Draft IBA guidance on human rights poses many questions for lawyers.
The topic of business and human rights was on the agenda of the recent Global Law Summit. The president of the International Bar Association (IBA) was in the chair of that particular panel, which is not surprising since the IBA is spearheading a major initiative on the topic for bars and law firms. It is holding a consultation, which is open until 15 March, on two separate draft works of IBA guidance: ‘Business and Human Rights Guidance for Bar Associations’ and ‘Guidance for Business Lawyers on the UN Guiding Principles on Business and Human Rights’.
The IBA guidance closely follows the UN Guiding Principles on Business and Human Rights. The UN Principles, adopted in 2011, are high-level, and the IBA guidance does not drill down much into the important detail.
The IBA guidance is strong on procedural suggestions, much of it incorporated from the equal opportunities industry (which involves similar issues of bedding down procedures on political matters), but it frequently shies away from resolving the truly problematic legal questions. So, one of the first doubts is whether it is useful for the IBA to publish something where so many of the difficult questions remain unresolved. Basing myself in part on the response which my own organisation, the Council of Bars and Law Societies of Europe (CCBE), will shortly submit to the IBA, I will highlight just one aspect of a problematic issue.
Principle 11 of the UN Principles says: ‘11. Business enterprises should respect human rights.’ That is of course extremely laudable, and is clearly a core aim of the Principles. But what does it mean? The Principles say that ‘This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’
That is still so general that it does not take us much further. The IBA draft guidance does not help, either.
Here are some questions which this wording raises for lawyers:
- Which human rights are covered by the principle of respecting human rights?
- Is there an exhaustive list of human rights instruments intended to be covered?
- What should a lawyer do if there is a conflict between human rights instruments?
- What if the same general instrument has been interpreted differently in different countries?
- What does it mean to respect human rights when the role of lawyers is to advise on respecting laws (which may not always cover the human rights in question)?
- What is the impact on the responsibility of lawyers – whether legal or ethical – to their clients if they advise on human rights rather than on the law?
- Is there a distinction between advising clients about the existence of human rights standards which go beyond the legal requirement, and advising clients that they must comply with those standards which go further than the law?
- And, raising a more general issue, would it not be better to have a specific human rights instrument dealing with the responsibility of businesses, rather than asking businesses to respect all possible human rights?
It may be better to have a deeper discussion within the IBA, so that more detailed guidance can be given on these and other questions. And there are other questions. For instance, the section on the impact on lawyers’ professional codes of ethics states: ‘The codes of a number of bar associations are already strongly aligned with the Guiding Principles, although it is possible that there will be tensions and dilemmas arising from their application in practice (as discussed in the Lawyers Guide).
‘Therefore, individual bar associations may wish to consider whether, and the extent to which their own professional codes of conduct prevent, permit, encourage or require lawyers to take the risks of human rights impacts into account in their advice to business clients.’ And in the Lawyers Guide referred to: ‘Whether and to the extent to which such potential tensions restrict the ability of lawyers to help their clients respect human rights as practical matter is a subject for review by individual country bar associations.’
Thanks very much for the detailed assistance given.
The author of the UN Principles has himself said that they are ‘not a toolkit to be taken off the shelf’. Has the IBA treated them as such? Read the material yourself, and send them your comments.