Business and Human Rights Regulation after the UN Guiding Principles – a Critical Assessment
It is a pleasure to welcome back Dr René Wolfsteller and Dr Yingru Li on Rights as Usual. René is a Lecturer in the Department of Political Science at Martin Luther University Halle-Wittenberg where he analyzes the governance of business and human rights, sustainability, and climate change. Yingru is a Lecturer in Accounting at the Adam Smith Business School, University of Glasgow, and co-convenor of the Glasgow Human Rights Network. Her research focuses on corporate accountability for human rights and a sustainable economy. This post is theirs and it was first published on the Glasgow Human Rights Network’s website.
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Since the UN Guiding Principles on Business and Human Rights (UNGPs) were adopted by the UN Human Rights Council in 2011, they have diffused into policy frameworks, laws, and regulations across the globe and have become the lynchpin of the transnational business and human rights regime (BHRR). In a Special Issue of the Human Rights Review, we brought together a multidisciplinary group of human rights experts to critically examine the construction and effectiveness of key elements of that regime, including due diligence laws, National Human Rights Institutions and National Action Plans, as well as of proposals for a binding international treaty. Based on these analyses, we argue that the BHRR’s effectiveness is inhibited by three major constraints: the weak conception of corporate human rights accountability in the UNGPs; the insufficient regard to the perspective of victims of corporate human rights abuse; and the structural gaps and misalignments in the BHRR’s governance architecture.
The UN Guiding Principles and the Business and Human Rights Regime
Developed by the Special Representative of the UN Secretary-General (SRSG), the late John Ruggie, the UN Guiding Principles have over the past eleven years evolved as the focal point of a transnational regime complex for the regulation of business and human rights. The UNGPs were aimed at tackling and preventing business-related human rights abuses through a new regulatory framework based on three pillars: the state duty to protect against human rights abuse, including by third parties such as business corporations; the corporate responsibility to respect human rights; and the provision of access to effective remedies for victims of business-related human rights abuse. Despite persistent critique of their form and substance by many scholars and civil society actors, their endorsement by the UN Human Rights Council and other organisations has triggered a remarkable process of global norm diffusion, and it has encouraged the development of national systems for the regulation of corporate human rights conduct through instruments such as National Action Plans, National Contact Points, National Human Rights Institutions, as well as through the introduction of mandatory due diligence laws. Leading human rights scholars from political science, law, accounting, and philosophy have examined the construction and effectiveness of this business and human rights regime in a new Special Issue of the Human Rights Review on “Business and Human Rights Regulation After the UN Guiding Principles”. Their critical analyses suggest that the potential of the BHRR’s norms, actors, and instruments to bring about substantive and sustainable human rights change in the corporate sector is severely limited by three structural constraints:
(1) The weak conception of corporate human rights accountability in the UNGPs
The UNGPs rest on a weak and defensive conception of corporate human rights accountability as a social expectation of do-no-harm without proposing new binding obligations or sanctions for business. They define corporate human rights accountability as the responsibility to respect human rights, requiring business firms to “avoid infringing on the human rights of others” and to carry out “due diligence”, which means “to identify, prevent, mitigate and account for how they address their adverse human rights impacts.” (UNGPs 11 and 17) This confined definition was the deliberate outcome of a strategic process of international norm construction by Ruggie, as the contributions by Brigitte Hamm and by Benjamin Gregg demonstrate. Through a worldwide consultation process, Ruggie sought to establish the broadest possible consensus among stakeholders, especially from governments and the business community, in order to create a realistic prospect of support and implementation of the new framework by key actors on the ground. While he succeeded in establishing the UNGPs as the BHRR’s normative lynchpin, the diffusion of their norms and standards meant that subsequent regulatory instruments rarely went beyond the UNGPs’ limited do-no-harm approach.
(2) Insufficient regard to victims and vulnerable groups
The contributions to the Special Issue reveal a recurring pattern in the construction of the BHRR’s norms and instruments: victims’ groups and people at heightened risk of rights abuse are often not adequately represented in consultations and negotiation processes, as business interests often tend to be prioritised over the interests of those groups. For instance, the consultation process leading to the UNGPs did not involve visits of places where corporate human rights abuses had occurred and, hence, no encounters with people directly affected. Civil society organisations and victims’ groups also find it difficult to make their voices heard in the negotiations for an international business and human rights treaty because, in order to get access to the meetings of the UN Working Group in Geneva, NGOs have to acquire a consultative status with the UN Economic and Social Council through a selective accreditation process. The systematic study of the construction of National Action Plans for business and human rights by Claire Methven O’Brien, John Ferguson and Marisa McVey shows that most NAPs have not been based on stakeholder mapping exercises to identify relevant constituencies, and only a minority of states has taken steps to get particularly vulnerable groups involved in NAP development. The prioritisation of business interests over those of potential victims of corporate human rights abuses became visible also in the drafting process of the French Duty of Vigilance Law when the initial proposal to shift the burden of proof from victims to companies was abandoned before the passing of the bill – a change that created a considerable barrier to the law’s effective enforcement, according to Almut Schilling-Vacaflor.
(3) Structural gaps and misalignments in the BHRR’s governance architecture
The articles in the Special Issue also highlight significant implementation gaps and misalignments in the BHRR’s governance architecture regarding the envisaged functions vs. actual competences and capabilities of specific actors and instruments. René Wolfsteller demonstrates that most National Human Rights Institutions are currently unable to fulfill the role of state-based, non-judicial grievance mechanisms as originally envisaged by the UNGPs because the key international steering instrument for NHRIs’ design and functions – the Paris Principles – does not prescribe strong complaints handling powers against corporate actors; hence, most NHRIs are lacking this competence. Moreover, National Action Plans on business and human rights are often characterised by misalignments between their general aims and a lack of specific indicators and measurable targets, as well as by structural gaps in the capacity of states to effectively monitor and evaluate NAP implementation. And although the French Duty of Vigilance Law was the first comprehensive national due diligence regulation rendering companies and their subsidiaries liable for human rights abuses and environmental damages in transnational supply chains, the law suffers from a lack of state commitment to monitor its implementation and to sanction corporations’ non-compliance.
All of these intended and unintended gaps and limitations inhibit the BHRR’s potential to bring about effective human rights change in the corporate sector as they allow business actors to evade accountability through strategic ignorance, selective engagement or minimal compliance, as Alvise Favotto and Kelly Kollman show in their case study of the largest UK-based TNCs. However, recent proposals for a European Directive on Corporate Sustainability Due Diligence, as well as for an international business and human rights treaty, have restored hope for more stringent and coherent transnational regulations. Largely resembling the “progressive model” of corporate human rights accountability proposed by Nadia Bernaz, the latest treaty draft would – if adopted – not only establish a more ambitious benchmark. It would also present a crucial step toward the creation of a level playing field for a global economy more human rights friendly.
Human Rights Review, Vol. 23, No. 1 (2022), Special Issue:
“Business and Human Rights Regulation After the UN Guiding Principles”
Guest Editors: René Wolfsteller & Yingru Li
Table of Contents
by René Wolfsteller & Yingru Li
Beyond Due Diligence: The Human Rights Corporation
by Benjamin Gregg
by Alvise Favotto & Kelly Kollman
by Almut Schilling-Vacaflor
by René Wolfsteller
National Action Plans on Business and Human Rights: An Experimentalist Governance Analysis
by Claire Methven O’Brien, John Ferguson & Marisa McVey
by Nadia Bernaz
by Brigitte Hamm
Business and Human Rights in the New Chilean Constitution? Implications for Chile and Latin America
It is a pleasure to welcome Moisés Montiel Mogollón and Salvador Herencia-Carrasco to Rights as Usual. Moisés Montiel Mogollón (@MoisesMontielM) is an adjunct professor of International Law at Universidad Iberoamericana and Universidad Panamericana in Mexico and Managing Partner at Lotus Soluciones Legales. Salvador Herencia-Carrasco (@Sherencia77) is the Director of the Human Rights Clinic, HRREC and part-time professor at the Section de Droit Civil at the University of Ottawa. This post is theirs.
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In July 2021, a democratically elected Constitutional Assembly was sworn in Chile. The mandate is to draft a new Constitution to replace the 1980 text adopted under the Pinochet regime. To enter into force, the new Constitution must be approved via referendum, which should take place in the second half of 2022.
Since the Constitutional Assembly began its work, both constituents and the public have tabled proposals of norms to be included in the new Constitutional text. In December 2021, eight members of Chile’s Constitutional Assembly introduced a bill to include a Business & Human Rights (BHR) article in the new Constitution. The proposal seeks to address a high number of socioenvironmental conflicts caused by transnational corporations (TNCs) as well as breaches to privacy caused by the growing control of information and communication technology services by private businesses (paras. 3 and 4).
The bill was made public in January through the social media accounts of Mr. Gaspar Domínguez, the new Vice-President of the Chilean Constitutional Assembly and a co-sponsor of the bill. If approved, this article would raise to a constitutional level the obligations of businesses to respect human rights and the environment and to prevent, mitigate, and remedy the human rights and environmental impacts of their activities on individuals and communities. The proposal states the following:
“Duties of Businesses. Businesses must respect fundamental rights and prevent, mitigate, and remedy any activities that bring about negative consequences on the full enjoyment of human rights.”
To our understanding, this is the first bill that seeks to include in a Constitution a norm that mirrors the core principles of the UN Guiding Principles on Business and Human Rights (UNGPs). Irrespective of the bill’s outcome, the proposal should be celebrated as an important precedent as it brings the BHR discussion to a Constitutional level. The purpose of this post is to present the bill and explain why it makes sense in the Chilean context, and to explore what this development could mean for Chile’s and Latin American Constitutional law, and particularly for public interest litigation.
BHR legislation in Chile and Latin America: Not much to celebrate
Almost 11 years since the adoption of the UNGPs, no Latin American country has adopted specific BHR legislation. Moreover, only Colombia, Chile and Peru have adopted a National Action Plan (NAP), while Mexico has included a chapter on BHR in its current National Human Rights Plan. In a region with multiple BHR problems related to extractive industries, precarious labour conditions, lack of access to effective legal remedies and attacks on environmental defenders and Indigenous leaders, the situation is rather bleak.
To justify their proposed bill, constituents argue that, despite having had a NAP since 2017, its impact has been minimal (para. 7). In addition, the Chilean Executive has not adopted any legislation implementing the UNGPs and no significant change in environmental, labour, natural resources or Indigenous Peoples regulations have been made (para. 8). The proposal makes specific reference to the UNGPs to ensure that companies operating in the country, particularly TNCs, adopt a responsible business conduct and can be held accountable if they do not (paras. 9-13).
The proposal rests on three main ideas: (i) the growing influence of private actors in strategic sectors of the economy, like mining; (ii) the increasing involvement of the private sector to provide public goods such as health and education; and (iii) the lack of regulations from the government to ensure that business activities do not have a negative impact on human rights and the environment.
For the constituents, including this article in the new Constitution would contribute to achieve a “socially sustainable globalization” (para. 5), while focusing on the need to establish due diligence processes by private and public businesses (para. 13).
Why Chile? Because “No son 30 pesos, son 30 años”.
In 2016, Chileans protested against the privatization of education, including higher education. Chile has been one of the leading economies in Latin America and it remains a model for the region, but the cut in public spending and the mercantilization of public goods has had adverse impact, mainly on low-income families and vulnerable groups like Indigenous Peoples. In October 2019, the increase of 30 pesos (approximately 40 USD cents at the time) in public transportation fees was the spark that ignited nation-wide protests and resulted in the call for a Constitutional Assembly to broaden the social scope of State activity.
Chile suffers from massive disparities in terms of income, wealth, and well-being. Chile only allocates 11.4% of its GDP to social programs. The only OECD country with a lower allocation is Mexico (7.5% of the GDP), while the average social spending in the OECD is 20%. At the same time, Chile’s combined corporate income rate is one of the lowest of the OECD countries, with an average of 10%.
Recently this blog published a post about the case of Martina Vera that went to the Inter-American Court of Human Rights (IACtHR). Martina is a teenage girl with serious disabilities. Her family hired a private health insurance policy (ISAPRE) to keep her alive. The ISAPRE unilaterally cancelled her policy because of the costs incurred, putting her life at severe risk. The story is more than one about the horrific actions of a cut-throat business. It is about how the laws in force at the time allowed such behavior from private businesses. Stories like Martina’s happen almost daily in Chile (and other countries in Latin America), affecting those that need quality public services the most. Therefore these protests were not just about 30 pesos, but about 30 years of economic growth with indifference and without adequate social safety nets, including BHR regulations.
The Constitutional Authority Argument: An opportunity for Latin America
When it comes to BHR standards at the international level, a problem is that the UNGPs are not legally binding and do not generate new international state obligations. Despite the ongoing negotiation for a BHR treaty, and significant advances in this process (see new draft), there are no legally binding instruments in the field. In the Latin American context, the case law of the IACtHR has contributed to link the UNGPs with the American Convention on Human Rights but that is not enough to usher in necessary legal and policy changes in the continent. That is why the Chilean constitutional proposal is a formidable step. It would create a truly binding UNGPs-inspired norm and elevate the UNGPs from mere soft law to constitutional law.
Including the UNGPs’ language in the Constitution would oblige the state to adopt the necessary measures to prevent, and to protect against, the potential negative human rights’ impacts of businesses (by way of regulation) and have them honor their duties to respect, prevent, mitigate and remedy. In Latin American constitutional tradition, a hierarchical norm of this kind should guarantee the adoption of specific laws, policies and recourse measures.
If adopted, such norm could have a triggering effect in the region. Since the 1990s, Latin American Constitutionalism has developed a rich synergy in the recognition of rights and the adoption of Constitutional recourses like the amparo or tutela (this is a recourse that seeks the protection of fundamental rights not related to personal freedom). In addition to the case law of the IACTHR, it is now a common practice to see Constitutional Courts and Supreme Courts using standards and decisions from other Latin American courts to decide on similar matters. This Ius Constitutionale Commune is a rich tradition that has also had a significant impact on the case law of the IACtHR. Therefore, the adoption of a Constitutional norm on BHR could have a spill-over effect in other Latin American countries, particularly through public interest litigation.
Additionally, should other States follow suit, this norm could signal the emergence of a new customary rule building on the three pillars of the UNGPs, at least at the regional level. Although a new rule of customary law would require general practice and opinio juris and is a long way off, the inclusion of a constitutional level BHR rule would be a precedent too big to ignore in Latin America. The UN International Law Commission in its 2018 Draft Proposal on Identification of Customary International Law attributes significant weight to the inclusion of norms in domestic legislation. After all, what better evidence is there of a norm being “accepted as law” as per the formulation in Article 38 of the ICJ Statute, than its inclusion in domestic legal systems, especially at the constitutional level.
Keeping an eye on the Horizon
The Constitutional Assembly is now deliberating on the text. Constituents have until July 2022 to finalize a proposal and 60 days later, Chileans will have to vote in favour or against the new Constitution by referendum. The new government, led by Mr. Gabriel Boric, will assume office in March 2022, and was elected on a platform of social change. In this context, his party is likely to approve a BHR norm and its corresponding implementing legislation. That said, by no means is this a done deal and it remains to be seen whether the proposed bill will make it into the new Chilean Constitution. If it does, it will probably translate into more responsible business practices and diminish negative impacts on the human rights of Chileans, perhaps bringing about a slightly less unequal society where people come closer to owning their rights. If that is the case, this BHR rule will likely become a banner of a new, responsible, and socially-mindful business paradigm that addresses the prominent root causes that the constitutional renewal.
One thing is clear, in a context of great social inequality, adding a BHR norm to the new Constitution makes sense. If successful, this initiative holds tremendous potential. It could spark a regional conversation on BHR standards beyond the IACtHR. The international normative implications of such a dialogue could very well turn Latin America into a stronghold for the UNGPs and the BHR movement.
Business and Human Rights before the Inter-American Court of Human Rights: 2021 in Review and a Look Forward to 2022
It is a pleasure to welcome (back) Salvador Herencia-Carrasco and Kelsea Gillespie to Rights as Usual. Salvador Herencia-Carrasco (@Sherencia77) is the Director of the Human Rights Clinic, HRREC and part-time professor at the Section de Droit Civil at the University of Ottawa. Kelsea Gillespie (gill006@uottawa.ca) is a J.D. candidate at the Faculty of Common Law, and research assistant at the Human Rights Clinic of the University of Ottawa.
This post is theirs.
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In 2021 the Inter-American Court of Human Rights (IACtHR) released two judgements with significant business and human rights (BHR) implications: Miskito Divers vs. Honduras and Martina Vera vs. Chile. Both decisions build on the 2015 Kaliña and Lokono vs. Suriname ruling, where the IACtHR used the UN Guiding Principles on Business and Human Rights (UNGPs) to highlight a state’s duty to assure that private businesses fulfill human rights and environmental regulations. Miskito Divers and Martina Vera are new decisions from the Court that engage with the UNGPs, and while the outcomes of both decisions are welcome, the application of the UNGPs and BHR principles leaves room for improvement.
The Miskito Divers and Martina Vera cases take small steps toward tying the UNGPs to the American Convention on Human Rights (ACHR) and to a lesser degree, to the San Salvador Protocol on Economic, Social and Cultural Rights. The IACtHR seems willing to engage with BHR principles in its reasoning but timid about introducing more concrete reparation orders to address the state’s role in regulating business conduct vis-à-vis human rights. In this post we review the 2021 decisions and make recommendations, as the Court is set to consider new BHR cases in 2022.
Miskito Divers : Labour rights and responsibility of businesses
This case addresses the health and labour conditions of Miskito divers working for lobster fishing companies operating in their territory. The case resulted in a friendly settlement between the state and the petitioners, which was reviewed and accepted by the IACtHR. The main focus of the Court’s decision is the health, safety, and working conditions of the victims, but in its review of the settlement, the IACtHR uses the UNGPs to establish some general obligations of states regarding BHR.
First, the Court reiterates the state duty to prevent all human rights violations by private entities operating under its jurisdiction (para. 48). This duty includes the adoption of specific laws and policies, including due diligence (para. 49) and reparation procedures (para. 50). These are broad statements that build on the first and third pillars of the UNGPs but lack specific reference to the situation of the Miskito divers.
Second, the IACtHR uses the second pillar of the UNGPs to state that businesses should bear the primary responsibility for ensuring their activities respect human rights (para. 51). This includes measures such as internal policies that are constantly evaluated, mitigation strategies, and accountability mechanisms that also apply to supply chains (para. 52). Once again, this broad language impairs its impact on the specific case and the Court fails to consider other key BHR governance instruments and internationally-recognized labour standards.
Finally, the Court did not order any specific measure obligating Honduras to enact specific laws or policies applicable to all corporations to observe human rights and BHR principles. This outcome would have been possible under Art. 63 of the ACHR related to reparations. Such an order could have gone a long way towards not only ensuring non-repetition in this case, but also preventing future rights violations by corporate actors.
The only reference to such a measure is a commentary on a reparation regarding the adoption of certification plans for safe fishing (para. 162.6.k), where the Court provides that Honduras must adopt new fishing regulations that includes “human rights policies, due diligence processes and processes to remedy human rights violations” (para. 138). The Court specifies that businesses should be made responsible for the financial cost of implementing new safety and oversight mechanisms. However, given that the order to adopt new fishing regulations is not integral to the overall judgment, it is doubtful whether the state will enforce this requirement for businesses.
Martina Vera: Health and the duty of private health insurances to respect human rights
Martina Vera is a case that deals with the right to health of a child with a disability and the state’s duty to assure her right to health. Martina was born with a rare condition known as Leigh Syndrome, which chronically affects mental and psychomotor abilities. In her hometown of Arica, the public hospital did not have the expertise to provide adequate treatment, forcing her parents to contract with a private health insurance policy (ISAPRE) in 2007. In 2010, the ISAPRE unilaterally cancelled the policy because Martina’s condition was “progressive and irrecoverable” (para. 128). The cancellation, which put her life at severe risk, was technically legal and done according to Chilean regulations at the time, as confirmed by the Chilean Supreme Court.
Martina Vera is an important decision because it develops the right to health of children with disabilities and the role of the state to assure the right to health of its population. But as the IACtHR analyzes the right to health, social security, and whether Chile fulfilled its duty to ensure that private corporations offer a quality and efficient health service (para. 100), a specific BHR approach is noticeably absent.
As in Miskito Divers, the IACtHR refers to the UNGPs (para. 84-88), but the focus is on the state’s duty to regulate and oversee that private businesses offering public good services – like healthcare – do not affect the rights to life and personal integrity of individuals (para. 89). Noticeably, in Martina Vera the Court chose not to analyze issues like conflict of interest or the mercantilization of public goods, which have a significant impact on the privatization of public goods.
For example, regulating private health insurance is highly technical and many of the experts in the field move between regulatory agencies and the companies offering such services, resulting in a “revolving door” effect in the industry. The fact that at the time legislation allowed health insurance companies to cancel client policies when deemed too expensive should have raised questions from the Court during the evidence stage. The Court could have asked Chile for more information on the process regarding the drafting of this legislation, as well as a study regarding the economic impact of these regulations on the rights of vulnerable people. Most likely, the result would have showed that the privatization of public goods leads to economic factors prevailing over the human rights of the beneficiaries.
The lack of analysis of the root causes contributing to Martina’s case becomes more evident in the reparation orders, where the Court did not include any specific measure regarding BHR. Even though the Court recognized that the ISAPRE knew about the condition of Martina Vera and still cancelled her policy (para. 129), the Court did not order Chile to review its current regulation of private health companies or to adopt policies to assure a prompt access to effective legal remedies by users of the ISAPREs.
Conclusions: Diagnosing and treating the root causes of BHR cases
In Miskito Divers and Martina Vera, the IACtHR advances the integration of the UNGPs with the ACHR, particularly with Art. 1 (obligation to respect rights), Art. 2 (adoption of internal measures) and Art. 25 (right to judicial protection). These cases show that where a private business impacts the rights of an individual, the IACtHR is willing to evaluate the merits of the case against state requirements to protect and uphold human rights and to provide access to remedy under the ACHR.
However, the Miskito Divers and Martina Vera cases demonstrate that while the Court is willing to engage with the UNGPs in its reasoning, it is yet to apply BHR principles consistently in reparation orders. If a state is to achieve not only non-repetition of the same human rights violation but also is to prevent future violations, more proactive reparations orders would assist a state in fulfilling its duties under the ACHR.
To properly address the lack of specific regulation on BHR in the Americas, the Court needs to take a direct approach in confronting the root causes of cases like Miskito Divers and Martina Vera. The Court will have a chance in 2022, in three cases with BHR implications: the U’wa Indigenous Peoples vs. Colombia (extractive projects on Indigenous land), the Tagaeri and Taromenane Indigenous Peoples in Voluntary Isolation vs. Ecuador (environment and extractive licenses on naturally protected areas) and La Oroya Trail Smelter vs. Peru (environment and health of population).
There is an obvious cost to introducing more regulation requiring businesses to respect and protect human rights in the marketplace, but as demonstrated by Miskito Divers and Martina Vera, the human cost of not doing so is higher.
Remembering Prof. John Ruggie
Prof. John Ruggie has passed. Those in the business and human rights world who knew him well have already published beautiful tributes. Mine will be less about the man and more about his work. I only briefly met him in person in 2013 when he came to London for a book signing event.
After that we were in contact by email every few years, most recently this summer. I invited him to review a book for the Business and Human Rights Journal and he kindly accepted within hours.
I didn’t know him personally and yet his death is hitting hard.
I got into business and human rights in 2010. I was four years post-PhD having worked mostly on the death penalty and International Criminal Law. I was fortunate to have a permanent academic job. And yet I was profoundly unhappy in my professional life. I was only making half-baked contributions. My teaching load was insane and I only occasionally connected with students about anything. It all felt pointless.
My then boss, the wonderful Joshua Castellino (“what would Joshua do?” I still ask myself every time I need to make a difficult decision), had the idea of creating a programme about human rights and business. I can’t remember how it happened but all of a sudden I was spending most of my time setting up the programme, writing accreditation documents and pushing them all through validation. For three years I led our pioneering Master’s programme in human rights and business. This got me invited to New York, to the first meeting of what would become the Teaching Business and Human Rights Forum, led by two visionaries: Joanne Bauer and Anthony Ewing.
For a few years, I was out of my depth. I had zero publication in the area. But I had the enthusiasm and at the time, given my privileged position, it was enough.
In 2011, the UN Human Rights Council adopted the UNGPs, John Ruggie’s central contribution as UN Secretary-General’s Special Representative. The UNGPs focused academic discussion and advocacy efforts. Business and Human Rights went from catchy phrase to academic field. My field.
While working in business and human rights I have found my purpose, my true professional family, my crew, my… network as I stupidly write in cover letters.
I owe John Ruggie some of the most solid and trusting relationships of my life. Without those, I don’t even know if I could do my job, let alone enjoy it the way I do most of the time. I am grateful beyond words for his work and vision.
Mining permits in Roraima and the state duty to protect under the UNGPs : a business and human rights case before the Brazilian Supreme Court
It is a pleasure to welcome Danielle Anne Pamplona (@DaniAPamplona) to Rights as Usual. She is a Professor of Law and Head of the Human Rights Clinic at Pontifícia Universidade Católica do Paraná (PUCPR) in Brazil. She is also the Vice President of the Global Business and Human Rights Scholars Association, and Vice Director of the Latin American Academy for Human Rights and Business. This post is hers.
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Introduction
In a case regarding mining licenses laws in the northern state of Roraima, the Federal Supreme Court (STF) of Brazil has the opportunity to address – for the first time – the duty of the state to protect human rights and the environment in the context of business and human rights (BHR). The case (ADI 6672) shall determine if gold mining permits granted without Environmental Impact Assessments (EIA) are in accordance with the Brazilian Federal Constitution and the American Convention on Human Rights.
Since 8 February 2021, the state of Roraima has loosened its environmental regulations to foster mining projects. Among the different measures adopted, the law has removed the prohibition of using mercury in mining operations, contravening the Minamata Convention, which is an international treaty designed to protect the health and environment from the adverse effects of mercury. Brazil has been a party to this treaty since 2017. Although there is no date for the STF to release a merits judgement, in February 2021 the Court adopted a precautionary measure, indefinitely suspending the application of the new law.
The case has been litigated as a breach of the rights to a healthy environment, to health, physical integrity and life. However, interveners could have stressed the serious implications this case has for the field of BHR in Brazil. The Human Rights Clinic at Pontifícia Universidade Católica do Paraná (PUCPR), which I lead, has partnered with the Human Rights and Environmental Law Clinic of the State University of Amazonas (UEA), led by Profa. Silvia Loureiro; the Laboratory of Molecular Pharmacology of the Federal University of Pará (UFPA), led by Prof. Maria Elena Crespo López and the Centre for Comparative Legal Cultures, Internationalisation of Law and Justice Systems (CCULTIS), led by Prof. Jânia Saldanha, to prepare an amicus curiae brief.
We were challenged to articulate the BHR implications of this case and to use the UN Guiding Principles on Business and Human Rights (UNGPs) to shed light on the content of the State duty to protect human rights. This post summarizes the importance of understanding this legal discussion from the perspective of BHR, presents and analyzes our contribution to the amicus curiae brief and reflects on the State’s responsibility to protect human and environmental rights.
Gold mining and the use of mercury
Gold exports are a fundamental activity for the Brazilian economy. In 2020 Brazilian gold exports grew 36% compared to 2019: from US$3.6 billion to almost US$5 billion, with a volume growth of almost 8%, from 92 tonnes to 99 tonnes in 2020. Gold export, to Canada alone, grew 148% with respect to 2019. Gold mining, especially on a small scale, uses mercury. Liquid at room temperature, mercury does not decompose. Instead, it is transformed to adapt to the environment: air, water or land. When heated, its gaseous form remains in the atmosphere until it falls with the rain and then contaminates the land and water outside gold mining areas. Because of the nature of this element, 81% of fish collected, among the most consumed by the local population in northern states, are contaminated by mercury. The Amazonian population presents very high levels of mercury in the body, and even people living far from the mining centres are contaminated. Although mercury has been banned in several countries, the February 2021 statute adopted by the state of Roraima authorizes the use of mercury for gold extraction against scientific evidence.
One of the main problems is that this statute miscategorizes beneficiaries. In principle, the law is meant to help prospectors (garimpeiros). Historically, prospectors are small-scale, traditional miners who extract gold located in the riverbanks. Mining laws are lenient towards them as they work in harsh conditions to provide a subsistence to them and their families. However, this artisan view of gold mining in the Amazon forest is no longer accurate.
Gold mining involves a variety of highly mechanized extraction techniques, where production is structured in such a way that it configures the entrepreneurial activity itself. Rafts, suction dredges, loaders, crawler tractors and hydraulic excavators are examples of the machinery used for gold extraction. These are complex procedures that require specialized machinery and techniques that have severe human and environmental impacts.
Yet, the aforementioned statute extends protections intended for small-scale miners to the large businesses who use these techniques. This is a clear distortion of federal laws to the benefit of corporations. The statute facilitates the exploitation of gold at low cost at the expense of socio-environmental rights.
The duty to protect, taking all measures possible and fostering coherence
As readers of this blog know, the UNGPs clarify that States have a duty to protect rights vis-à-vis business activities. In addition to the UNGPs, the Special Rapporteur for Economic, Social, Cultural and Environmental Rights of the Inter-American Commission states that the right to sustainable development is centred on the well-being and rights of people and communities and not on economic statistics.
The State has a duty of diligence and must ensure that its measures do not allow human rights violations. In the Kalinã and Lokono People vs. Suriname, the Inter-American Court of Human Rights (IACtHR) used the UNGPs to reinstate that States have the responsibility to protect human rights against violations committed in their territory and/or jurisdiction by businesses. The Inter-American Commission on Human Rights takes the same view. In the Inter-American Human Rights System, to determine the responsibility of the State, it is sufficient to show the lack of due diligence to avoid such breach or by failing to punish those responsible. This has been the understanding of the IACtHR since its first case.
The UNGPs establish that the State has the duty to indicate to companies what conduct it expects of them. This responsibility lies within the Brazilian State as a whole, and at this moment, it is in the STF’s hands. Can the STF guarantee that Brazil complies with its international commitments and constitutional duties? In our view, the statute breaches the right to health of people immediately around the mines and those far away but who suffer the effects of mercury contamination, all in the name of economic development. The Brazilian Constitution expressly states that economic development should not happen at the expense of human dignity and the protection of the environment.
The UNGPs also establish the need for political coherence between the organs of government and between the different levels of administrative and political organization – especially in a federal State. In this case, Brazil assumed an international commitment to the protection of human rights and cannot allow the executive or legislative branch of a member state to take a decision to the contrary, following Article 28 of the American Convention Federal Clause. In this sense, the Special Rapporteur for Economic, Social, Cultural and Environmental Rights of the Inter-American Commission has stated that the State’s duty of prevention “requires the corresponding authorities to adopt appropriate measures to prevent the real risks against human rights arising from the activities of companies”. Among these authorities are the National Congress and the Judiciary.
Final comments
This case enables the judiciary to comply with the State duty to protect human rights by ensuring that the local legislature indicates to companies the conduct they should adopt, which is to not use mercury for gold extraction. It is, without a doubt, a great opportunity for the judiciary to frame mining regulation as a BHR issue, opening up the possibility of defining the content of the Brazilian State’s duty to protect health and environmental rights from corporate abuses.
My name is Nadia Bernaz and I am Associate Professor of Law and Governance at Wageningen University in the Netherlands.
My main area of research is business and human rights. I look at how corporations and businesspeople can be held accountable for their human rights impact through international, domestic and transnational processes.