From an academic viewpoint, the evolving interface of business and human rights (b&hr) and other fields of knowledge is a fascinating topic. b&hr encompasses a broad range of disciplines that extend beyond the study of law, including international relations, political sciences, economics, sociology, climate change, artificial intelligence, and ethics. Similarly, as this book demonstrates, infringements on human rights stemming from business activities often raise questions that span multiple legal domains, such as environmental law, investment law, constitutional law, labor law, antitrust law, and sports law, among others.

As such, this book is not just a theoretical exploration but a practical guide to understanding the multifaceted nature of b&hr.¹ It provides a snapshot of critical issues that populated the b&hr agenda in 2023, offering real-world examples and case studies that can be applied in various academic and professional contexts. This work will undoubtedly enhance the reader’s understanding of the current state of the b&hr framework.

b&hr is a complex landscape, consisting of a patchwork of fragmented soft law and mandatory provisions at the national, regional, and international levels. The United Nations Guiding Principles on Business and Human Rights (ungps, also known as the “Protect, Respect and Remedy” framework)² serve as the primary vector in this context. This book delves into these complexities, shedding light on the recent trend to push for hard law and policy coherence, driven by the enactment of human rights due diligence (hrdd) laws in many European countries and the recent adoption in the European Union of the Corporate Sustainability Due Diligence Directive (EU csddd). It also explores the “hardening of soft law” trend at the international level, where an open-ended intergovernmental working group (oeigwg) was established by the UN Human Rights Council (unhrc) to elaborate a multilateral treaty that creates binding obligations for States and transnational business enterprises.

The effort to achieve a b&hr treaty is the focus of Chapter 1. The call for a treaty stems from concerns that domestic implementation of the ungps has yet to translate into effective changes in the conduct of corporate actors. A treaty would arguably alter this by incorporating some key principles of the “Protect, Respect and Remedy framework” into hard law; this may relate to mandatory hrdd and requiring States to implement civil liability regimes that hold companies accountable for their human rights impacts under their respective national laws. Elena Assenza’s work provides a detailed and comprehensive account of the lengthy and convoluted bh&r treaty-making process. With no guarantee of consensus following ongoing negotiations, States, businesses, and society as a whole need to imagine and implement alternative solutions.

The role of lawyers in the context of climate change is a trending topic. In April 2023, one of the most prestigious associations representing solicitors of England and Wales issued guidelines encouraging legal professionals to incorporate climate change considerations into their practice in a way which is compatible with their professional duties.³ In Chapter 2, Jasmine Elliot and Boudewijn de Bruin explore how lawyers may negatively contribute to climate change through their legal advice and services. This can occur by facilitating business transactions that harm the environment, lobbying against climate-friendly legislation, or encouraging litigation against human rights defenders (the so-called “slapps”). The fundamental question which bar associations and regulators should ask themselves is whether the existing legal ethics framework needs reformulation for the legal profession to adequately deal with those dilemmas.

Given its relevance and pertinence as a real-life case study, the conflict in Ukraine and its human rights dimension is the object of Chapter 3. By exploring what happened to companies that decided to continue their operations or exit the conflict-affected area, Izabela Jędrzejowska-Schiffauer, Daria Nagaivska, and Jan Minksztym propose a conceptual framework based on heightened hrdd obligations for enterprises operating directly or indirectly in similar contexts. This piece provides a better understanding, through a real-case scenario, of how businesses may potentially contribute to human rights violations through their actions or omissions. Based on this framework, the authors provide practical and relevant advice for companies willing to avoid or mitigate business-related risks to human rights in conflict-affected contexts.

The last decade has witnessed the adoption of sustainability policies in many parts of the world, encouraging (and rewarding) businesses to adopt human rights-compliant behavior, which can impact the enforcement of antitrust policies. In Europe, triggered by the Green Deal, a green antitrust movement would arguably favor a more lenient enforcement of antitrust regulations to allow sustainability-enhancing collaboration between competitors. Chapter 4 is devoted to this subject and further analyzes what impact, if any, mandatory hrdd legislation, such as the EU csddd, should have on EU policy efforts to incorporate sustainability considerations in the existing antitrust framework. Maria Jose Schmidt-Kessen calls attention to attempts to use sustainability efforts as justification for otherwise anti-competitive conduct, especially if those efforts fall within the obligations of mandatory hrdd regimes.

The regulation of artificial intelligence (“ai”) and its challenges and approaches have been one of the most debated topics in the academic world. A growing number of scholars and experts in the field of science and technology argue that these new technologies often embed the values and biases of the organizations or individuals that create them. Chapter 5 explores this topic from a human rights angle. Fabian Lütz argues for a shared responsibility of businesses and States to address the risk of biases and discrimination when ai and algorithms are used to complement or substitute human decision-making. As the author explains, ai models may reproduce and amplify societal stereotypes, reinforce discrimination, lead to unfair outcomes, and perpetuate existing inequalities. As society embraces ai, it is crucial to reflect on human rights-compliant regulatory approaches that aim to prevent and mitigate such biases and discrimination.

As societies become increasingly interconnected, larger numbers of people from diverse ethnic, religious, and cultural backgrounds migrate in search of work and better living conditions. Consequently, the integration of minorities and vulnerable groups into the workplace poses challenges to employers around the world and requires efforts to eliminate discrimination, promote dialogue, and create equal opportunities for employees. In Chapter 6, Morgane Ventura assesses the advantages of using the process of “reasonable accommodation” to allow changes in the work environment or how a job is carried out, creating equal employment opportunities for minorities and vulnerable groups. Investigating the legal systems of the United States, Canada, and Switzerland, the author makes a comparative analysis of specific cases where reasonable accommodation could be used to improve the integration of workers.

In a world where digitalization has become the norm, there is an evolving interconnection between new technologies and human rights issues. As the saying goes, people can use technology for good or evil purposes. Authoritarian States have deployed surveillance mechanisms to monitor political dissidents, “deep fakes” have been used to undermine the reputation of journalists and politicians, fake news have been disseminated to influence elections, and the list goes on. Not only technology companies themselves, but also investors must develop and implement these tools in a way that is consistent with human rights. Chapter 7 focuses on a particular category of investors, the so-called venture capital investors (“vc investors”), who invest in companies in their earliest stages and thus have the power to propel or halt innovation with their investment decisions. Michael Jaccard and Christof Cardinaux identify and analyze the regulatory obligations that may apply to vc investors, the challenges they face when implementing hrdd processes, and the actions they can take to push for human rights-compliant practices within the companies they invest in.

In today’s fast-paced world, ultra-processed food, fast food, and sweetened beverages have become a part of our diets. While these products result from legitimate economic activity, their regular consumption may pose health risks, contribute to obesity, cardiovascular disease, diabetes, and cancer, among other health issues. Against this background, Alice Brik Silveira in Chapter 8 assesses the intersection of b&hr and public health by analyzing the responsibility of multinational food corporations for adverse impacts on two internationally recognized human rights: the right to health and the right to adequate food.

The fifa World Cup in Qatar at the end of 2022 raised many questions relating to the respect of human rights. The holding of sports mega-events, including the Olympic Games, in countries with a high rate of human rights violations has faced public opinion criticism, especially in the West. The modern Olympic Games were inspired by the idea of building a peaceful and better world through sports and education. From this initial pacifist ambition, the Olympic movement has shifted its focus to the ideal of respect for human rights over time. Chapter 9 assesses how this relationship between the Olympic Games and human rights has evolved simultaneously with society’s conception of human rights. Jean-Loup Chappelet also explores how sports organizations, including fifa and the International Olympic Committee Organization (“ioc”), have had to update and adapt their governance structures to incorporate respect for human rights in their policies and procedures and how these organizations will have to cope with the emerging b&hr legislation, such as the recently adopted EU csddd.

The transition from soft to hard law is creating binding obligations for businesses that meet the newly established legal thresholds and opportunities for victims, enhancing the options for private enforcement. However, very few studies have shed light on issues of private international law that may interfere with the enforcement of emerging b&hr legislation, including the EU csddd. Private actors in certain jurisdictions have standing to sue businesses for failing to implement these new human rights requirements and duties. In addition, b&hr litigation usually involves several actors in different parts of the world, adding a complex international dimension to the equation. Hence, questions on the applicable law governing civil liability for human rights violations and the applicable jurisdiction will likely play a relevant role in determining the success of private claims, as Andrea Bonomi in Chapter 10 demonstrates.

The impact of international investment agreements on human rights has recently been the subject of intense academic debate. The idea that investors must be held accountable for human rights violations is starting to find support in recent investment arbitration cases (for example, in Urbaser v. Argentina). In Chapter 11, the work of Nicolas Bueno and Isidore Ngueuleu provides a critical analysis of model clauses in investment agreements that have attempted to regulate the investor’s responsibility for human rights and environmental impacts, ranging from the more common “corporate social responsibility” clauses to the more ambitious “investor liability” clauses that have emerged on the African continent. Interestingly, as the authors posit, with the proliferation of hrdd national and supranational legislation, including the EU csddd, there appears to be momentum for including more effective civil liability clauses in future investment agreements adopted by the EU and around the globe.

Often described as the forgotten pillar of the “Protect, Respect and Remedy” framework, ensuring access to remedies for victims is the foundation of any effective human rights system. All too often, victims of human rights violations face unusual barriers to obtaining fair and equitable redress through judicial or non-judicial mechanisms. Against this backdrop, Max Ebdon in Chapter 12 invites a reflection on ways rightsholders could use arbitration to secure remedy from violations in the ICT manufacturing industry. Focusing on the Hague Rules on Business and Human Rights Arbitration, the author analyses which sources are suitable for use as substantive law in business and human rights arbitration. Is arbitration the answer? Today, it is contingent upon companies’ willingness to allow business and human rights arbitration claims to be initiated by third parties affected by their contractual and commercial relationships. Therefore, it remains to be seen whether the full potential of arbitration will be deployed in favor of human rights victims. In the meantime, other effective and accessible dispute resolution mechanisms should be explored as an integral part of the b&hr remedy toolbox. Mediation could be one of them.

The idea that human rights and the environment are interconnected is evolving rapidly. Today, there is a growing recognition that climate change will disproportionally affect disadvantaged communities, displace people due to extreme weather events, and entail biodiversity loss, thus interfering with the enjoyment of human rights. In July 2022, the UN General Assembly approved a milestone resolution recognizing the human right to a clean, healthy, and sustainable environment. Similarly, the Inter-American Court of Human Rights jurisprudence has recognized the right to healthy environment as an autonomous and justiciable right with positive implications on rightsholders, including indigenous peoples. With this background in mind, Fernando Bruno Escobar Pacheco in Chapter 13 explores the influence of Latin American constitutionalism on recognizing the right to a healthy environment, providing a critical analysis of the legal and practical consequences that result from this recognition.

Securing access to remedy for rightsholders, as proclaimed in pillar three of the ungps, is one of the most important aims of an effective human rights system. In that context, Puspa Pokharel in Chapter 14 explores the role of National Human Rights Institutions (nhris) as government bodies with the mandate of protecting and promoting human rights according to the United Nations Paris Principles. More specifically, the author reflects on the work of the National Human Rights Commissions of Thailand and Nepal and investigates the interconnected relationship between the judiciary and nhris to ensure that the enforcement of nhris’ recommendations will have an effective outcome for the victims.

In November 2023, the International Bar Association (“iba”) issued its Updated Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape (Updated iba Guidance).⁴ With support from University of Lausanne (unil), this updated guidance was developed by an expert group composed of lawyers from both civil law and common law backgrounds and chaired by Stéphane Brabant. The iba Council unanimously approved the text after broad public consultation. Because it represents a relevant policy development in the intersection of b&hr and professional legal ethics, the editors decided to include this document in Chapter 16 of the book, alongside a commentary written by three authors involved with the drafting.

The Updated iba Guidance highlights the growing relevance of the ungps and its recent developments for the legal profession. This policy document adds value by concretely assessing how these recent regulatory developments impact the legal profession and helping lawyers understand the scope of their responsibility under the ungps. It also makes it clear that law firms, as business entities, have their own responsibility to respect human rights, both in their own operations and through their business relationships, which include their relationships with clients. As stressed by John Sherman, former legal advisor of Professor John Ruggie, human rights abuses are “such an egregious calamity that the company’s lawyers should be proactively engaged in preventing it, as they would be engaged in the prevention of any serious corporate crime.”⁵

Since the ungps were adopted by the UN Human Rights Council in 2011, new court decisions, contractual arrangements, voluntary standards, soft and hard law have emerged, influencing, shaping and transforming the b&hr framework. As change is inevitable, other developments will occur in the future. Just like this book, the impact of the ungps on the legal profession is “an ongoing journey, in which this [iba] update is a snapshot in time.”⁶