In-house lawyers should conduct human
rights assessments that identify potential risks in their
organisation's supply chain – companies that don't do
this could find their reputations destroyed
Traditionally, businesses have believed the issue of human
rights is not their responsibility, but opinion is changing.
In-house lawyers and corporate counsel see the need to change their
mindset and learn about new norms and guidelines that define their
organisation's human rights responsibilities. We have moved
from the sphere of corporate social responsibility to the reality
of responsible business conduct – it's not enough to do
good voluntarily, businesses now must do no harm to
stakeholders.
The reason is that there is now an international consensus around
the United Nations (UN) Guiding Principles for Business and Human
Rights, which outline how states and businesses should implement
the UN "Protect, Respect and Remedy" framework to better
manage human rights challenges. The principles, endorsed by the UN
Human Rights Council in 2011, are based on three pillars: the state
duty to protect against human rights abuses by third parties,
including business, through appropriate policies, regulation and
adjudication; the corporate responsibility to respect human rights,
which means avoiding infringing on the rights of others and to
address adverse impacts that occur; and greater access by victims
to effective remedy, both judicial and non-judicial.
Businesses in many sectors run the risk of coming into conflict
with human rights standards and norms. For example, in the mining,
infrastructure and oil and gas sectors, there are land issues
(including the rights of indigenous people) that could lead to
infringements of human rights. In the construction industry, there
could be issues related to dire working conditions. Meanwhile,
businesses producing garments and footwear could face
labour-related human rights problems – one of the most high
profile examples of this was the Rana Plaza clothing factory
collapse in Bangladesh in 2013, which resulted in the deaths of
1,129 people, with around 2,500 more suffering injuries. Workers in
the factory made clothes for international retail chains, including
the Spanish company Mango.
The response of governments around the world to the implementation
of the UN guiding principles has been patchy. According to the UN,
ten nations have produced a national action plan on business and
human rights - they are: Spain, the UK, the Netherlands, Italy,
Denmark, Finland, Lithuania, Sweden, Norway and Colombia.
Meanwhile, Portugal, Germany and the USA are among 19 other
countries that "are in the process of developing a national
action plan or have committed to doing one", the UN
says.
But in-house lawyers have to take the lead on this issue. The IBA
has issued guidance on human rights for business lawyers that can
be used as a foundation for more tailored advice and guidance by
in-house lawyers. Generally, among in-house lawyers there is a lack
of awareness of the importance of this issue, but they need to
ideally work with international human rights experts to explore the
risks they face. If in-house lawyers wish to be considered as
"trusted advisers" to their organisation's
'C-Suites' and boards of directors, they need to report on
human rights. For example, UK high street chain Marks & Spencer
produced its first human rights report in 2016 outlining its
approach to "recognising, respecting and advancing human
rights throughout our business operations". However, despite
Marks & Spencer producing a human rights report, an
investigation by BBC TV's Panorama found Syrian refugee
children in Turkish factories making clothes for Marks &
Spencer. The programme also found adult refugees working illegally
on jeans for Spanish chains Zara and Mango.
The consequences for corporations tagged with this problem can be
severe. For example, mining companies in Latin America have had
problems because they didn't do proper human rights assessments
– in some instances, companies had to stop operations for
long periods of time, sometimes spanning years.
When conducting a human rights assessment, and specifically when
mapping your risk, it's worth looking at what is done by other
enterprises in the same field and allying with them. It's also
important to publicise what you are doing in view of increasing
reporting obligations. Conducting human rights assessments should
motivate companies to be part of a race to the top. It will also
enthuse employees. Such assessments are in your company's best
interests as they can improve brand value and make your company
more sustainable.
Elise Groulx Diggs is an international human rights lawyer based in Washington D.C. She is an Associate Tenant at Doughty Street Chambers in London and of counsel at Alkyne Avocats in Paris and Geni & Kebe in Dakar, Sénégal. She is also of counsel at Endo et Associés in Montréal, Québec, Canada
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
