The Campaign Draft “Treaty on Human Rights and Transnational Corporations and Supply Chain” and The OEIGWG Chairmanship Elements for a Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights: a Comparative Analysis
The document “New elements for the UN Business and Human Rights Treaty” is another one of a series of articles that HOMA has been elaborating as a result of its research regarding the elaboration of a binding international instrument on the subject of Business and Human Rights. This particular document stands out as an important contribution of the Center to the content of the Treaty in Business and Human Rights, objectively addressing two important points concerning the accountability of transnational corporations, namely: the direct obligation of transnational corporations and the accountability of multi-stakeholder companies.
The United Nations (UN) Working Group on the issue of Human Rights and transnational corporations and other business enterprises submitted to the Human Rights Council, on June 16th, the visit Report held in Brazil between December 7th and 16th, 2015. The visit – the first to Latin America and the Caribbean region – is part of the WG mandate, which has as one of its goals, besides promoting the dissemination and implementation of Ruggie’s Guiding Principles, the diagnosis of human rights situation in the countries where it goes. It also makes recommendations to national governments, enterprises and civil society.
The report makes important points about crucial issues concerning the current state of human rights protection in Brazil, especially with regard to major infrastructure projects, such as Belo Monte hydroelectric plant, to the agribusiness and to mega-events such as the 2014 World Cup and the 2016 Olympics. In this sense, several communities directly and indirectly affected by violations had the opportunity to describe their experiences to the Working Group in one of the five visited cities. Reports of violations that had occurred as a result of Belo Sun mining project on Xingu River, of the development projects in Sepetiba Bay, in Rio de Janeiro, of Suape Port industrial complex in Recife, Pernambuco, of the dams proposals for hydroelectric plants at Tapajós River, among others, were reported to the Working Group on these occasions.
Homa – Human Rights and Business Centre was also present at the meetings held in Rio de Janeiro and Mariana. This last city had just been the stage of one of the largest environmental disasters in the history of the country, with the disruption of Fundão dam in Bento Rodrigues district. There, it was handed a report made about the Açu Port Complex and its devastating impact on the population of the city of São João da Barra, in the state of Rio de Janeiro, which is also quoted in the published text.
The report produced by the WG also shows structural problems in the environmental licensing process of these projects. It expresses the group’s concern about the promiscuous relationship between private capital and the government in the country, criticizing the high degree of influence that large corporations have in the decision-making process and the formulation of public policies and legislation processes. Moreover, it exhibits the inconsistent position of the State, which acts as the major funder of such projects through the state development bank, BNDES.
Special emphasis is given to the weaknesses found in the public hearings, held as part of the environmental licensing process, and the need to take action to reduce asymmetries between the participation of affected people and those involved in these projects, such as large corporations and the State itself. This emphasis respects the Convention 169 of the International Labour Organization, which deals with the right of local people to be consulted previously, freely and in an informed way – from the early stages of planning – whenever an Administrative or Legislative Decision might affect their communities, their land or their way of life.
The Brazilian government, however, played a sad role during the Report presentation session. It tried to rebut data and facts already widely disseminated by non-governmental organizations and academic research centers with extensive advocacy and research tradition in the area. By trying to cover up or to mitigate the impact of repeated Human Rights violations by companies in our territory, the Brazilian State tarnish a strong standing tradition within the International System of Human Rights Protection, and whose logic should also be applied to the UN Human Rights Council. That is the recognition of the country’s responsibility in the event of said violations and in the proposition of improvement in prevention actions and in compensation for damages to those affected.
Voluntaristic approach and focus in the States
Despite significant criticism made by the Working Group, the simple reading of the report allows us to note the focus given to the state entity and the voluntary character that defines the Guiding Principles: out of the 32 recommendations made in the text, only 7 of them were aimed at corporations. Some stretches reinforce even further this position, especially in the analysis of the Mariana disaster case, in which the report states “Despite Samarco being responsible for repairing the damage, the federal government remains the primary insurer of human rights of the affected communities”.
The mining case in Mariana is particularly iconic in that sense, given that its own corporate structure is a classic example of one of the sides of the so-called architecture of impunity. It is defined as corporations use of elaborate chains of distinct legal personalities in order to protect its assets in case of serious human rights violations, such as what happened in Bento Rodrigues. The negotiation of the restructuring agreement between the enterprises and the State in this particular case was also distinguished for the lack of participation of the affected communities.
Given these statements, it behooves us to reaffirm the insufficiency of voluntary measures such as the Guiding Principles in the field of protection of human rights against abuses committed by transnational corporations. Against the climbing power and influence of transnational capital it is necessary to impose rules and binding policies that restore the primacy of respect and protection of human rights at the expense of investment protection. For this reason, the adoption of the resolution 26/9, establishing intergovernmental working group, with the mandate to prepare an international legally binding instrument, of Ecuador and South Africa’s initiative, represents an important milestone in the resumption of discussions on the objective imputation of the business entity, as well as the establishment of international cooperation instruments to obtain effective remedies for victims of violations.
In order to report this pattern of activity of companies in the national territory, which is enhanced due to the impunity from which corporations benefit, often with the connivance or complicity of the States where they develop their economic activities, Homa supports the creation of a binding treaty, joins the Global Campaign to Dismantle Corporate Power and Stop Impunity. And from today on it launches its campaign “1 minute for Human Rights” (1minutopelosdireitoshumanos.com/en).
The campaign consists of a series of videos with interviews conducted during the III International Seminar on Human Rights and Business, organized by Homa and Friedrich Ebert Foundation (FES) and held at PUC-Rio, between April 27th and 29th, 2016, that brought together more than 40 panelists from affected by Human Rights violations to member of non-governmental organizations, government officials and academics, both Brazilian and international.
In a number of occasions, victims of human rights violations committed by transnational corporations all around the globe perceived how their countries were incapable, and sometimes even unwilling to provide an effective response for the abuses perpetrated. This scenario is a direct consequence of some of the negative effects brought by economic globalization.
The vast majority of the proposed solutions to this issue until now – including the Guiding Principles proposed by professor John Ruggie – have failed dramatically to address the growing asymmetries of our time in a deeper level, for example, the predominantly territorial human rights law vs. a complex web of transnational business operations or the enormous political-economic power of transnational corporations vs. developing countries’ dependence on foreign investment.
In an effort to centralize the discussion around the victims, it is necessary to seek alternative regulatory measures to provide an effective remedy, surpassing the accountability obstacles usually faced in the field of human rights. In that sense, one of the best instruments available to improve accountability for violations committed overseas is the exercise of extraterritorial jurisdiction by the home States of these corporations. This paper aims to briefly analyze under which circumstances should States extend their powers beyond their own territory and how they should fulfill their obligations in this field.
Latin America is under a process of expansion of the mining and metallurgical sector, particularly Brazil, which placed second among the largest exporters of iron ore in the world in 2013. The economic dependence of the region in relation to this activity is alarming and subject to the vulnerabilities of high and low cycles in commodity prices, which generate structural crisis in the sector.
The 2003-2013 period represented a megacycle of commodities, under which the global im- ports of ores increased 630% (US$ 38 billion to US$ 277 billion). Over these years, the economic reliance of Brazil in export, mainly, of iron ore has deepened. Large-scale projects with government support in an attempt of boosting the economy were also carried out.
The project of the Açu Mine-Port is part of this logic, its original idea dating back from 1999, as an ambition of the government of the State of Rio de Janeiro, represented by former governor Anthony Garotinho. His government was succeeded by his wife Rosinha Garotinho, who continued the project, which has always been defended as of public interest. Through private meetings, there was the association of project with Eliezer Batista, who passed it along to his son, Eike Batista. From then, a complex system of business relations begins to unfold, making the accountability of those involved, in addition to the understanding of the case more difficult, but regardless, a problem that must be faced.
Between the16th and the 18th of November the IV United Nations Annual Forum on Business and Human Rights took place in the Palais des Nations, Geneva, and gathered over two thousand people to establish discussions from different perspectives about the International Agenda on Business and Human Rights.
Homa – Human Rights and Business Centre of the Federal University of Juiz de Fora – organized a panel on the first day of the event alongside international institutions, in partnership with professors Surya Deva (City University of Hong Kong), Sheldon Leader (University of Essex) and Bonita Meyersfeld (University of Witwatersrand).
Starting in 2015, September, The investigations for development of a series of papers about the National Action Plans on Business and Human Rights were motivated by the apparent need for a critical academic follow up of the process of elaboration of a NAP in Brazil, which is still in an early stage. This series aims to contribute with the players involved in this process, that’s why it was named “National Action Plans on Human Rights and Business: Inputs for the Brazilian Reality”.
According to the theoretical perspective of Homa, it was decided to place “Human Rights” before “Business” in the series’ title since we believe that these plans should be developed by putting the Human Rights dimension first, rather than business and market demands. According to this perspective, we understand that “theory is always directed to someone, with a specific purpose”. Therefore, it should be dealt with including the ideology it carries within. Thus, the Centre looks forward to conduct critical research, in order to provide an analysis about the social practices with potential for contributing to the reality’s transformation.
This first part’s title is “General Perspectives about National Action Plans on Business and Human Rights”, and its goal is to bring forth a general approach to the released NAPs, highlighting some problems and critics, aiming at the elaboration of a more objective instrument, capable of producing measurable, rateable and concrete results, gathering the civil society, social movements and victims of Human Rights violations.
The full content of the document is available in Portuguese, Spanish and English:
The Working Group of the United Nations (UN) on Human Rights and Transnational Corporations and Other Business Enterprises had, on a visit to Mariana, the goal of hearing the testimony of people affected by the collapse of Samarco Mining Company’s Fundão Dam. The tailings from Vale Mining Company (Vale) joint venture with the Anglo-Australian BHP Billiton (BHP Billiton) mine were released in the environment on November 5th, 2015, leading to Brazil’s greatest environmental disaster, making this a mandatory topic on the field of Human Rights and Business.
The potential drafting of a binding Treaty on Business and Human Rights raises some unclear issues both to the academy and to civil society. Aiming to contribute to the discussion on the theme in a national level, Homa is presenting a series of papers with brief comments about some of the most relevant points. The full content of the first paper, called “Treaty on Human Rights and Business: Two Major Issues” can be found on the links below, in English, Portuguese and Spanish versions: