The need for businesses to understand and act upon their human rights responsibilities is coming into sharp focus in Australia, writes Marina Kofman.
The legal profession is poised to play an important role in helping businesses achieve compliance with human rights obligations.
The main international instrument driving this important agenda is the United Nations Guiding Principles on Business and Human Rights (UNGPs).
The UNGPs were unanimously endorsed by the UN Human Rights Council on 16 June 2011. They consist of 31 principles and commentary that are based on three pillars, implementing the UN’s 'protect, respect and remedy' framework.
The UNGPs are grounded in recognition of a) states’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms; b) the role of business enterprises as specialised organs of society performing specialised functions, required to comply with all applicable laws and to respect human rights; and c) the need for rights and obligations to be matched to appropriate and effective remedies when breached.
Although not legally binding, the UNGPs are regarded as the global authoritative standard on business and human rights. They are increasingly reflected in public policy, law and regulation, the governance of private companies and in civil society discourse. Examples of their influence include legislative changes in the UK and EU mandating reporting by private companies on their human rights performance and the issuance of national action plans on business and human rights by 10 national governments.
The Global Compact Network Australia (GCNA) and the Department of Foreign Affairs and Trade conducted business roundtables around the country in May this year to consider the development of an Australian national action plan. They found general support for a national action plan among the business community. The GCNA has reported that the Australian government is now considering the possibility of undertaking a national baseline assessment and a national consultation process.
International Bar Association’s work
Soon after the adoption of the UNGPs, the International Bar Association (IBA) recognised the special role of the legal profession in this space.
In 2013 it formed the IBA Business and Human Rights Working Group. In collaboration with the IBA Legal Policy and Research Unit (LPRU) and following extensive consultation, the working group has so far produced two important resources for the legal profession: the IBA Business and Human Rights Guidance for Bar Associations and the IBA Practical Guide on Business and Human Rights for Business Lawyers (practical guide), which was adopted by a resolution of the IBA Council on 28 May 2016. According to the IBA, the practical guide responds to growing recognition that the management of risks, including legal risks, means that lawyers need to take human rights into account in their practice of law.
The IBA lists a wide range of relevant practice areas impacted by the UNGPs, including corporate governance, reporting and disclosure, litigation and dispute resolution, contracts and agreements, land acquisition, development and use, resource exploration and extraction, labour and employment, tax, intellectual property, lobbying, bilateral treaty negotiation and arbitration.
The practical guide details firstly the key content of the UNGPs based on their framework of three core pillars; secondly, the relevance of the UNGPs to the advice provided by lawyers working in different roles, e.g. private practice or corporate counsel; and thirdly, the potential implications of the UNGPs for law firms as business entities that themselves have a responsibility to respect human rights.
A detailed reference annex to accompany the practical guide is being finalised for launch in November 2016.
IBA and Law Council of Australia initiative
The next phase of the IBA’s business and human rights project will be piloted in Australia, in partnership with the Law Council of Australia (LCA).
The LCA published a background paper in January 2016 entitled Business and Human Rights and the Australian Legal Profession, to assist Australian lawyers.
The IBA will develop a set of tools on business and human rights relevant to the legal profession, including a handbook, curriculum and face-to-face training programs.
The IBA LPRU and the LCA are currently conducting a training needs assessment in Australia to develop a profile of the potential learners and develop a program that is fit for purpose.
In a sign of the importance of turning the words of the UNGPs into action and of the key role of lawyers, a similar initiative developed by the Council of Europe was launched in the UK on 29 September.
The Council of Europe, with the assistance of specialist human rights barristers from Doughty Street Chambers in London, has developed a new online learning course on business and human rights through its Human Rights Education for Legal Professionals program.
With this growing momentum and the business demand for expertise, as a profession we must embrace the business and human rights perspective in Australia.
Australian businesses, with the help of the Australian legal profession, have the opportunity to understand and embrace their human rights responsibilities.
With legal professionals from around the world set to flock to Sydney for two of the largest events on the international legal calendar – the 2017 IBA Conference and the 2018 International Council for Commercial Arbitration Congress – this author is hopeful that Australian lawyers will be an example to the world.
Marina Kofman is an international lawyer, legal commentator and editor. She works for the Australian Centre for International Commercial Arbitration (ACICA) and is the vice-chair of the NSW Young Lawyers International Law Committee. She was an IBA LPRU intern in London from July to September 2016. The views expressed in this article are the author’s own, and do not in any way represent the views of the IBA, ACICA or NSW Young Lawyers.