, Portuguese and Spanish. On its importance and relevance to lawyers of today, Stéphane Brabant, Chair of the Core Drafting Group says: ‘The enactment of mandatory human rights and environmental due diligence requires all businesses, including law firms, to adapt. As soft law hardens and broadens, and ESG [environmental, social, governance] principles increasingly influence investment decisions, the Updated IBA Guidance helps lawyers contribute to the business respect for human rights.’
Why did the IBA release updated guidance for lawyers on business and human rights?
The UN Guiding Principles on Business and Human Rights (UNGPs) were unanimously endorsed by the UN Human Rights Council in 2011. In 2016 the IBA issued a Practical Guide for Business Lawyers on Business and Human Rights to assess the implications of the UNGPs and related standards for the legal profession. It noted the widespread uptake of the UNGPs, their growing importance to States, businesses and civil society, and their incorporation into law. It discussed the impact of the UNGPs on legal practice. It was accompanied by a Reference Annex that discussed these issues in further detail. This work falls within the scope of our wider IBA Gatekeepers Project.
In recognition of significant developments in hard law and public policy that have advanced uptake of the UNGPs since release of its initial guidance, in November 2023, the IBA published an ‘Updated IBA Guidance Note on Business and Human Rights’ (Updated Lawyers Guidance), to help lawyers across the world and from all practice areas to understand the increasing relevance of business human rights to legal practice.
This document was prepared by a small group of lawyers – listed at the end of the document – with support from the IBA Legal Policy & Research Unit (LPRU), and approved by a wider group of 30+ lawyers working on business and human rights and ethics. The core drafters thank the University of Lausanne for their invaluable support in bringing this document, and its translations, to life.
Stéphane Brabant, Chair of the Drafting Group, says of the Updated Guidance: ‘The enactment of mandatory human rights and environmental due diligence requires all businesses, including law firms, to adapt. As soft law hardens and broadens, and ESG principles increasingly influence investment decisions, the Updated IBA Guidance helps lawyers contribute to the business respect for human rights.’
The enactment of laws requiring due diligence and reporting with extraterritorial impact makes it essential for all lawyers, in many different disciplines, to help their business clients navigate the complexity of these new laws. The goal of the culturally diverse group of expert lawyers who prepared the Updated IBA Guidance was to demystify this new practice area and make it accessible to all lawyers worldwide.
John Sherman, a leading authority on the UNGPs and a key drafter of the 2016 and 2023 IBA Guidance documents, puts it this way: ‘What is soft law today may likely be hard law tomorrow. Therefore, corporate lawyers should not only be technical experts, who advise clients on what they legally can and cannot do. They should also be wise counsellors, who advise clients on alignment with soft law norms, such as the authoritative UN Guiding Principles on Business and Human Rights’.
Key aspects of the Updated Guidance
The UNGPs are a set of principles for States and businesses, built around three essential pillars: Protect, Respect, and Remedy.
- Pillar One: States have a legal duty to protect human rights and prevent abuses through appropriate policies and regulations.
- Pillar Two: Businesses must respect human rights in their operations and value chains, conducting human rights due diligence to identify and mitigate adverse impacts.
- Pillar Three: While states bear primary responsibility, businesses are expected to engage in or cooperate with processes to remedy human rights abuses.
While ‘soft law’ in and of themselves, the UNGPs are the acknowledged authoritative global standard for the roles of businesses and States vis-à-vis human rights, and are increasingly becoming ‘hard law’ as they become reflected or incorporated in statutes, regulations, and in supply contracts (among other things). One example is the mandatory human rights due diligence legislation now enacted by the EU, with sanctions for non-compliance (Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859). There are also a growing number of decisions of judicial and non-judicial bodies validating the duty of States to protect people and communities from business-related human rights abuses, and affirming the responsibility of businesses to respect human rights under the UNGPs (see Section 3 of the Updated Guidance).
The law is dynamic; what is considered merely unethical today may be unlawful tomorrow. This is particularly true in the business and human rights context. – para 25
Providing advice and services to help clients to meet their sustainable business interest in identifying, preventing, mitigating – and where appropriate, remedying their involvement in – human rights abuses, presents a major business opportunity for lawyers and law firms.
As companies increasingly see the identification and management of human rights risk as a key strategic goal, they expect their lawyers to act not only as technical legal experts, but also as wise counselors in identifying and advising on human rights impacts, based on the hard and soft law of human rights. This means that lawyers across all practice areas (from regulatory compliance, corporate governance and criminal law to environmental law, M&A, finance, contracts, antitrust and beyond), must be prepared to advise their clients on business human rights risks beyond technical compliance with existing law.
Read Section 4 of the Updated Guidance for examples of how human rights issues arise in different practice areas.
Advice grounded solely on technical compliance with existing law, without regard to the impact on human rights, may unfortunately obscure for clients the larger picture of business risks of involvement in human rights abuse. These may include such factors as reputational harm; lost opportunities; reduced access to capital markets; delay costs; high interest or more expensive debt; top management distraction; and reduced ability to hire and retain talent – para 26
The UNGPs do not impair the right to legal representation, or abridge lawyers’ professional responsibilities. Therefore, lawyers must advise clients on business human rights risks to themselves and society in a way that is consistent with these responsibilities, including the duty to act, within the limits of the law and professional standards, in their client’s best interests; and the duty to provide unbiased advice.
Read more in section 5 of the Updated Guidance.
The UNGPs are relevant for firms in multiple respects.
Capacity building
Advising clients on business human rights issues offers a major business opportunity for law firms. To capitalize on this opportunity, firms need to ensure they build capacity to advise on these issues, and this requires both developing specialist human rights expertise; and also ensuring that lawyers in all practice areas have access to resources to help them understand human rights issues that are relevant to their practice.
Value chain considerations
Firms form part of their clients’ value chains, and are being increasingly asked to demonstrate that they respect human rights and can identify and address the human rights risks that may be linked to their legal services, in order to comply with clients’ human rights due diligence policies and processes.
Law firms have a responsibility to respect human rights under the UNGPs
Secondly, law firms as businesses have their own responsibility to respect human rights under the UNGPs, and this has important implications for firms’ operations and approaches to client engagement.
Fims risk enabling human rights abuses by their clients in various ways, for example, through facilitating SLAPPs (Strategic Lawsuits Against Public Participation) or establishment of shell corporations that enable beneficial owners to hide their involvement in human rights abuses. While such conduct may be lawful in some jurisdictions, the UNGPs require firms to seek ways to honour human rights where there are conflicts between national laws and international human rights standards, and to treat risks of contributing to human rights abuses as a legal compliance issue (UNGP 23(b) and (c)).
As a result, law firms should assess their relationships with clients (both at the beginning of and throughout each client relationship) to determine whether their legal services could contribute to human rights abuses, and respond accordingly. This might mean choosing not to enter into, or ending, relationships with some clients. Helpful questions for firms to ask include:
In all contexts, business enterprises should:
(a) Comply with all applicable laws and respect internationally recognized human rights, wherever they operate;
(b) Seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements;
(c) Treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate.
- UNGP 23.
(a) Will the services and advice it renders likely cause or contribute to human rights abuse by the client in its operations or in its value chain?
(b) Who are the stakeholders who will be affected?
(c) What is the severity of the harm from the perspective of the stakeholder?
(d) What is the likelihood of potential impacts based on the context of the client’s operations, value chain, management system and business model?
(e) What is the connection between the nature of the lawyer’s advice and services and the likely harm (i.e., will the advice or services cause, contribute, or merely be linked to the harm), and similarly, what is the connection between the client’s conduct and the likely harm?
(f) What steps can the firm reasonably take to prevent or mitigate such harm?
(g) Is the likely harm so egregious and persistent that the firm should consider not undertaking the representation?
Access the Updated IBA Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape
The UNGPs are a living document, and their impact on soft and hard law norms continues to evolve. Lawyers and firms must keep pace, in order to capitalise on the opportunities that this important area of law presents.
Access the official English version of the Updated Lawyers Guidance, and its translations into a number of languages below. Please note that translations have been freely provided by volunteers, therefore are not certified versions of the original English translation.
If you would like to assist in translating this guidance document into another language, or if you have questions generally, contact: LPRU@int-bar.org
In September 2024, the IBA Council adopted the Second Edition of the IBA Business and Human Rights Guidance for Bar Associations. This updated guidance for bar associations complements the Updated Lawyers Guidance. Read it here
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