In Blogs I, II, and III, we explored how the evolving landscape of Business and Human Rights (BHR) has begun to fundamentally challenge both the traditional role of the lawyer and the professional obligations of a growing group of practitioners. Lawyers, consultants, auditors, and other professionals increasingly make their living by advising on, implementing, and operationalising regulations that now fall under the expanding umbrella of BHR.

These developments raise uncomfortable but necessary questions discussed in previous blogs – Who exactly is a BHR professional? Whose interests do they ultimately serve? And what ethical frameworks guide their work when corporate compliance, human rights protection, and commercial incentives collide?

In this last part of our blog series, we aim to tie these many different strands together by going one step back and one step forward at the same time. We return to the foundations of the field – the making of the BHR lawyer and professional in how BHR is taught and understood in law schools, business schools and other academic domains. At the same time, we also look ahead to the future of the field – the practice of BHR law and other professional services offered in the field, particularly the growing need for professional standards and ethical benchmarks for ‘BHR Professionals’.

BHR Education

BHR has found its way into both law school and business school curriculum, although there is still a long way to go in regard to the number of such schools that offer BHR courses. However, both disciplines arguably follow  very distinct approaches in the way they teach BHR.

Legal education, while varied across jurisdictions and institutions, generally follows a similar structure. At the very least, most law school curricula cover core subjects designed to provide students with a foundational understanding of the legal system. Constitutional Law, Criminal Law, Administrative Law, Contract Law, Corporate Law, and International Law almost always make the list. In recent decades, Environmental Law has emerged as a distinct and well-established field in its own right. BHR as a core subject is mostly only offered at a Master level (LLM) if at all, and rarely finds place in the curriculum for a Bachelor’s degree.

Yet, despite the rapid expansion of BHR regulation and practice, the place of BHR within this academic framework remains largely unsettled. On one hand, some may reasonably argue that BHR belongs within Corporate Law, as it is here that corporate governance, directors’ duties, and disclosure obligations are already addressed. Some, however, would situate BHR firmly within International Law, given that the normative backbone of the field – the UN Guiding Principles on Business and Human Rights (UNGPs), originates in international soft law. Some might make the case to situate it alongside other “sustainability laws”. Still others might advocate for BHR to be recognised as a distinct subject altogether, reflecting its inherently cross-cutting nature and acknowledging the growing jurisprudence in the field.

While there might be good arguments for different placements for BHR in the curricula of a Bachelor’s programme, the question of where it best belongs is worth dwelling on as there are risks of fragmentation. While there are strong reasons for offering BHR as an elective, especially concerning time constraints given the vast number of subjects competing for space in the curriculum, doing so might signal that it’s only a “marginal” topic, something you specialise in only if you want to advise on BHR issues, missing the fundamental point of it shaping all corporate advice. If BHR is dispersed across different subjects, it may lose coherence and become diluted in its impact. Further, if it is subsumed under a broader “sustainability” or “ESG (Environment, Social and Governance)” umbrella, it might lose its specific normative force.

In business schools, the challenges are different. The wider focus on ESG which typically has a much larger focus on environment issues along with corporate governance topics, might shroud the standalone development of the field of BHR and subsume its evolution under its umbrella. Although there is a need for dialogue around aligning the language, methodologies, and pedagogical approaches through which BHR is taught in business schools and law schools (for example, through the Teaching Business and Human Rights Forum) given that CXOs and lawyers are complementary actors in shaping responsible business conduct, this blog however, does not seek to undertake that analysis in detail.

Aside from its place in the curriculum, there also remain important questions around what is taught and how it is taught. If a field of its own, BHR might need a more rights-holder-based lens instead of a corporate governance one to realise the true objective of the field – prevent, mitigate and remedy adverse impacts of corporate activities. If BHR is acknowledged and taught as a subject in law schools, other subjects might also need some revisiting. Corporate Law and Contract Law are good examples. For example, as highlighted in Blog II, responsible contracting lies at the root of realising the objectives of mandatory HREDD regulation, as without protecting suppliers from the costs of the legal risk of the regulation that buyers face from being passed onto them, the goals of the regulation will remain unrealised. Business schools would also need to reflect on how the human rights responsibilities of businesses are taught to ensure that it is not only shrouded in business-interest centered language. Many business schools emphasize the “business case for human rights” and this may not necessarily align with a rights based focus. Similarly, company law  and business schools might both need to move away from a shareholder centric view of a corporation (where corporations are understood to exist primarily to maximise shareholder profits) to a stakeholder oriented conception of the corporation (that recognises responsibilities to a wider range of stakeholders) of the corporation. In alignment with the normative demands of the UNGPs, the intuition must move away from protecting business interest at all costs to looking out for the business’ stakeholders, even when doing so might cost the client. For the intuition to change, these principles should be introduced during a student’s foundational educational stage as ethical instincts are formed before specialisation. Once commercial logics are internalised, they are hard to undo.

Not only is BHR education very siloed but approached from a widely different perspective in its objectives in law schools and business schools. Law students are rarely exposed to how business decisions are made, while business students are seldom trained to engage seriously with legal accountability or rights-based reasoning. This divide risks producing professionals who talk past one another when addressing the same human rights challenges. At its core, BHR is inherently interdisciplinary and these gaps in delivery of its intent, objectives and methods to achieve said objectives should be resolved and aligned.

Ultimately, the question is not simply whether BHR is taught, but whether education equips future lawyers and managers to recognise human rights as something more than a variable in the assessment of ‘legal risk’ in corporate decision-making and to understand their own role in either reproducing or challenging existing power asymmetries.

Professional practice, regulation and voluntary initiatives

Beyond how these professionals are introduced to and taught about BHR, it is just as important to reflect on the regulatory framework and incentive structures that shape their practice. As an anecdote, a lawyer discussed in a seminar on ethics and values in law how he went to law school with the aim of contributing to social justice in his career but found this goal lacking in his professional life as he went on to work for a large law firm. This short but powerful story reflects a potential mismatch between education and practice that needs to be considered. Even if professional education were to more strongly incorporate BHR, would this focus be able to survive against the pressures and profit-seeking incentive structures in practice? How can we move to having professionals widely consider BHR as a part of their practice, and how can we ensure that professionals who explicitly promote themselves in the BHR space live up to the standards that are needed to ensure substantive implementation?

Looking at professional obligations and regulations governing entry and the ethics of the profession first, as discussed in Blog I of this series, the legal profession offers a clear example of a self-regulating profession that fulfils core professional obligations as a part of its societal role. These obligations are often translated into professional codes of conduct which are supervised and enforced by national professional regulatory bodies, like bar associations or legal societies. These codes often allude in the introduction to the lawyer’s role in promoting rule of law and upholding public trust or interest (see for example the Solicitors Regulation Authority in the UK). Yet, in the core of the codes of conduct, they don’t necessarily focus on how lawyers are expected to fulfil this role and instead address issues like how to handle client money, conflicts of interest or confidentiality. Yes, these are important, technical issues to regulate for lawyers; but these issues are in relation to the client. There are a few codes of conduct that explicitly talk about human rights (see for example Duty 2.9 in the Code of Conduct of the Swedish Bar Association), but even then it is unclear if and how this duty is enforced. The International Bar Association and the American Bar Association have both published statements in relation to the role of the lawyer and BHR, but until these obligations are actually integrated in lawyers’ regulations and enforced, it is uncertain how these obligations will be prioritised and rebalanced in practice. One key function that these codes must fulfill is ensuring that lawyers are able to act and advise independently from the state’s interference. Governments might use regulation, licensing, procurement, and informal pressure to coerce lawyers and firms into avoiding work that criticizes the state or exposes state-linked abuses. Governments interference such as through executive measures targeting specific firms, threats to withdraw contracts or security clearances, and pressure to redirect pro bono resources toward government-favored causes demonstrate how regulatory powers can be weaponized to make independent legal practice ethically and financially unsustainable. For a field like BHR whose fundamental objectives remain opposed to commercial and economic interests of only profit seeking corporations and susceptible to regulatory capture by them, political independence is crucial to ensure the ethics of the practitioners and advocates.

Yet, focusing on regulations would miss another important aspect of practice that expands beyond the regulated professions, namely a professional’s market incentives. This raises direct questions in relation to incentives, for example, how does the billable hour or pricing of a project incentivise a professional to reflect or challenge a client’s request or how do promotion considerations account for ethical considerations. Ultimately, the valuation of BHR services by law firms is directly linked to the demand for these services by their clients. The role of the in-house BHR professional in being able to elevate the importance of human rights considerations in corporate decision-making and act independently from the company and its short-term interests directly shapes the demand for external advice. To this end, and maybe as a start, it is important to reflect on the ethical salience of a profession – to what extent is a lawyer or consultant incentivised to reflect the values of their profession vis-a-vis their client’s? One way to pivot in the direction of “ethical practice” of BHR is by fostering meaningful dialogue and communication (both within and outside of regulatory bodies) and supporting the informal formation of ethical norms. Examples of these initiatives include the BIICL Business and Human Rights Forum, the Business and Human Rights Lawyer Association, Teaching Business and Human Rights Forum and the Net Zero Lawyers Alliance. These efforts may reinforce professional identity by deepening awareness of ethical issues and increasing sustained reflection on them.

Finally, reflecting on the broader industry of professionals explicitly in the BHR industry as outlined in Blog III, a call to standardize the industry in some way should be considered. Addressing the industry of BHR professionals with a set of standards that spans across a number of different professions, each with its own set of role obligations to fulfil, is a difficult task. Here, however, we may be able to draw inspiration from another ethical challenge faced by businesses – anti-corruption. In that context, collective action initiatives have raised businesses’ ethical standards. For example, voluntary clubs based in club theory, which are designed to have a high barrier to entry and enforced compliance with the initiative’s commitments, have been used in international business anti-corruption initiatives to raise ethical standards collectively, enabling anti-corruption norms to diffuse throughout an industry through transparency mechanisms and incentives like reputation-building. A similar approach could be adopted in BHR in the form of a ‘BHR professional club’ that adequately reviews and enforces membership based on shared commitment to BHR principles. This could be particularly valuable in enabling the independence of in-house BHR professionals that subscribe to being a member of the club and pledge to uphold its shared commitments and values. While the structure of the club would have to be developed to ensure independence in its function, it could be envisioned as an international, voluntary membership-based format to signal commitment to certain principles and values that different professionals could concur on.  This would also serve to provide protection to professionals who might need to take a bolder stance when facing conflicts of interests in their professional roles. The enforcement aspect of the initiative, namely excluding actors that do not act in accordance with the commitments of the club, would need to be further evaluated. As an initial step to professionalisation, a voluntary initiative may offer a practical pathway to develop cross-industry standards that could eventually support the emergence of more formal self-regulatory bodies.

In this blog series, we have sought to raise a range of questions concerning the role of lawyers’ duties and conflicts when considering BHR in their advice and practice, as well as the role of other BHR professionals in the rapidly expanding industry of BHR professional services. The objective in doing so has been to implore discussion on whether lawyers and other professionals are truly treading a path that makes human rights more salient in business decisions and operations, or whether they are, intentionally or unintentionally, assisting companies in regulation-washing. This question matters because BHR regulation, like regulation more broadly, may carry the cost of rendering private enforcement more lax. When consumers and civil society begin to look away from companies that build their reputation on dutiful compliance with HREDD laws alone, the role of BHR professionals – how they interpret the law and advise companies, will become decisive.

In this final blog, we have attempted to sketch a vision of where work could begin to strengthen the ethical foundations of the evolving BHR professional industry. While professions such as law and accountancy already operate under established codes of ethics, these must be critically examined to assess whether they meaningfully constrain overriding business interests when those interests conflict with human rights and environmental goals. There is also a need to attend to the making of the lawyer itself – ensuring appropriate placement and pedagogical approaches for BHR in legal education, alongside a re-evaluation of professional gatekeeping in light of these recalibrated standards. As for other BHR professionals, their diverse backgrounds and services suggest space for developing shared professional standards that set ethical baselines and signal genuine commitment to clients and the public.

While this blog series poses more questions than it provides answers, it does so with the ultimate aim of stimulating debate and bringing to the fore a question that will shape the trajectory of BHR professionalisation – whether it evolves into a business of human rights, or commits itself to a business for human rights.

We would like to acknowledge and thank John F. Sherman III, independent advisor to bar associations, lawyers, and law firms on the UN Guiding Principles on Business and Human Rights and Andreas Rühmkorf, Professor of German and International Commercial Law at Westfälische Hochschule, for their valuable feedback in shaping this blog.