Anna Kirkpatrick is a Senior Lawyer in the international arbitration and business and human rights teams at Clifford Chance in London.
Companies are beginning to take human rights seriously. What motivates each business to do so differs. Some are driven by governments who demand transparency and reporting on human rights and other non-financial issues. The French government has recently gone one step further, requiring certain large French companies to implement and report on due diligence measures taken on non-financial issues, including human rights. Regardless of regulatory pressures, supply chain pressure and scrutiny (not only by civil society, but also by peer companies) pushes companies to understand their impacts on human rights.
Inspired by global initiatives such as the Sustainable Development Goals, other businesses choose to positively embrace respect for human rights as a way of embedding responsible and sustainable approaches in their business practices.
These newest efforts to improve the interactions between business and people who are affected by their activities stem from an accepted global recognition that all businesses can (and repeatedly do) impact human rights adversely, and that businesses and governments each have their part to play in improving the status quo.
The backbone of this recognition is a non-binding instrument of soft law – the UN Guiding Principles on Business and Human Rights. These principles articulate what it means for businesses to respect human rights, how States should protect from violations of human rights connected with businesses, and how remedy should be provided when abuses do occur. They are accepted as the leading standard in this area.
Understanding the genesis of these principles, their place in international law and global governance initiatives, and knowing how the respect for human rights should be operationalised is essential for any lawyer who considers themselves to be a “business and human rights practitioner”.
But the legal implications of the business and agenda are, in practice, much wider. Not only does every business have the potential to impact human rights, every stage of a business’ operations can be involved in human rights impacts. Companies who want to avoid and mitigate human rights impacts need their legal counsel to be alive to the human rights implications of their business. This is perhaps even more true for those companies that are not yet aware of their impacts.
The business lawyer’s primary mandate may be to lead a client through an acquisition, advise on a tax restructuring, set up an investment fund, draw up a facility agreement or represent a client in litigation or arbitration; providing comprehensive advice also entails being able to identify any human rights issues that these transactions raise. Understanding whether human rights impacts pose legal or reputational risks and how to address both the impacts and the risks to the business should also be part of the toolkit of any lawyer who is committed to advising in a manner which respects rights.
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