The ABA's commitment to develop and promote business and human rights within the legal profession: what this means for lawyers.

Author:Lewis, Corinne
Position:I. Abstract through IV. Challenges for the Legal Profession A. The Frameworks 2. Other Frameworks, p. 1-25 - Author abstract

    In June 2015, the American Bar Association (ABA) took a notable step that should foster greater understanding of business and human rights by lawyers and lead to lawyers more actively assisting businesses to respect human rights. The ABA, the Law Society of England and Wales, (1) and other bar associations and legal organizations, adopted the "Joint Declaration of Commitment on the Development and Promotion of the Field of Business and Human Rights within the Legal Profession" ("Joint Declaration"). (2) The Joint Declaration recognizes the "integral role of lawyers in promoting and defending human rights and the rule of law in all contexts." (3) Pursuant to the terms of the Declaration, the ABA and other signatories commit to undertake a number of activities individually and jointly: i) "promoting the realization of human rights in the business context"; ii) "educating lawyers about human rights in the business context"; and iii) "developing and implementing further policy initiatives" in the area. (4)

    This is not the first time the ABA has undertaken action relating to business and human rights. In a 2012 resolution, the ABA acknowledged the importance of the area (5) through its endorsement of two key documents that articulate the responsibility of businesses to respect human rights: the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the Organisation for Economic Cooperation and Development Guidelines for Multinational Enterprises (OECD Guidelines), (6) both of which are further discussed in subsequent sections. The 2012 resolution "urges governments, the private sector and the legal community to integrate into their respective operations and practices the United Nations Guiding Principles and the OECD Guidelines" (7) but does not provide any guidance on how they should do so. Also, in 2015 the ABA sent a letter to businesses encouraging them to put into place policies on labor trafficking and child labor within their own business and with respect to their supply chains that are consistent with the Model Principles of the ABA Model Business and Supplier Policies on Labor Trafficking and Child Labor. (8) The lack of a standard code of conduct for businesses regarding labor trafficking and child labor and the staggering number of child laborers and persons subject to forced labor (9) led to the resolution, which provides principles that businesses and their suppliers can adopt.

    The ABA's endorsement of the Joint Declaration signals that it is entering a new phase with respect to the business and human rights area. The clear intention of the ABA, one of the largest voluntary professional membership organizations in the world with nearly 400,000 members, (10) is to reinforce and strengthen lawyers' role in supporting and assisting businesses to respect human rights and to further lawyers' contribution to the development and elaboration of the business and human rights field.

    Lawyers, no matter what their area of legal practice, need to develop a greater understanding of the principles and processes related to business and human rights. For lawyers with business clients, business and human rights principles will be directly applicable to their client matters. This is not only true with respect to clients that are large multinational companies (MNCs) in high risk sectors, such as extractive companies and those with manufacturing facilities in developing countries, but also pertains to business clients regardless of their sector and size. Small family run businesses, fledgling internet companies, or banks lending money for business projects can all impact human rights through their business activities. Even lawyers with non-business clients will reap benefits from an enhanced understanding of this new area. For example, lawyers representing persons harmed by a manufacturing facility's pollution will find human rights-based arguments relevant to their cases. Also, those working within governmental institutions, in areas ranging from procurement to overseas development, may be called upon to assess companies' respect for human rights to determine whether the entity presents any risks to human rights that might render the government complicit in such infringements. Moreover, numerous human rights issues, such as labor standards in supply chains, treatment of migrant workers, and risks to the health of local communities, affect lawyers' business clients in a wide array of sectors.

    Although there is still a great deal that needs to be done to enhance the understanding, awareness and implementation of a human rights sensitive approach by businesses, as this occurs, lawyers will increasingly be called upon to counsel them on human rights. However, most business lawyers, trained in the practice of private law, are unsure not only of the framework for this new area of business and human rights but also what human rights are. Lawyers also need to become more aware and receive guidance on the practical difficulties that the provision of advice to clients on business and human rights presents within the lawyer-client relationship.

    This article, therefore, aims to introduce lawyers to the business and human rights area and to foreshadow some of the issues that will arise as the ABA, other bar associations and law societies take steps to implement the Joint Declaration. Initially, a brief overview of the development of the business and human rights area is provided, with a particular emphasis on the issue of voluntary versus non-voluntary standards for business conduct related to human rights. This is followed by consideration of three key areas that the ABA and other legal organizations will need to address to allow lawyers to properly understand, incorporate, and implement human rights considerations into their advice and representation of clients. These comprise: i) the framework(s) for business and human rights; ii) the nature of "human rights;" and iii) the practical challenges inherent in advising business clients on human rights. The article does not, however, address the issue of what law firms, as businesses themselves, should do to ensure that they respect human rights, although this topic merits further clarification. (11)

    The author hopes that this article will lead to greater understanding by lawyers of the business and human rights area and broader commitment within the legal community to assist businesses to respect human rights. In addition, this article is intended to highlight the need for further reflection, research, and discussion on the content of the...

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