Keynote Speech by ASG Brands Kehris at Rule of Law Webinar

My sincere thanks to the American Bar Association, the Inter-American Bar Association, the International Association of Lawyers, and the International Association of Young Lawyers for the invitation to speak on the role of lawyers in defending democracy, human rights, and the rule of law.

This important conversation comes at a particularly apt time as we celebrate the 75^th anniversary of the Universal Declaration of Human Rights.

The Declaration recognizes that the inherent dignity of all human beings and promoting and protecting human rights is the foundation of freedom, justice and peace. Universal and indivisible, and anchored in fundamental values that span every culture and continent, human rights are also tools that help to provide sustainable solutions to the world’s biggest challenges – from the triple planetary crisis, entrenched and increasing inequalities within and between nations, discrimination on the basis of gender, race, disability, sexual orientation, belonging to indigenous peoples or minorities or other grounds, insecurity, divisiveness and conflict, fuelled by hate speech and disinformation..

Setting aside the complexities of definitions, the rule of law is fundamental in this regard. Across multiple and varied jurisdictions, the legal community is instrumental in upholding and promoting the rule of law in order for human rights to be properly protected. The United Nations – as recently reaffirmed in the Secretary-General’s new Vision on Rule of Law – defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”.

In other words, we cannot speak about the rule of law unless firmly anchored in the protection of human rights, and vice versa.

This also entails that lawyers have a key and necessary role to play regarding human rights: representing victims of violations, holding perpetrators to account, and actively upholding human rights due process standards in the administration of justice, but also consistently advocating for human rights as an integral part of good governance and rule of law. In addition to individual lawyers’ work, professional lawyers’ associations are important actors to safeguard the system.

In this regard, I am pleased that OHCHR has a well-established relationship with the International Bar Association as well as with many National Bar Associations, engaging in collaborative activities over the last year in, for instance, Mozambique, Sudan, Azerbaijan, Georgia, Iraq and Libya. Earlier this month here at UN Headquarters, I had the great pleasure to interact with the American Bar Association and I look forward to other opportunities to continue that exchange.

The Universal Declaration acknowledges the role that every individual and every organ of society have in promoting respect for human rights and fundamental freedoms. While the development of the international human rights framework has largely focused on a State-centric system of global governance, we know that a variety of actors other than States – including business enterprises – can and do harm human rights.

Aware of many bar associations’ extensive engagement and dedicated work concerning business and human rights, and that the role of lawyers in this regard is of special interest to you in today’s discussion, allow me to dedicate some time to this important matter from the perspective of OHCHR.

While business enterprises are a major source of investment, innovation, and development and can help the implementation of human rights for people and communities, we know all too well that they can also pose significant risks to human rights. Globalization and powerful transnational business actors and jurisdictional complexities have created governance challenges and gaps, leading in some cases to an environment of impunity for actions that result in human rights violations.

In response, the Human Rights Council endorsed the United Nations Guiding Principles on Business and Human Rights (or UNGPs) in 2011. Building on the UDHR and international human rights system, they present a framework through which States’ existing human rights obligations can be understood in relation to business enterprises. This includes the duty to adopt effective regulatory and policy measures to prevent and address business-related harm.

The Guiding Principles also put forth a distinct, but complementary, standard of responsibility for business to avoid infringing on the human rights of others and to address adverse human rights impacts. They offer clarification as to how States and business should ensure that those who have been adversely impacted have access to effective remedy.

Broadly supported by Member States from all regions, global business organizations, companies, lawyers and bar associations, trade unions, and civil society organizations – and in the absence of a dedicated, legally binding international instrument -- they are considered an authoritative global framework to address business impact on all human rights.

In addition to serving as a supplementary source for lawyers’ work in advocacy, analysis and in defending victims of violations through actions by businesses, the UNGPs are relevant to the work of lawyers in two ways: Firstly, law firms have their own responsibilities to respect human rights in accordance with the UNGPs; Secondly, as legal counsel to business, lawyers have an important role in helping businesses understand what the responsibility to respect human rights entails in practical terms.

As the Guiding Principles set out, “the responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure.” Thus, in line with the UNGPs, law firms should therefore, in principle, have in place the following:

(a) A policy commitment to meet their responsibility to respect human rights;

(b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights; and

(c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.

The concept of human rights due diligence is particularly pertinent as it helps identify and address adverse human rights impacts with which a business may be involved, including through business relationships both upstream and downstream.

Upstream human rights due diligence undertaken by law firms will typically examine suppliers and supplier arrangements to assess the risks of adverse human rights impacts and to identify different ways that they could be addressed and mitigated.

Identifying and addressing adverse human rights impacts downstream can be challenging for lawyers as this may go to the heart of an attorney-client relationship. In this context, it is useful to recall the so called “involvement framework” set out in the UNGPs. It sets out the different ways in which a law firm might become “involved in” adverse human rights impacts: a firm may cause human right harms, contribute to them, or be directly linked to such harms by their business relationships.

The nature of a law firm’s involvement in adverse human rights impacts can be difficult to determine exactly and can be influenced by the degree to which a client relies on a lawyer for strategic advice. As you know, there has been much discussion within the legal profession as to how the expectations reflected in the Guiding Principles align with professional ethics and standards for lawyers. Questions that often arise include:

• When and how an attorney-client relationship should be terminated, and how this relates to the need for access to independent legal counsel;
• The extent to which the professional obligation to act in the best interests of a client can take into account the interests of other stakeholders; and
• The extent to which and under which circumstances lawyers should be identified with the harmful acts of their clients.

When acting as legal counsel, translating the Guiding Principles into specific and contextually adapted advice on policies, due diligence and remedies serves to ensure that the business enterprise fulfils its human rights responsibilities.

The UNGPs are increasingly incorporated into domestic, regional, and international legislation. We see this in recent regulatory developments in the United States, Europe and beyond. Currently, the European Union is debating a directive on corporate sustainability due diligence which will have direct implications for businesses throughout the world seeking access to European markets, including many American based multinational corporations. Other laws and policies relating to business impacts on human rights in jurisdictions around the world, including North and South America, seek to build on the Guiding Principles framework.

These and other developments demonstrate the increasing need for lawyers to understand and advise clients on the UNGPs, their implications, and how to implement them adequately.

Further, lawyers and businesses across the globe increasingly recognize the utility of the UNGPs in helping to limit not only the legal, but also the reputational and financial risks. As the Guiding Principles are essentially a risk-management tool, advising clients on how to implement the UNGPs, even where not legally required, will yield dividends. Indeed, acting in a client’s “best interests” involves being able to recognise the bigger picture – including the human rights implications of what is contemplated in the short, medium and longer term – not just acting according to what may suit a client’s short-term commercial objectives.

For lawyers to meet their own responsibility to respect human rights while also support their clients to do the same, it is good practice to:

• Be proactive and engage with clients on human rights-related issues and propose solutions that are aligned with the UNGPs;
• Understand the importance of addressing human rights-related risks to people regardless of whether, or the extent to which, these may pose legal risks to a corporate client;
• Be prepared to support the design and implementation of human rights due diligence processes, as well as effective mechanisms to address grievances.

There are numerous resources to help you and your peers apply the Guiding Principles concretely in your work. For instance, the International Bar Association has produced guidance on business and human rights for lawyers, which are currently being updated. The Business and Human Rights Initiative of the American Bar Association has compiled numerous resources on the legal profession and the UNGPs. The Council of Europe has made available an on-line training tool designed specifically to support lawyers in reflecting the UNGPs in a range of different contexts and specialist areas. Additionally, numerous law firms and business lawyers around the world recently launched the Business and Human Rights Lawyers Association to discuss and share how lawyers can best implement the UNGPs in their work.

Our Office has also developed a range of materials to unpack the meaning of the UNGPs. As the leading UN entity on human rights, we have produced resources and can provide technical assistance regarding the promotion and protection of human rights and freedoms set out in the Universal Declaration of Human Rights more broadly. We would be keen to share these in accordance with your interests and needs.

I hope that this brief overview of the Guiding Principles is helpful as one of many tools to understand and exercise the critical role of lawyers as defenders and guardians of universal human rights and the promotion of democratic governance and the rule of law.

The work of lawyers touches on every aspect of society and its foremost challenges.

We see this in the area of climate change, for instance, where climate justice litigation as a whole, and human rights-based litigation specifically, is on the increase. According to London School of Economics’ 2022 study on global trends in climate litigation, the cumulative number across jurisdictions (mainly domestic) of climate change-related cases has more than doubled since 2015, bringing the total number of cases last year to over 2,000.

Last year, further legal cases have been brought against fossil fuel companies, especially outside the United States. Cases against corporate actors are also increasingly targeting the food and agriculture, transport, plastics and finance sectors. Young people, on behalf of future generations, are spearheading an increasing number of these cases. For instance, earlier this year, a dozen children filed a lawsuit in the Austrian Constitutional Court alleging that the Austrian Climate laws failed to adequately protect their rights and those of future generations from the climate crisis. At the regional level, in the European Court of Human Rights this and two other climate justice cases are pending before the Grand Chamber.

Another topical new area requiring our common efforts is the human rights implications of new and emerging technologies, including in the digital field and Artificial Intelligence. Until a regulatory framework is not put in place, voluntary codes of conduct and monitoring mechanisms and the application of existing binding human rights provisions through evolving interpretation will be critical. For all these aspects, the work and human rights dedication of lawyers – through analysis, advice to tech companies, advocacy, and strategic litigation – is essential.

To conclude, I would like to mention that to celebrate the 75^th anniversary of the UDHR, the High Commissioner has launched the Human Rights 75 Initiative to rejuvenate the Declaration and demonstrate how it can meet the needs of our time and the future. Under it, we encourage everyone to make pledges – concrete commitments to take a specific action to promote and protect human rights.

I hope you support this endeavour by thinking about which pledges you could make in this regard – perhaps including a public commitment to the UNGPs, or some other transformative initiative that will make visible the essential contribution of lawyers and bar associations to human rights protection through your daily work.

I look forward to continuing and deepening our partnership for human rights for all.

Thank you.