Fifteen years ago, the UN Human Rights Council endorsed the Guiding Principles on Business and Human Rights (UNGPs), establishing that companies, regardless of sector, have a responsibility to respect human rights wherever they operate. Since then, the compliance landscape around that idea has grown considerably, especially in Europe, and human rights risk has become something companies actually have to include in their calculations. However, in the United States, the picture looks different, and it changed sharply this year.
On June 23, the U.S. Supreme Court decided Cisco Systems, Inc. v. Doe I, ruling 6–3 that federal courts cannot create new causes of action under the Alien Tort Statute (ATS) and that aiding-and-abetting liability therefore falls outside it. The ruling reversed the Ninth Circuit, which had joined other circuits in accepting such liability. The plaintiffs, Falun Gong practitioners, alleged that Cisco’s technology helped Chinese authorities locate and persecute them. The decision is seen as the final step in a long retreat through Kiobel (2013), Jesner (2018), and Nestlé (2021), each of which narrowed the statute. What would have remained was the possibility of suing a company for helping state or non-state actors commit human rights abuses. That path is now closed. The Fourth Circuit has since read Cisco to foreclose judicially created ATS liability more broadly, reversing and ordering dismissal of the claims of three Abu Ghraib detainees who had won a $42 million jury verdict in 2024.
The ruling’s significance is clearest when it is read against the structure of the UNGPs, which rest on three pillars: Governments must protect people, companies must respect human rights, and those harmed must have access to a remedy. Human rights due diligence, part of the second pillar, guides how companies identify, prevent, and address human rights harms in their operations and supply chains. The ruling lands on the third pillar, access to remedy: It closes one of the last avenues for people harmed by corporate conduct to seek accountability in a U.S. court. It does not change what the UNGPs expect of companies; it removes one of the main ways the U.S. legal system backed up that expectation.
The ruling also points to a larger, longer-term question: whether labor and environmental protections are treated as costs to be minimized or as part of how companies do business. The difference shows in what companies pay suppliers, how they set delivery terms, and who they listen to when problems arise. It also shapes what good regulation looks like. Regulations that only penalize harm after the fact invite companies to price penalties in. Clear rules that apply to every business, and that make it safe for workers and communities to raise concerns, let companies compete on how well they run their business, not on how little they spend on the people and places their business affects. Lawyers help decide which view prevails in the contracts they draft and the way they respond when concerns surface.
Short of structural changes, there are also several concrete demands that civil society has made and legislation could address: access to remedy, a due diligence requirement for U.S. supply chains, and the use of litigation to silence critics.
Lawyers matter in each of these areas in two respects. As advisers, they shape the scope of corporate due diligence, determine what is documented, and influence whether troubling findings prompt action and, if so, what action. As advocates, they decide how to respond to those who raise concerns. The American Bar Association’s Resolution 604, adopted in August 2024, addresses both roles: It urges lawyers to counsel clients on human rights and environmental due diligence beyond minimum legal requirements and to abstain from abuse of process.
- Access to Remedy: After the Supreme Court’s June 23 decision in Cisco, Paul Hoffman, who argued the case for the plaintiffs, said it is now up to Congress to act so that victims of serious human rights violations by U.S. corporations can seek accountability in U.S. courts. Congress has considered this before. In May 2022, after Jesner and Nestlé had narrowed the ATS, Senators Dick Durbin and Sherrod Brown introduced the Alien Tort Statute Clarification Act (S. 4155), a step civil society groups welcomed. It would have given federal courts jurisdiction over these claims, wherever the conduct occurred, when the defendant is a U.S. national or lawful permanent resident or is present in the United States. The bill never received a vote and expired with that Congress. Congress should clarify the status of the ATS and provide a route to remedy.
- A Properly Resourced U.S. OECD Contact Point: National Contact Points are voluntary, non-judicial mechanisms. They cannot replace binding rules, and their findings cannot compel a company to act, but they remain an avenue for people harmed by corporate conduct when the courts are closed to them. Whether that avenue works depends largely on governments. OECD Watch and more than 130 NGOs have called on governments to strengthen their National Contact Points, and groups such as Accountability Counsel and Human Rights Watch have pressed for reform of the U.S. contact point since 2009. A staffed and empowered contact point, able to examine complaints credibly, would keep at least one avenue of remedy open.
Lawyers shape whether the process is used well. Advisers can counsel clients to take a complaint seriously, engage in good faith, and treat the process as a chance to address the harm, not a hurdle to outlast. Lawyers representing workers and communities can help them bring complaints and navigate the process. More broadly, lawyers advising companies should not treat the absence of liability as the absence of responsibility, and can counsel clients to maintain credible grievance mechanisms of their own.
- A Properly Resourced U.S. OECD Contact Point: National Contact Points are voluntary, non-judicial mechanisms. They cannot replace binding rules, and their findings cannot compel a company to act, but they remain an avenue for people harmed by corporate conduct when the courts are closed to them. Whether that avenue works depends largely on governments. OECD Watch and more than 130 NGOs have called on governments to strengthen their National Contact Points, and groups such as Accountability Counsel and Human Rights Watch have pressed for reform of the U.S. contact point since 2009. A staffed and empowered contact point, able to examine complaints credibly, would keep at least one avenue of remedy open.
- Supply Chains and Due Diligence: Remedy addresses harm after it happens; due diligence is meant to prevent it. Apart from forced labor enforcement, the United States has no general requirement that companies identify and address human rights harm in their supply chains. Congress could change that. The International Corporate Accountability Roundtable (ICAR) advocates for human rights and environmental due diligence laws in the United States, including a Foreign Corrupt Practices Act (FCPA) for Human Rights that would extend the FCPA framework to abuses in the supply chains of U.S. companies. A joint ICAR and CSIS report likewise called for mandates that shift the burden onto corporations, including through mandatory due diligence. Oxfam America has made a similar case for the government’s own purchasing, arguing that voluntary processes will not bring the desired changes and urging that robust human rights due diligence be mandatory for all federal contractors.
In the meantime, lawyers advising on due diligence decide a great deal about whether it protects people or only produces paperwork. They can scope diligence around the risks to affected people, not the minimum a rule requires; build it into supplier contracts, for example, through the ABA’s Model Contract Clauses, instead of leaving it in a policy; and push back when a legal sign-off is treated as the end of the analysis. Where clients take part in industry and multi-stakeholder initiatives, in-house and outside lawyers can make that engagement more meaningful and help the company find solutions when risks come to light. They also influence what gets documented and what follows when diligence turns up something troubling. Resolution 604 asks lawyers to counsel clients on human rights and environmental due diligence beyond minimum legal requirements, and that advice is where much of the profession’s influence lies. - Strategic Lawsuits against Public Participation(SLAPPs): Both remedy and prevention depend on people being free to speak about corporate conduct, and that freedom is increasingly under pressure. SLAPPs use litigation to silence critics rather than to win on the merits. They matter to business and human rights because they directly infringe on the rights of the people they target, including by violating freedom of expression, assembly, and association. They also undercut due diligence: The activists, journalists, and affected communities they target are often the source of the information it depends on, and when they are silenced, companies lose the signals the UNGPs expect them to look for. Civil society groups have asked Congress to provide a federal remedy for these suits. One proposal, the Free Speech Protection Act, was introduced in December 2024 by Senator Ron Wyden and Representatives Jamie Raskin and Kevin Kiley. It has drawn support from civil liberties and press freedom groups including the American Civil Liberties Union and Electronic Frontier Foundation, as well as Protect the Protest. It would let a federal judge quickly dismiss speech-silencing suits, award legal fees, and spare defendants prolonged, invasive discovery. State laws do not fill the gap: 34 states and D.C. have anti-SLAPP laws, but they vary widely, and the federal circuits are split on whether state anti-SLAPP laws apply in federal diversity cases. A federal law would need to be drafted so that its exceptions do not leave human rights advocates exposed when they speak about corporate conduct.
SLAPPs are one of the tactics increasingly used to defend companies against human rights claims and criticism. Others include burdensome discovery demands, threats of remedies a claimant is unlikely to obtain, settlement clauses that conceal evidence of ongoing harm, and cost demands intended to deter future plaintiffs. All can silence the activists, journalists, and affected communities whose information makes due diligence meaningful. Due diligence is hollowed out when the very voices that point to the abuse and the risks are silenced, and lawyers often have a hand in whether that happens.
Lawyers do not have to wait for a statute to limit these tactics, because the profession’s own rules already point in this direction. Though state versions vary, the ABA Model Rules (3, 2.1, 3.1, and 4.4(a)) leave room for moral and social judgment, do not require pressing every advantage, and bar frivolous claims and tactics meant only to burden others, so the profession’s own rules permit restraint and in places require it. What is missing is a legal culture and practice that gives the impact of legal advice and advocacy adequate weight.
In practice, that means asking hard questions early. Before drafting the demand letter, scaling the discovery, or insisting on a settlement term whose main effect is to silence or exhaust a critic, lawyers can ask the questions the Resolution 604 report puts to them: whether the advice or service is likely to cause or contribute to an infringement of fundamental rights, who would be affected and how severely, and, when a suit targets a watchdog organization or an individual, whether it would vindicate a legitimate legal right or instead burden people speaking up on a matter of public concern. They can counsel the client on the answers and, where the likely harm is egregious and persistent, consider whether to take or continue the representation at all.
Bar associations and the courts that supervise them need to act, though any limit on tactics has to respect a lawyer’s duty of loyalty and a client’s right to a vigorous and lawful defense. Within that constraint there is still room to act. Ethics guidance can clarify that lawyers’ existing duties not to bring baseless claims or harass opposing parties extend to these tactics. Courts and bar association disciplinary measures can enforce those duties, and together, guidance and enforcement can foster a legal culture of restraint and responsible litigation. Bar associations could examine the UK Solicitors Regulation Authority’s 2022 warning notice on SLAPPs, ask what has and has not worked in practice, and consider what would translate to U.S. professional rules. A legal sign-off does not settle a company’s human rights responsibility, and neither does a due diligence process that documents risk without acting on it. Zealous advocacy does not relieve a lawyer of asking what a tactic does to the people on the other side. With legislation unlikely to move soon, the profession’s own rules are among the few safeguards left, and lawyers, bar associations, and courts should make them hold. That work starts with lawyers, bar association leaders, and civil society talking to one another, and the American Bar Association’s Center for Human Rights conference, “Lawyers as Guardians of Human Rights: The UNGPs at 15,” is one place to start.
Zamira Djabarova is a senior legal adviser at the American Bar Association Center for Human Rights. Lana Baydas is a senior associate (non-resident) at the Center for Strategic and International Studies in Washington, D.C., and a program director at the American Bar Association Center for Human Rights.
This commentary reflects the authors’ own views. It has not been approved or reviewed by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole. Further, nothing in this piece should be considered as legal advice in a specific case.