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Navigating the Legal Landscape of Business and Human Rights: From Social License to Just License

This overview delves into the critical relationship between business and human rights under the Guiding Principles. It discusses the legal implications of these principles and presents a pathway from a traditional "social license" to a more robust "just license." It outlines practical steps to mitigate legal risks while emphasizing the need for businesses to engage thoughtfully with human rights responsibilities. By understanding core concepts such as scope, causation, and proportionality, businesses can navigate this evolving legal landscape effectively.

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Navigating the Legal Landscape of Business and Human Rights: From Social License to Just License

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Presentation Transcript

  1. Beyond Social License The Legal Implications of the Guiding Principles

  2. Overview: the path beyond • Summary of the Guiding Principles on Business and Human Rights • Legal implications of the Principles • Beyond “Social License” to “Just License” • Practical steps to mitigate legal risk

  3. Background to the Principles • Why needed? • Two dimensions of human rights: (1) legal definition; (2) institution. • Historically, institution was the state. Responsibility based on control over territory. • Principles provide comprehensive and coherent basis to apply responsibility to business.

  4. Understanding the Principles • Three core (legal) concepts: • Scope • All human rights; legal definitions. • Causation • Cause or contribute to; directly linked to. • Proportionality • Response expected turns on context.

  5. Practical implications • Three core concepts ensure Principles are: • Broad • All internationally recognized human rights—no subset. • Practical • Narrow focus based on causation. • Prioritize by impact. • Respond based on operating context.

  6. Principles as source of legal risks • Principles’objective and comprehensive framework creates new type of human rights risk for business: legal risk. • Bilateral Investment Treaty • Financing agreements • Home state litigation

  7. Beyond Social License to Just License • Social license still essential but insufficient. Need to protect against governments, lenders, domestic courts. • Need justified social license to mitigate both dimensions of human rights risk. • Principles underpin legal risk but also provide framework for legal risk mitigation.

  8. New risk, new risk mitigation

  9. Acquiring Just License in practice • Progressive and principled narrowing: justified and practical

  10. Implications of the Principles • Create fundamentally different risk—objective and significant legal risk. • Opportunity for business to mitigate risk proactively and coherently. • Legal concepts provide framework for engagement and practical due diligence and response.

  11. Human rights are serious business. Respond efficiently. Yousuf Aftab Principal yousuf.aftab@enodorights.com +1.917.688.9570

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