In 2021, the University of Lausanne (unil) published its first book in this Series, Social License and Dispute Resolution in the Extractive Industries.¹ During the Conference that led up to the publication, academics, practitioners and students heard practical examples of how human rights were affected by mining activities – whether it was in relation to labor rights when workers in gold mines suffered severe burns, or indigenous peoples’ rights when it came to free prior and informed consultation.² Although the volumes in the Series, which followed this first one, picked up on topics relating to dispute resolution, it was eventually time to return to human rights.

Stéphane Brabant co-authored the concluding chapter of Social License and Dispute Resolution in the Extractive Industries.³ He has been a Senior Partner at Trinity International aarpi since 2021. Prior to that, he worked several years with Herbert Smith Freehills as Co-head of their Business and Human Rights (b&hr) group and was one of the experts advising John Ruggie (former UN Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises) on the human rights capacity building obligations and responsibilities of States and multinationals.

After publishing volume 4 of this Series, Blockchain & Private International Law,⁴ unil reached out to Stéphane Brabant, who had built a strong understanding of Blockchain and its value in enabling traceability in supply chains. Introducing him to King’s College, London, Professor of Cyberlaw, Bernhard Maier, whose practice includes international arbitration in the extractive industries and who contributed to one of the volumes on dispute resolution in this Series,⁵ the idea was to issue a call for papers on supply chain due diligence.

The preliminary meetings involved experts supporting unil’s ll.m. Programme, including Sandrine Giroud, a Partner with lalive in Geneva, who specializes in b&hr and teaches an advanced course on International Litigation at unil; Mansur Pour Rafsendjani, a Partner with noerr in Munich, who specializes in supply chain compliance and regularly trains unil ll.m. students in this field; and, Maria Izabel Cardozo, then an unil ll.m. student and legal counsel with Philipp Morris International, who specializes in environmental, social and governance (esg) issues.

A Conference took place in Lausanne from 31 May to 1 June 2023, co-chaired by Andreas R. Ziegler, Damiano Canapa, and Maria Izabel Cardozo.⁶ The topics discussed included the role of lawyers in a changing landscape, the role of the legal profession in climate justice, the EU Corporate Sustainability Due Diligence Directive (EU csddd), the impact of the war in Ukraine, the interface between the judiciary and national human rights institutes, the corporate responsibility to respect human rights in the artificial intelligence domain, the greening of antitrust, the food industry’s responsibility in relation to the right to health, and the interplay between investment treaties and human rights, among others. As part of the conference, Bernhard Maier conducted a fireside chat with a representative of a leading mining company, exploring issues such as the challenges and opportunities inherent in the concept of “social license” and the nuances of appropriate stakeholder engagement in geopolitically challenging jurisdictions. The talk brought together some of the threads discussed during the Conference in a practical context, thereby reinforcing the contextual and substantive link to the first book in the Series.

As part of the preliminary meetings held under the aegis of unil, it quickly became clear that there was scope for unil to make a practical contribution to the advancement of b&hr and the role of the legal profession in a rapidly changing landscape. The project then took on a whole new life. It would no longer be just another volume in unil’s Series. Instead, it would involve the drafting, negotiation and adoption by the International Bar Association (iba) of a living document that would be subject to consultation and updates every two years. This required the commitment and input of an expert team prepared rapidly to get up to speed on the latest regulatory developments and emerging trends in the b&hr space.

Led by Stéphane Brabant, that “Drafting Group” – including Maria Izabel Cardozo, Sara Carnegie, Douglass Cassel, Lara Douvartzidis, Elise Groulx Diggs, Shaheeza Lalani, Bernhard Maier, Martijn Scheltema, and John Sherman – spent months devising the Updated International Bar Association Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape (Updated iba Guidance).⁷ The group then took it through the rigorous approval process of the iba, culminating in the adoption of the document in November 2023 at the iba Annual Conference in Paris. With support from unil, the document, originally adopted and published in English, was translated into French and Spanish; other translations soon followed, all of which are publicly and easily accessible on the iba website.

The new guidance highlights regulatory developments and emerging trends in the field of b&hr and assesses their impact on the work of lawyers. Given the relevance of this new guidance to the modernization and constant reinvention of the legal profession, the editors did well in including the Updated iba Guidance in Chapter 16 of the book: “[t]he enactment of mandatory human rights and environmental due diligence requires all businesses, including law firms, to adapt. As soft law hardens and broadens, and esg [environmental, social, governance] principles increasingly influence investment decisions, the Updated iba Guidance helps lawyers contribute to the business respect for human rights.”⁸

While much has been said about esg and corporate compliance, business enterprises are not alone in the journey to improve human rights performance. Every segment of society, including the legal profession, is essential in the quest to ensure respect for human rights on a global scale.

International law has traditionally recognized human rights as a primary obligation of States in exercising their political powers. Businesses, therefore, have historically viewed human rights issues as the exclusive concern of governments. However, with corporations’ prominent role and influence in the world economic and political scene, this traditional way of looking into human rights issues has dramatically changed. Even if a State does not properly care for its constituents by failing to enact laws and enforcement mechanisms to protect them, this does not mean that businesses can operate and make profits at the expense of fundamental rights.

In today’s world, “it’s becoming harder to claim that businesses are not subject to international public law”⁹ or to argue against the corporate responsibility to respect the human rights of employees, consumers, local communities, and the people affected by business activities. However, the increasing recognition that business has a role to play has yet to translate into an actual change in mindset and behavior of businesses, and many questions remain unanswered. What are the applicable standards? What is the scope of business accountability? What can businesses do to prevent harm? What are the roles and responsibilities of all the actors: business, government, and civil society?

The UN Guiding Principles of Business and Human Rights (ungps) have played a pivotal role in addressing these questions and shaping the landscape of b&hr. These principles, endorsed by the United Nations Human Rights Council in 2011, have established a globally accepted standard. They recognize that businesses have an autonomous responsibility to respect international human rights in their operations and value chains, independent of the obligation of States to protect human rights from abuses by the private sector. The ungps provide businesses with tools to identify, prevent, and address the risk of harm to human rights, whether in their activities or those of their subsidiaries, subcontractors, or suppliers.

However, as Professor Ruggie recognized, the ungps are just the end of the beginning, as developments are fast happening in the form of legislation, voluntary standards, contracts, and judicial decisions. Despite their soft law nature, the ungps have been incorporated into several international normative standards, such as the oecd’s Guidelines for Multinational Enterprises. More recently, the ungps have inspired the adoption of mandatory human rights reporting and due diligence laws around the world, such as the French Loi de Vigilance, the German Supply Chain Act, and the recently adopted EU csddd.

This is where the Updated iba Guidance is designed to come into play. It is intended to assist lawyers in properly advising businesses to adapt their internal policies and codes of conduct to reflect the ungps, which increasingly appear as a standard in commercial and financial transactions. The role of the legal profession is crucial in this evolving landscape of b&hr. Their legal expertise is essential for understanding not only the ungp framework, but also the emerging responsibilities and obligations generated by business-related human rights laws. With the gradual but inevitable shift from soft law to hard law and the rise of national and supranational b&hr legislation, there are increasing requirements for reporting (such as the EU Corporate Sustainability Reporting Directive) and due diligence (such as the EU csddd) worldwide. Companies rely on their internal and external lawyers to decipher the extent of their obligations and devise the most effective compliance strategies. With their legal expertise and wise counseling, they can help clients navigate the intricate maze of b&hr normative standards (also termed the b&hr “galaxy of norms”).¹⁰

As such, lawyers must be prepared to identify the human rights issues with which their clients will likely be confronted, depending on their area of activity. This exercise is not simple because it requires an understanding of the situation on the ground (fact-finding), the context in which the business activity is undertaken, and the applicable national and international human rights standards. Even if domestic law is silent about a specific legal issue, according to the ungps, lawyers are encouraged to ascertain and advise on the appropriate boundaries under international human rights standards. For example, if national labor laws do not impose maximum working hours or overtime compensation, would it be reasonable for multinational companies to ignore evidence that their suppliers impose a 15-hour shift without proper breaks or overtime payment? The answer, as recent practical examples illustrate, is a resounding “no”. International brands that fail to address these issues today face not only reputational risks, but also increasingly adverse hard law repercussions resulting from an intricate web of applicable national and international laws, woven together on a global scale by conflict of laws principles. Recent claims against technology companies by States holding the majority of critical minerals for the internet economy of the 21st Century are just one example of these far-reaching repercussions.

Human rights embed fundamental values of universal significance. b&hr is a rapidly advancing field of legal research and practice. Companies should act swiftly because the law constantly evolves and “what is considered merely unethical today, may well be unlawful tomorrow”.¹¹ Lawyers, as their clients’ wise counselors, should also be ahead of the curve and integrate human rights considerations in their legal work, realizing their full potential as b&hr enablers and proliferators.