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:IV. Challenges for the Legal Profession A. The Frameworks 3. An Approach to the Multiple Frameworks through V. Looking Forward, with footnotes, p. 25-52
 
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  1. An Approach to the Multiple Frameworks

    The above review of the UNGPs and other frameworks pro0ides a basis for a comparison of their relevance to the business and human rights area. The UNGPs, with the underlying "Protect, Respect and Remedy " Framework, provide a foundation for the business and human rights area with a focus on accountability of businesses and remedies for persons harmed. The U.N. Global Compact is almost a pure corporate social responsibility initiative, and ISO 26000 serves as internal guidance on social responsibility. However, the OECD Guidelines and the Tripartite Declaration cross-over from the corporate social responsibility area into that of business and human rights with the former's recommendations to businesses by States and the latter's adoption by the ILO.

    These various frameworks also have different purposes. The UNGPs set forth an overall framework and guidance for the business and human rights area that includes action by States, respect for human rights by businesses, and access to an effective remedy for persons and communities whose rights are negatively affect by businesses. The U.N. Global Compact is a call to businesses to align their strategies and operations with universal principles while ISO 26000 standards are for internal use by organizations, including businesses. The Tripartite Declaration and OECD Guidelines are geared toward economic growth and social development, which are more in the nature of general development policies rather than respect for rights and ensuring access to remedies.

    Despite the differences among these frameworks, they all contain relevant principles and concepts to the business and human rights area, particularly the human rights that businesses should respect. However, in the absence of a single document that summarizes the guidelines and principles from the UNGPs and the four other frameworks, lawyers are obliged to read through these documents and synthesize their provisions in order to understand the human rights standards businesses are expected to meet and how businesses should implement these standards. This is a process that would be both time-consuming and unreasonably burdensome for lawyers.

    An approach to synthesize the UNGPs and the other frameworks could utilize the UNGPs (108) as a base and then incorporate the business-oriented ISO 26000 and U.N. Global Compact as well as the recommendations to both government and businesses of the OECD Guidelines and ILO Declaration. This is particularly workable since ISO 26000 was drafted and the OECD Guidelines were revised in 20ii to reflect the content of the UNGPs. (109) In addition, the general human rights, including laborprinciples, of the U.N. Global Compact were incorporated into the UNGPs. (110)

    In addition to weaving these documents into a foundation built on the UNGPs, the unique elements that each of the documents contains merit further consideration as the field of business and human rights continues to develop. The OECD Guidelines establish a remedial mechanism, the National Contact Points, while the U.N. Global Compact provides for the obligation of businesses not only to respect but also to "support" human rights. (111) The ISO standard might also provide a basis for drafting similar guidance to law firms. Many of these documents also contain sections on the environment and corruption, which topics, as will be discussed below, are increasingly linked to human rights standards; therefore, their inclusion in the business and human rights framework merits further discussion.

    Consideration should also be given to incorporating human rights standards more explicitly, specifically those related to human rights other than labor rights, which already receive significant attention in several of the relevant frameworks. Documents, instruments and standards on distinct issues and sectors would serve as valuable resources. Since the endorsement of the UNGPs by the U.N. Human Rights Council in 2011, there have been numerous guides and instruments issued that focus on the human rights impacts of businesses. A few examples highlight the potential contribution that these could make to the development of the business and human rights framework. The Children's Rights and Business Principles, which were developed jointly by UNICEF, the U.N. Global Compact, and Save the Children, provide principles to guide businesses in their actions so as to minimize their negative impacts on children and maximize their positive impacts. (112) The OECD Due Diligence Guidance for Responsible Supply Chains from Conflict-Affected and High Risk Areas, articulates due diligence and reporting recommendations for businesses potentially sourcing minerals or metals from conflict-affected and high-risk areas. (113) The United Nations Principles for Responsible Investing are guidelines for incorporating environmental, social, and governance issues into investment practices. (114)

    Thus, as the ABA and other bar associations and legal organizations promote the realization of and educate lawyers about human rights in the business context, they will want to provide lawyers with a document that synthesizes the principles and concepts of the relevant frameworks in the business and human rights area and will serve as a foundation for further development in this area. This foundation should be a solid one into which various other relevant initiatives can be integrated and upon which further developments can be grafted in order to facilitate lawyers' ability to advise their clients on business and human rights.

    1. Human Rights Standards

    The expected standard of conduct for businesses, as stated in the UNGPs and reflected in the four frameworks reviewed above, is that businesses should respect human rights. Moreover, the human rights that businesses can impact include "virtually the entire spectrum of internationally recognized human rights," as provided in the UNGPs. (115) Thus, as lawyers attempt to incorporate human rights into their work on behalf of their business clients, one of the initial challenges they will encounter is to determine where to find internationally recognized human rights. The UNGPs provide a valuable starting point, but lawyers need to understand the range of standards as well as the variety of sources of international human rights law. They also will need to comprehend the nature of such rights. Accordingly, the specific human rights instruments cited by the UNGPs are examined below, followed by an overview of the three primary sources of international human rights law and the nature of human rights standards.

  2. Instruments Referred to in the UNGPs

    The UNGPs provide that "human rights refers to internationally recognized human rights--understood, at a minimum, as those expressed in the International Bill of Human Rights (IBHR) and the principles concerning fundamental rights set out in the International Labour Organization's Declaration on Fundamental Principles and Rights at Work." (116) The IBHR is composed of three important instruments; (117) chief among them is the Universal Declaration of Human Rights. Adopted by the U.N. General Assembly in 1948, it is considered to be the most 115 116 117 immediate commencement of work on two complementary covenants to effectuate the purpose of the Declaration).

    Important and far-reaching U.N. declaration and the one that established the direction for the UN's work in the human rights area. (118) The other two international instruments that comprise the IBHR are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted by the U.N. General Assembly in 1966. (119)

    Even at the time of the drafting of the Universal Declaration, there was general agreement among States that the rights contained in the Declaration should be expressed in the form of hard law for States through a treaty. The only question was whether such rights should be contained in a single or multiple instruments given the different views on the attainment of such rights. The western countries argued that civil and political rights had to be strictly respected, while economic and social rights should be progressively achieved. (120) This view prevailed and the civil and political rights, such as freedom of thought, conscience, religion, and expression, many of which are found in the first ten amendments to the U.S. Constitution, were placed in one instrument, the ICCPR. (121) The economic, social, and cultural rights that are not reflected in the U.S. Constitution, such as the right to work, health, education, cultural life, and protection of the family, are contained in the ICESCR. (122)

    The other essential set of rights referenced in principle 12 of the UNGPs are those relating to workers, found in the ILO's Declaration on Fundamental Principles and Rights at Work. Adopted in 1998, the declaration contains four labor principles: i) freedom of association and the effective recognition of the right to collective bargaining; ii) elimination of all forms of forced or compulsory labor; iii) effective abolition of child labor; and iv) elimination of discrimination in respect of employment and occupation. (123) These principles are detailed in eight core ILO conventions. (124)

  3. Identifying the Sources of International Human Rights Law

    The UNGPs' establishment of a minimum understanding of international human rights allows lawyers to focus on many of the key international human rights, but lawyers should be aware in their advice to businesses that the potential scope of human rights standards applicable to businesses is much more extensive. Thus, lawyers will need to look beyond the IBHR and ILO Declaration on Fundamental Principles and Rights at Work to obtain a fuller understanding of human rights.

    The Office of the High Commissioner for Human Rights, the U.N. agency that works to...

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