Written by: Ana Laura Figueiredo
Continuing the series on the National Agenda, the National Human Rights Framework and companies: Bill 572/2022, and the limits of existing National Action Plans, in this post we will analyze the process of construction of this bill taking into account the history of the Agenda, which has been detailed in recent posts, in addition to describing its structure, main points of content and developments in its presentation to legislative bodies and civil society.
The text was written based on a previous paper from Homa with the support of the Friedrich Ebert Brasil Foundation and had the collaboration of several civil society organizations such as Central Única dos Trabalhadores, Movimento dos Atingidos por Barragens and Friends of the Earth Brasil, as well as social and parliamentary movements. The bill was signed by Fernanda Melchionna (PSOL/RS), Áurea Carolina (PSOL/MG), Carlos Veras (PT/PE), and Helder Salomão (PT/ES) and filed on March 14, a significant date: it is the International day of action against dams, and for rivers water and life.
With this overview, it is possible to perceive that the elaboration took place through a participatory democratic process, which already differs from the constitutive processes of the existing National Action Plans and the Brazilian project pursued by the government, which was exposed in the previous post. Thus, to oppose the proposal that establishes the voluntariness of guiding principles, disregards the development of the National Agenda, and fails in democratic representation, Bill 572/2022 was presented at a press conference on March 29 to publicize the Agenda and secure popular and parliamentary support for its support.
Campaign for the approval of the PL
It should be noted that the search for the approval of this Framework Law follows the efforts to consolidate an International Treaty on Business and Human Rights, which at the end of last year went through the 7th Session at the Human Rights Council in Geneva, with the presentation of the 3rd draft version.
The campaign entitled “This land has a law – Rights for peoples, obligations for companies” was built by GT Corporations, a working group from the civil society, and was launched at CUT Headquarters in May 2022 and during the MAB meeting at the Pan-Amazonian Forum (FOSPA).
Structure and main points of Bill 572/2022
The first chapter, which establishes general provisions, seeks to establish the need to make the entire production chain responsible, since, when it comes to the structure of transnational companies and their production model, the fragmentation of processes until the final product is evident and, thus, increases the probability of human rights violations in different territories and of large corporations claiming ignorance while increasing their profits. Another topic related to production chains is the discrepancy between countries in the global north and south with the so-called race to the bottom, given that southern countries are more susceptible to hosting branches, granting tax benefits, and environmental licensing based on a discourse of seeking development that does not bring improvements to people’s lives and ends up destroying territories. This logic of financial capitalism strengthens what we call the architecture of impunity and opens up the legal, economic and political asymmetry between those affected and companies, making this accountability extremely important.
The primacy of human rights is very clear in the bill text, and one of the points that deserves to be highlighted is the right to consent, which goes beyond the right to prior, free and informed consultation, as it allows effective participation and respect for the territories and knowledge of the peoples when we consider the influence of intersectionality in the choice of spaces for the installation of companies.
In the second chapter, the obligations of companies and the State are established, and the idea of mitigation of risks and violations by companies, which was introduced by the UN guiding principles, is replaced by the concept of obligation to respect and not violate. The guarantee of full reparation, based on the jurisprudence of the Inter-American Court of Human Rights, is ensured as a mechanism for overcoming corporate social responsibility, thus, self-monitoring is also left aside and greater supervisory power is granted to unions, which demonstrates a deepening and an expansion in this aspect that was previously governed only by due diligence.
The third chapter, which determines the rights of the people, groups and communities affected, has its text based on Resolution 5/2020 of the National Council of Human Rights, and covers gaps related to full reparation, going beyond pecuniary recovery. The recognition of hypo sufficiency of those affected, which accompanies the asymmetry of force between them and the companies, is important for the shifting of the burden of proof to be applied. It is extremely important to understand that those who have their rights violated are not mere objects of legal proceedings and must be recognized as subjects of rights. In this way, the recognition of the collectivity in the territories is ensured to guarantee collective representations that meet the specificities of the peoples and the adoption of the principle of the centrality of the victim’s suffering is established, consolidated by the decisions of the jurist Antônio Augusto Cançado Trindade.
The fourth chapter looks into the issue of prevention, monitoring and reparation mechanisms, and seeks to invert the logic of power, which guarantees greater protagonism for those affected. This role can be seen in the determination of the management of a Fund that should be created by companies in cases of violation to meet the basic needs of those affected until full reparation.
Finally, bill 572/2022 presents its final provisions and what deserves to be highlighted from its content as a whole is the attempt of radical democratization within the National Agenda for Human and Business Rights, an essential milestone for the defense of human rights in Brazil and the world.
So far, the project has already passed through the Commission on Human Rights and Minorities and has been redistributed to the Commission for Work, Administration and Public Service and to the Commission for Economic Development, Industry, Commerce and Service, at the Chamber of Deputies.
The bill’s process is still in progress, so this blog series will continue according to the evolution of the process in the Chamber of Deputies until the moment of the vote. We will analyze the developments and the campaign for the approval of Bill 572/2022, taking into account the political scenario around the Human Rights and Business Agenda in Brazil.
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