Beyond Social License

Beyond Social License

The Legal Implications of the Guiding Principles

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

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.

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.

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.

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

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.

New risk, new risk mitigation

Acquiring Just License in practice

• Progressive and principled narrowing: justified and practical

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.

Human rights are serious business. Respond efficiently.

Yousuf AftabPrincipal

yousuf.aftab@enodorights.com+1.917.688.9570