Surya Deva Member, UN Working Group on Business and Human Rights Business and Human Rights: How should lawyers respond to the new lingua franca? A4ID Training, New Delhi 16-17 September 2016 Surya Deva Member, UN Working Group on Business and Human Rights © Surya Deva

Outline UN Engagement with the Business and Human Rights (BHR) Agenda 2) Guiding Principles on Business and Human Rights: The New Lingua Franca? Work of the UN Working Group on BHR 4) International Bar Association’s Practical Guide © Surya Deva

1. UN Engagement with the BHR Agenda The UN has been engaged with the impact of business on human rights since the early 1970s It possible to divide this engagement in four broad phases – each phase had a distinct ‘focal point’ © Surya Deva

UN Engagement Continued ... 1970s-early1990s Rights vs. Responsibilities (TNCs Code) 1998-2004 Voluntary vs. Binding (GC / Draft Norms) 2005-2011 Principled Pragmatism (UNGPs) 2014- Cleavage between UNGPs and Treaty © Surya Deva

2. UNGPs: The New Lingua Franca? The UN Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights (UNGPs) in June 2011 The first set of authoritative global standards Developed after extensive consultations with all stakeholders during 2005-2011 © Surya Deva

Organised around Three Pillars: UNGPs Continued ... The UNGPs apply to all business enterprises and covers all human rights Organised around Three Pillars: 1) State duty to protect human rights 2) Business responsibility to respect human rights 3) Access to effective remedy © Surya Deva

State duty to protect, e.g.,: UNGPs Continued ... State duty to protect, e.g.,: Taking steps to prevent, investigate, punish and redress abuses by corporations [Principle 1] Setting out expectations from companies, including by extraterritorial laws [Principle 2] Creating an environment conducive to business respect for human rights [Principle 3] Special care in conflict-affected areas [Principle 7] Ensuring policy coherence at domestic and international levels [Principles 8-10] © Surya Deva

Business responsibility to respect, e.g.,: UNGPs Continued ... Business responsibility to respect, e.g.,: Avoid infringing on the human rights & address adverse human rights impacts [Principle 11] Declaring a policy commitment to respect human rights; conduct due diligence; and put in place processes to remedy adverse human rights impacts [Principles 15-22] Human Rights Due diligence (HRDD) is the key process that companies should adopt to comply with their responsibility to respect human rights © Surya Deva

UNGPs Continued ... Various redress mechanisms as part of the access to remedy pillar, e.g.,: State-based judicial mechanisms [Principle 26] State-based non-judicial mechanisms [Principle 27] Non-state-based grievance mechanisms [Principles 28-30] Effectiveness criteria for non-judicial mechanisms (Principle 31) © Surya Deva

Overall, an impressive uptake by businesses + states UNGPs Continued ... Uptake of UNGPs Overall, an impressive uptake by businesses + states Endorsed by regional bodies: EU, ASEAN, AU, OAS Integrated into the 2011 version of the OECD Guidelines for Multinational Enterprises © Surya Deva

Incorporated into various regulatory frameworks: UNGPs Continued ... Incorporated into various regulatory frameworks: ISO 26000 UN Global Compact Equator Principles Global Reporting Initiative (GRI) IFC Performance Standards © Surya Deva

Influencing laws and policies: UNGPs Continued ... Influencing laws and policies: UK Modern Slavery Act (2015) California Transparency in Supply Chains Act (2010) French Due diligence Bill (pending) EU Non-financial Reporting Directive (2014) Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains (2015) © Surya Deva

Uptake by diverse stakeholders: UNGPs Continued ... Uptake by diverse stakeholders: Institutional investors FIFA Business associations – e.g., ICMM CSOs International Bar Association © Surya Deva

3. Work of the UN Working Group on BHR The UNWG on BHR was established in 2011 It comprises five independent experts representing five different regions © Surya Deva

The mandate of the UNWG includes: UNWG work Continued ... The mandate of the UNWG includes: Promoting dissemination and implementation of the UNGPs Identify, exchange and promote good practices regarding UNGPs implementation Provide support to promote capacity-building Explore options and make recommendations for enhancing access to effective remedies © Surya Deva

Conduct country visits UNWG work Continued ... Conduct country visits Integrate a gender perspective and give special attention to persons living in vulnerable situations Develop a regular dialogue with governments and all relevant actors Guide the work of the Annual Forum on Business and Human Right © Surya Deva

Joins other UN special procedures too UNWG work Continued ... The UNWG also receives information about alleged human rights abuses and sends letters to the concerned states and/or business enterprises Furthermore, it can issue public statements and make urgent appeals in appropriate cases Joins other UN special procedures too © Surya Deva

UNWG work Continued ... In the last 5 years, the UNWG has tried to set/clarify standards and provide guidance to states as well as business enterprises: Responsible agricultural supply chains (Oct 2017) State-owned enterprises should lead by example (June 2016) Business-related impact on indigenous peoples (Oct 2013) Guidance to states about National Actions Plans on BHR (2014; 2016) © Surya Deva

There are several opportunities to engage the UNWG on BHR: UNWG work Continued ... There are several opportunities to engage the UNWG on BHR: Input during UNWG sessions Meetings during Country Visits Triggering Communications Panels @ Annual BHR Forum Feedback regarding UNWG reports / surveys © Surya Deva

4. IBA Practical Guide on BHR How do the UNGPs affect the way in which lawyers have been advising companies? © Surya Deva

IBA Practical Guide Continued ... Four starting points: Link No business decision without an impact on HRs Law Focusing merely on hard law will be inadequate Scope Only national regulations will not suffice Firm Even law firms have HRs responsibilities © Surya Deva

IBA Practical Guide Continued ... IBA Practical Guide on BHR In May 2016, the IBA released a Practical Guide to assist business lawyers in navigating through the intersection of business with HRs The Guide specifically focuses on the implications of the UNGPs, which in itself are not binding but do contain binding rules © Surya Deva

IBA Practical Guide Continued ... The UNGPs are relevant to whatever is the territory of your advice to corporations: dispute resolution (via courts or ADR) mergers and acquisitions corporate governance reporting and disclosure labour and employment land acquisition taxation intellectual property rights © Surya Deva

IBA Practical Guide Continued ... Lawyers should advise corporations to pre-empt human rights risks – not merely risks to them – by conducting HRDD As the nature and extent of HRDD is likely to vary as per size, sector and operating context, lawyers would have a key role to play in exercising their professional judgment © Surya Deva

IBA Practical Guide Continued ... Lawyers should also keep in mind that corporations may create human rights impacts in different ways They may cause, contribute or be linked to such risks © Surya Deva

IBA Practical Guide Continued ... The response of the business to adverse HRs impact varies as per the nature of their involvement with such harm: Cease the action Remedy the harm Caused Use/build leverage Contribute to remediation Contributed to Use/build leverage to mitigate the risk Linked to © Surya Deva

IBA Practical Guide Continued ... Post-UNGPs, if you are advising a corporation, say, about dispute resolution, you should consider: being proactive in meaningful engagement with affected stakeholders covering up may not last for long likelihood of complaints before non-judicial fora (e.g., NCPs under the OECD Guidelines) possibility of establishing an operational-level grievance mechanism © Surya Deva

IBA Practical Guide Continued ... But the UNGPs do not override lawyers’ professional and ethical responsibilities to provide an independent advice and act in the best interests of their clients Business enterprises continue to have a right to defend themselves against allegations of human rights violations Tension though possible in certain cases! © Surya Deva