Business, Human Rights & the Limits of Law
Yousuf Aftab, Enodo Rights
If legal penalties are to flow from corporate human rights failures, business responsibility for human rights must be certain enough to be justiciable.
Corporate responsibility for human rights is increasingly being etched into law, causing a paradigm shift in how the law defines a “reasonable business”. But the shift remains fragile, the new understanding murky. As the nature of business and human rights evolves from voluntary to legal, so too must its content. Voluntary standards can be vague and subjective. Law cannot. If legal penalties are to flow from corporate human rights failures, business responsibility for human rights must be certain enough to be justiciable: judges applying legal reasoning must be able objectively to determine a company’s liability, or lack thereof.
This is the pressing challenge for business and human rights as a legal discipline. As we explain in Business and Human Rights as Law (LexisNexis 2019), the core tenets of business respect for human rights have not been subject to judicial review or rigorous legal analysis. The result is dangerous and persistent uncertainty for businesses and stakeholders alike. It is time for lawyers, applying distinctly legal reasoning, to wrestle seriously with this uncertainty.
The Guiding Principles and Emerging Law
The legal evolution in corporate human rights responsibility over the last decade has been rapid and expansive. Governments across the globe are engaged in a grand experiment to encourage or mandate corporate human rights due diligence, remedy, and disclosure. In parallel, corporate human rights litigation grounded in transnational tort, misrepresentation, director & officer liability, and securities class actions is proliferating. And in July 2018 the United Nations Human Rights Council released a Zero Draft of a treaty to govern corporate human rights responsibility under the aegis of international human rights law.
Virtually all of these developments are derived, directly or indirectly, from the practical, governance-based definition of ‘business respect for human rights’ in the Guiding Principles on Business and Human Rights. As this definition weaves through legislation, litigation, and international law, the reasonable business becomes one with a coherent system of policies, due diligence procedures, and remediation processes to address human rights risks and impacts across its global value chain.
The Justiciability Challenge
The challenge for lawyers is that the subject matter and scope of the Guiding Principles are legally uncharted. Take human rights, the Guiding Principles’ raison d’être. As we discuss in Chapter 3 of Business and Human Rights as Law, rights are terms of art with specific and practical meanings under national and international law. But while they are framed as individual or group freedoms and claims, rights are legally defined by limits on government action or imperatives on government to act. International human rights law may thus tell us whether a state can ban access to social media. It is less equipped to answer when a social media company can ban a particular user. The challenge for business and human rights as law starts at the very beginning: What is an adverse impact on human rights?
So too with involvement. As we discuss in Chapter 4, businesses are expected to identify and address those human rights impacts (1) they cause, (2) to which they contribute, and (3) those that are “directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts”. As with rights, none of these concepts is self-evident. Unlike with rights, however, there is not a clear body of law referenced by the Guiding Principles for businesses, courts, and stakeholders to apply in apprehending the involvement terms. The challenge for lawyers is to find definitions that align with the Guiding Principles’ text and purpose while being precise enough to ground companies’ legal human rights responsibility.
Similar challenges apply to the definition of effective remedial process and rights-compatible remedy, both of which require translating public law concepts into a private law context using a transparent method.
Our Thought Experiment
Our text seeks to apply a legal method to address these challenges. It is premised on a simple thought experiment: Imagine if the Guiding Principles, written exactly as they are, were subject to judicial review. How would a neutral (legal) arbiter assess whether a company had met their expectations? We begin with a survey of global legal developments in business and human rights. We then draw on a series of case studies to examine, in turn, the legal meaning of (1) adverse human rights impact, (2) involvement (including omission), (3) effective remedial process, and (4) rights-compatible remedy.
The approach is speculative, but the aim is practical: we seek to understand the implications of Guiding Principles-inspired law and litigation across the world. While definitive answers will take time, we hope our text encourages vigorous legal debate, to ensure that business and human rights embraces both the consequences and rigor of a truly legal discipline.
Yousuf Aftab is the founder and principal of Enodo Rights. He is the co-author (with Audrey Mocle) of Business and Human Rights as Law: Towards Justiciability of Rights, Involvement, and Remedy (LexisNexis 2019).