The following is a guest post from John G. Ruggie, Chair of Shift, Berthold Beitz Professor in Human Rights and International Affairs at the Kennedy School of Government, and Affiliated Professor in International Legal Studies at Harvard Law School.
Several thousand lawyers, in formal business attire and carrying briefcases, descended upon Boston’s Copley Square for the annual conference of the International Bar Association last week. In the air was talk about how the UN Guiding Principles on Business and Human Rights, which I authored—unanimously endorsed by the UN Human Rights Council in 2011—apply to law firms as business enterprises, with their own responsibility to respect human rights.
This was the subject of my presentation at a dinner on Thursday evening across the river in Cambridge, jointly organized by Dan Bross of Microsoft and John Sherman of Shift – the non-profit, independent center of expertise on business and human rights started by former members of my team, whose board I chair. The dinner, hosted by Microsoft, was attended by a mix of in-house corporate legal officers, representatives of several national bar associations, outside legal counsel and other legal organizations.
In my remarks, I noted that I had invited corporate lawyers into the business and human rights debate after reading a 2009 client memo from Marty Lipton at Wachtel Lipton, one of the world’s preeminent corporate lawyers. The memo expressed deep concern that the UN “Protect, Respect, and Remedy” Framework, which I had developed as the Special Representative of the UN Secretary-General for Business and Human Rights, would impose inappropriate duties on directors of corporate boards.
I realized then that corporate lawyers had large influence on their business clients, and that they would be essential in spreading wider understanding about the work I was doing. So I began a process of engagement with the corporate legal community, who became among the most consequential of the new actors that I engaged with. The International Bar Association (IBA) marshaled its global network of international lawyers to help create BASESwiki, a website of user-generated information about non-judicial grievance mechanisms (now hosted by www.accessfacility.org). Twenty leading corporate law firms contributed their time on a pro bono basis to the mandate’s Corporate Law Tools Project, which examined the corporate and securities laws of nearly forty jurisdictions to determine the extent to which those laws facilitated or obstructed corporate respect for human rights—the second pillar of the UN Framework.
The engagement paid off. Marty Lipton subsequently issued another client letter encouraging businesses to follow the UN Guiding Principles (which implement the “Protect, Respect, and Remedy” Framework). He characterized the Guiding Principles as outlining a balanced and prudent process for corporations to manage their human rights risks. And in 2011, the American Bar Association formally endorsed the UN Guiding Principles.
Subsequently, I addressed, in an addendum to the Guiding Principles, the role of lawyers who negotiate long-term investment agreements with the governments of very poor but resource rich countries. I pointed out that if the company’s negotiators use their leverage to extract the most advantageous terms possible, regardless of the human rights impacts—such as freezing the state’s ability to regulate changing human rights impacts—this can have serious adverse consequences on affected individuals and communities in those countries. This may increase the likelihood of community conflict—expressed in strikes, blockades and violence—which can also threaten the investment’s profitability and long-term viability.
This generated a rich discussion at the dinner regarding the responsibility of law firms under the UN Guiding Principles to go beyond advising businesses on what is strictly legal, to what is acceptable – and now expected – from a human rights perspective. Senior in-house counsel from several companies that are serious about implementing the Guiding Principles unanimously expressed the strong expectation that their preferred outside counsel should become partners in helping them achieve the company’s strategic goals—including the management of human rights risks—by identifying human rights risks that relate to the company’s legal transactions.
So we’ve come a long way in just a few years. Where previously corporate counsel expressed deep skepticism about the implications of the UN Guiding Principles, corporate in-house legal leaders are now challenging their outside counsel to proactively advise them on human rights risks.
So the times change, and in this case, it’s for the better.