An International View on Human Rights
International human rights efforts are increasingly guided by the SDG Agenda. ‘Racial Equity and the SDGs’ moderator and Executive Director, United Nations Global Compact’s Network UK Steve Kenzie explained that these have achieved extraordinary global consensus. Kenzie noted that the SDGs reflect a “leave no one behind” ethos, which is why, according to panelist Julie Kofoed, Head of Human Rights at the United Nations Global Compact (‘UNGC’), 92% of the goals -- even its environmental targets -- are grounded in human rights concerns.
In Kofoed’s work with the world’s largest corporate sustainability initiative, she urges members to prioritize remedying their most severe human rights impacts first. Nevertheless, she expressed concern about the gap between corporate aspiration and action in this area, citing that while 90% of the UNGC’s signatories have human rights policies in place, less than 15% of these businesses are actually doing human rights assessments and taking action on the results. There’s clearly much more work to do. Kofoed encouraged law students to educate themselves on the SDGs, including racial inequities, and to raise awareness within local communities, advocating within law schools for courses and programs on the SDGs and human rights.
But regulation is also a crucial tool for progress, and the program’s final session, The Legislative Horizon – An International View of Human Rights Protections, offered students a glimpse into the laws enacted in or percolating through numerous jurisdictions, as well as the approaches and debates guiding these regulations.
Panelist Roger Leese, Partner and co-Head of Clifford Chance’s Global Business and Human Rights Practice, noted the distinction between ‘soft’ and ‘hard’ law. While the SDGs and Guiding Principles are ‘soft’, in the sense that they have no direct binding effect on businesses, they can still serve as the basis for corporate policies or governmental regulations, which is increasingly the case, he noted, citing several legal trends. The first is legislation around corporate transparency and reporting which force businesses to publicize their actions around human rights in the hope that peer and consumer pressure will force corrective action. He identified the UK Modern Slavery Act of 2015, which aims to tackle the 25 million victims of modern slavery worldwide, as an example of this approach. But, Leese argued, that with little enforcement, compliance has been poor and that the legislation is under review.
According to Leese, frustration with this market-based approach has led to legislation such as France’s Duty of Vigilance Law requiring mandatory corporate due diligence for human rights violations throughout a business’s global supply chains. The European Union is considering adopting similar legislation but with further consideration being given to penalties for noncompliance, such as injunctions or criminal prosecution. Finally, Leese described a treaty approach with civil and criminal penalties for corporate failure to respect human rights. As requirements become more concrete, businesses are increasingly appreciating their need to act, which is a key development from Leese’s perspective. And it’s the attorney’s job to educate her clients by highlighting the risk of inaction. At Clifford Chance, when onboarding new clients where human rights issues are likely to arise, they will obtain the client’s advanced agreement to accept advice for remedying abuses, leveraging resignation should a client fail to comply.
Of course, lawyers must be vigilant not just to corporate-, but governmental-abuse of human rights. Panelist Steven Feldstein, Senior Fellow at the Carnegie Endowment for International Peace in the Democracy, Conflict and Governance Program, described how state use of emergent technologies, such as artificial intelligence and surveillance, can lead to the exploitation and manipulation of citizens. His research shows sharp degradation of protections of individual rights and liberties across all governance systems including liberal democracies, over the course of the past decade, accelerating considerably during the Covid 19 pandemic.
Feldstein cited the need for legislation in this area to balance freedom of expression and disinformation. In the US, Internet platforms are currently immune from liability for the content posted on their platforms. But legislators are rethinking this approach, aware of the proliferation of extreme and hate speech that can exacerbate racial discrimination and inequity. The assumptions underpinning the ‘marketplace of ideas’ approach to free speech have been turned on their head by social media, according to Feldstein, and can negatively impact the very political process which supports protected speech and human rights. Feldstein also identified the tension between data privacy and surveillance, recognizing that while regulators have a legitimate interest in the need to track and monitor criminal or conspiratorial behavior, they must also ensure individual rights.
Corporations play a role in this debate as well since many technology business models rely on the personal data of their users. Many governments have foisted responsibility for resolving these tensions onto the private sector, said Feldstein. However, some jurisdictions are beginning to grapple with these complex issues. In the area of data exploitation, the European Union has introduced the General Data Protection Regulation. This development shows how, as Feldstein noted, “the sharpened angles of this debate are coming to the fore.” The pandemic, Feldstein observed, is only “putting a finer edge on these debates,’ due to valid public health goals being undermined by broad use of citizen data for law enforcement or other governmental objectives. In addition to creating a troubling precedent, he worried that citizens would become inured to data collection which may lead to even further exploitation. He predicted that in the coming years, both governments and businesses will need to rethink the interaction between data privacy and business and governance models using algorithmic exploitation.
Panelist Safaath Ahmed Zahir, Founder of Women & Democracy, noted the need for any new legislation to take an inclusive approach. Her organisation, which is based in the Maldives, provides feedback on bills, policies and initiatives prior to implementation including those regulations that have arisen during the pandemic. While her work is focused on gender equity, Zahir believes “gender and racial inequity are inseparable.” Her organization raises awareness and advocates for increased female participations in the political systems that create regulation. The downward trend of female involvement in Maldives’ Parliament highlights institutional barriers to entry. So Zahir’s work empowers women in political, party and parliamentary leadership through public-speaking and campaign-strategy workshops that have reached over 600 women. Her organization also educates about human rights. This approach is also relevant to the racial equity movement. Zahir noted that expectations are higher when those who are marginalized finally do manage to obtain leadership positions, a view echoed by Judge Nannette Jolivette Brown and Professor Lawrence Baca. Zahir urged students to nevertheless be relentless in removing the institutional barriers of gender, class, ethnicity, race, educational background and faith traditions that impede positive social change.
Leadership in this moment means rejecting complacency and pursuing bold, ambitious action. As both law firms and their clients face increased legal, financial, employee, customer and societal scrutiny, lawyers must seize this moment to lead. From legislation to litigation, organization to education, activism to influence, lawyers can draw on their problem-solving skills to effect change. And as trusted advisors to the business community, lawyers can use their influence to effect change. “We must help our clients do the right thing,” Leese said. Indeed, Meyerstein believes that lawyers should view themselves as ethical compliance officers. And ethics must have racial equity and human rights at its core. As Zahir noted, ‘we know how far we’ve come, so we can see how much further we have to go.”
Christina Bartholomew