Although ESG (which stands for Environmental, Social and Governance) is a popular topic, few are aware of the document “Guiding Principles on Business and Human Rights”. Launched in 2011 by the United Nations, the text has influenced countless laws in several countries around the world to this day.
This text provides a summary of this document.
THE STATE DUTY TO PROTECT HUMAN RIGHTS
The document begins by stating that the state must protect human rights and establishes the first foundational principle:
1. STATES MUST PROTECT AGAINST HUMAN RIGHTS ABUSE WITHIN THEIR TERRITORY AND/OR JURISDICTION BY THIRD PARTIES, INCLUDING BUSINESS ENTERPRISES. THIS REQUIRES TAKING APPROPRIATE STEPS TO PREVENT, INVESTIGATE, PUNISH AND REDRESS SUCH ABUSE THROUGH EFFECTIVE POLICIES, LEGISLATION, REGULATIONS AND ADJUDICATION.
As such, both the State's action or omission in the protection of human rights is a violation of this principle. The document lists the second and last foundational principle, which is as follows:
2. STATES SHOULD SET OUT CLEARLY THE EXPECTATION THAT ALL BUSINESS ENTERPRISES DOMICILED IN THEIR TERRITORY AND/OR JURISDICTION RESPECT HUMAN RIGHTS THROUGHOUT THEIR OPERATIONS.
Regarding this second principle, Brazil has a reasonably comprehensive constitution that establishes fundamental, social, and labor rights. Although there are written rules, the question is whether the State has sufficient resources and tools to ensure compliance therewith.
Still within its duty to protect human rights, the State must observe the following operational principles, the first of which is the following:
1. (A) ENFORCE LAWS THAT ARE AIMED AT, OR HAVE THE EFFECT OF, REQUIRING BUSINESS ENTERPRISES TO RESPECT HUMAN RIGHTS, AND PERIODICALLY TO ASSESS THE ADEQUACY OF SUCH LAWS AND ADDRESS ANY GAPS; (B) ENSURE THAT OTHER LAWS AND POLICIES GOVERNING THE CREATION AND ONGOING OPERATION OF BUSINESS ENTERPRISES, SUCH AS CORPORATE LAW, DO NOT CONSTRAIN BUT ENABLE BUSINESS RESPECT FOR HUMAN RIGHTS; (C) PROVIDE EFFECTIVE GUIDANCE TO BUSINESS ENTERPRISES ON HOW TO RESPECT HUMAN RIGHTS THROUGHOUT THEIR OPERATIONS; (D) ENCOURAGE, AND WHERE APPROPRIATE REQUIRE, BUSINESS ENTERPRISES TO COMMUNICATE HOW THEY ADDRESS THEIR HUMAN RIGHTS IMPACTS.
Brazil, in addition to the Brazilian Labor Code (CLT), has given numerous evidences of human rights protection. Another example is the Law 11,770/2008, which allowed companies to extend the maternity salary for sixty days, in addition to the one hundred and twenty already guaranteed for pregnant employees, provided they had joined the Citizen Company Program. The question that arises is whether the State has the human, financial, and programmatic resources to establish adequate control in guaranteeing that human rights are respected.
Indeed, it is especially up to the largest corporations to establish internal policies that ensure such rights in the course of their business.
The second operational principle is as follows:
2. STATES SHOULD TAKE ADDITIONAL STEPS TO PROTECT AGAINST HUMAN RIGHTS ABUSES BY BUSINESS ENTERPRISES THAT ARE OWNED OR CONTROLLED BY THE STATE, OR THAT RECEIVE SUBSTANTIAL SUPPORT AND SERVICES FROM STATE AGENCIES SUCH AS EXPORT CREDIT AGENCIES AND OFFICIAL INVESTMENT INSURANCE OR GUARANTEE AGENCIES, INCLUDING, WHERE APPROPRIATE, BY REQUIRING HUMAN RIGHTS DUE DILIGENCE.
For this operational principle there is still a considerable gap to be filled by Brazilian legislators, with guidelines directed to legal entities governed by public law in direct public administration, as well as indirect public administration to legal entities governed by private law. On the other hand, there are norms aimed at financing projects with non-governmental organizations (NGOs), through management contracts and with civil society organizations of public interest (OSCIPs), through partnership terms, in which the issue of rights humans is upheld and serve purpose.
The third operational principle is as follows:
3. STATES SHOULD EXERCISE ADEQUATE OVERSIGHT IN ORDER TO MEET THEIR INTERNATIONAL HUMAN RIGHTS OBLIGATIONS WHEN THEY CONTRACT WITH, OR LEGISLATE FOR, BUSINESS ENTERPRISES TO PROVIDE SERVICES THAT MAY IMPACT UPON THE ENJOYMENT OF HUMAN RIGHTS.
Again, with respect to this principle, there is a gap for the implementation of specific monitoring mechanisms with respect to human rights issues. And the document then states the fourth operational principle:
4. STATES SHOULD PROMOTE RESPECT FOR HUMAN RIGHTS BY BUSINESS ENTERPRISES WITH WHICH THEY CONDUCT COMMERCIAL TRANSACTIONS.
Therefore, contracts signed with foreign companies by the State must have clauses that ensure respect for such human rights, as well as treaties and conventions which must consider this prerogative. The fifth operational principle is as follows:
5. BECAUSE THE RISK OF GROSS HUMAN RIGHTS ABUSES IS HEIGHTENED IN CONFLICT AFFECTED AREAS, STATES SHOULD HELP ENSURE THAT BUSINESS ENTERPRISES OPERATING IN THOSE CONTEXTS ARE NOT INVOLVED WITH SUCH ABUSES, INCLUDING BY: (A) ENGAGING AT THE EARLIEST STAGE POSSIBLE WITH BUSINESS ENTERPRISES TO HELP THEM IDENTIFY, PREVENT AND MITIGATE THE HUMAN RIGHTS-RELATED RISKS OF THEIR ACTIVITIES AND BUSINESS RELATIONSHIPS; (B) PROVIDING ADEQUATE ASSISTANCE TO BUSINESS ENTERPRISES TO ASSESS AND ADDRESS THE HEIGHTENED RISKS OF ABUSES, PAYING SPECIAL ATTENTION TO BOTH GENDER-BASED AND SEXUAL VIOLENCE; (C) DENYING ACCESS TO PUBLIC SUPPORT AND SERVICES FOR A BUSINESS ENTERPRISE THAT IS INVOLVED WITH GROSS HUMAN RIGHTS ABUSES AND REFUSES TO COOPERATE IN ADDRESSING THE SITUATION; (D) ENSURING THAT THEIR CURRENT POLICIES, LEGISLATION, REGULATIONS AND ENFORCEMENT MEASURES ARE EFFECTIVE IN ADDRESSING THE RISK OF BUSINESS INVOLVEMENT IN GROSS HUMAN RIGHTS ABUSES
Brazil is a very unequal country with regard to the distribution of companies and access to formal employment. While the Southeast and South regions have the highest concentration of companies, the Midwest, Northeast, and North lack larges companies and have many cities heavily depend on Federal Government resources to pay the salaries of their civil servants. Furthermore, Brazil, despite not being at war or in armed conflict with another country, has endemic areas affected by rampant violence, establishing a true parallel state, which the public security policies have not been able to resolve or even to mitigate.
Although Brazil has advanced in demanding or encouraging compliance for companies in laws such as the Anti-Corruption Act (Law 12,846/2013) or the new Bidding Act (Law 14,133/2021), it still lacks something focused on the requirement directed at large and medium-sized companies to create anti-harassment policies.
The sixth operational principle is as follows:
6. STATES SHOULD ENSURE THAT GOVERNMENTAL DEPARTMENTS, AGENCIES AND OTHER STATE-BASED INSTITUTIONS THAT SHAPE BUSINESS PRACTICES ARE AWARE OF AND OBSERVE THE STATE’S HUMAN RIGHTS OBLIGATIONS WHEN FULFILLING THEIR RESPECTIVE MANDATES, INCLUDING BY PROVIDING THEM WITH RELEVANT INFORMATION, TRAINING AND SUPPORT.
Due to government changes in Brazil, the number and role of ministries are constantly changing. An example is Jair Messias Bolsonaro’s administration, which had, among others, the Ministry of Citizenship and the Ministry of Women, Family, and Human Rights, whereas, in the Luiz Inácio Lula da Silva’s administration, those bodies ceased to exist, being replaced by the Ministry of Women, the Ministry of Human Rights and Citizenship, and the Ministry of Indigenous Peoples.
However, the existence of such Ministries, does not by itself meet the above-described principles, as there are no State policies efficient enough to provide relevant information, training, and support with respect to human rights. The seventh operational principle is as follows:
7. STATES SHOULD MAINTAIN ADEQUATE DOMESTIC POLICY SPACE TO MEET THEIR HUMAN RIGHTS OBLIGATIONS WHEN PURSUING BUSINESS-RELATED POLICY OBJECTIVES WITH OTHER STATES OR BUSINESS ENTERPRISES, FOR INSTANCE THROUGH INVESTMENT TREATIES OR CONTRACTS
Regardless of bilateral or multilateral agreements, as is the case with Mercosul, for example, Brazil, as well as other countries in this agreement, must not allow the decisions resulting therefrom to interfere with the internal capacity to guarantee public policies which promote the protection of human rights in the corporate environment or outside of it. The eighth operational principle is as follows.
8. STATES, WHEN ACTING AS MEMBERS OF MULTILATERAL INSTITUTIONS THAT DEAL WITH BUSINESS-RELATED ISSUES, SHOULD: (A) SEEK TO ENSURE THAT THOSE INSTITUTIONS NEITHER RESTRAIN THE ABILITY OF THEIR MEMBER STATES TO MEET THEIR DUTY TO PROTECT NOR HINDER BUSINESS ENTERPRISES FROM RESPECTING HUMAN RIGHTS; (B) ENCOURAGE THOSE INSTITUTIONS, WITHIN THEIR RESPECTIVE MANDATES AND CAPACITIES, TO PROMOTE BUSINESS RESPECT FOR HUMAN RIGHTS AND, WHERE REQUESTED, TO HELP STATES MEET THEIR DUTY TO PROTECT AGAINST HUMAN RIGHTS ABUSE BY BUSINESS ENTERPRISES, INCLUDING THROUGH TECHNICAL ASSISTANCE, CAPACITY-BUILDING AND AWARENESS-RAISING; (C) DRAW ON THESE GUIDING PRINCIPLES TO PROMOTE SHARED UNDERSTANDING AND ADVANCE INTERNATIONAL COOPERATION IN THE MANAGEMENT OF BUSINESS AND HUMAN RIGHTS CHALLENGES.
States participating in multilateral institutions, including Brazil, must promote corporate respect for human rights, whether through information, training, and programs.
THE CORPORATE RESPONSIBILITY TO RESPECT HUMAN RIGHTS
The document begins a second section on the corporate companies to respect human rights.
To do so, it begins with the first foundational principle:
1. BUSINESS ENTERPRISES SHOULD RESPECT HUMAN RIGHTS. THIS MEANS THAT THEY SHOULD AVOID INFRINGING ON THE HUMAN RIGHTS OF OTHERS AND SHOULD ADDRESS ADVERSE HUMAN RIGHTS IMPACTS WITH WHICH THEY ARE INVOLVED.
Therefore, the second part of the document guides the global standard of conduct that is now expected by companies. The second foundational principle is as follows:
2. THE RESPONSIBILITY OF BUSINESS ENTERPRISES TO RESPECT HUMAN RIGHTS REFERS TO INTERNATIONALLY RECOGNIZED HUMAN RIGHTS – UNDERSTOOD, AT A MINIMUM, AS THOSE EXPRESSED IN THE INTERNATIONAL BILL OF HUMAN RIGHTS AND THE PRINCIPLES CONCERNING FUNDAMENTAL RIGHTS SET OUT IN THE INTERNATIONAL LABOUR ORGANIZATION’S DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK.
As human rights can have a considerably broad meaning, this principle aims to guide the range of human rights with which companies should be concerned. Among which rights, some deserve priority due to the context of the internal or external environment where that company lies. The third foundational principle is as follows:
3. THE RESPONSIBILITY TO RESPECT HUMAN RIGHTS REQUIRES THAT BUSINESS ENTERPRISES: (A) AVOID CAUSING OR CONTRIBUTING TO ADVERSE HUMAN RIGHTS IMPACTS THROUGH THEIR OWN ACTIVITIES, AND ADDRESS SUCH IMPACTS WHEN THEY OCCUR; (B) SEEK TO PREVENT OR MITIGATE ADVERSE HUMAN RIGHTS IMPACTS THAT ARE DIRECTLY LINKED TO THEIR OPERATIONS, PRODUCTS OR SERVICES BY THEIR BUSINESS RELATIONSHIPS, EVEN IF THEY HAVE NOT CONTRIBUTED TO THOSE IMPACTS.
The principle above calls for the social responsibility of companies, with the purpose of preventing human rights from being violated in the achievement of their objectives.
4. THE RESPONSIBILITY OF BUSINESS ENTERPRISES TO RESPECT HUMAN RIGHTS APPLIES TO ALL ENTERPRISES REGARDLESS OF THEIR SIZE, SECTOR, OPERATIONAL CONTEXT, OWNERSHIP AND STRUCTURE. NEVERTHELESS, THE SCALE AND COMPLEXITY OF THE MEANS THROUGH WHICH ENTERPRISES MEET THAT RESPONSIBILITY MAY VARY ACCORDING TO THESE FACTORS AND WITH THE SEVERITY OF THE ENTERPRISE’S ADVERSE HUMAN RIGHTS IMPACTS.
Regardless of the company's size and the nature of its business, no company can excuse itself from respecting human rights. However, the way in which they fulfill this role may vary depending on their structure and available resources.
5. IN ORDER TO MEET THEIR RESPONSIBILITY TO RESPECT HUMAN RIGHTS, BUSINESS ENTERPRISES SHOULD HAVE IN PLACE POLICIES AND PROCESSES APPROPRIATE TO THEIR SIZE AND CIRCUMSTANCES, INCLUDING: (A) A POLICY COMMITMENT TO MEET THEIR RESPONSIBILITY TO RESPECT HUMAN RIGHTS; (B) A HUMAN RIGHTS DUE DILIGENCE PROCESS TO IDENTIFY, PREVENT, MITIGATE AND ACCOUNT FOR HOW THEY ADDRESS THEIR IMPACTS ON HUMAN RIGHTS; (C) PROCESSES TO ENABLE THE REMEDIATION OF ANY ADVERSE HUMAN RIGHTS IMPACTS THEY CAUSE OR TO WHICH THEY CONTRIBUTE.
By suggesting policies and processes appropriate to its size and circumstances, the document favors a compliance program that addresses principles and measures to protect human resources. Due diligence is also considered in the protection of human rights.
Therefrom, this new section lists the operational principles, the first of which is:
1. AS THE BASIS FOR EMBEDDING THEIR RESPONSIBILITY TO RESPECT HUMAN RIGHTS, BUSINESS ENTERPRISES SHOULD EXPRESS THEIR COMMITMENT TO MEET THIS RESPONSIBILITY THROUGH A STATEMENT OF POLICY THAT: (A) IS APPROVED AT THE MOST SENIOR LEVEL OF THE BUSINESS ENTERPRISE; (B) IS INFORMED BY RELEVANT INTERNAL AND/OR EXTERNAL EXPERTISE; (C) STIPULATES THE ENTERPRISE’S HUMAN RIGHTS EXPECTATIONS OF PERSONNEL, BUSINESS PARTNERS AND OTHER PARTIES DIRECTLY LINKED TO ITS OPERATIONS, PRODUCTS OR SERVICES; (D) IS PUBLICLY AVAILABLE AND COMMUNICATED INTERNALLY AND EXTERNALLY TO ALL PERSONNEL, BUSINESS PARTNERS AND OTHER RELEVANT PARTIES; (E) IS REFLECTED IN OPERATIONAL POLICIES AND PROCEDURES NECESSARY TO EMBED IT THROUGHOUT THE BUSINESS ENTERPRISE.
There is considerable room for improvement here, even for large transnational corporations. Most of them have anti-harassment policies and some codes of ethics and/or conduct with guidelines in defense of human rights, but generally focusing only on moral or sexual harassment. Therefore, it is important to emphasize that the protection of human rights goes far beyond the issue of harassment, including work safety, ergonomics, occupational health, working hours, safety, and many other aspects related to people's physical and mental health.
2. IN ORDER TO IDENTIFY, PREVENT, MITIGATE AND ACCOUNT FOR HOW THEY ADDRESS THEIR ADVERSE HUMAN RIGHTS IMPACTS, BUSINESS ENTERPRISES SHOULD CARRY OUT HUMAN RIGHTS DUE DILIGENCE. THE PROCESS SHOULD INCLUDE ASSESSING ACTUAL AND POTENTIAL HUMAN RIGHTS IMPACTS, INTEGRATING AND ACTING UPON THE FINDINGS, TRACKING RESPONSES, AND COMMUNICATING HOW IMPACTS ARE ADDRESSED. HUMAN RIGHTS DUE DILIGENCE: (A) SHOULD COVER ADVERSE HUMAN RIGHTS IMPACTS THAT THE BUSINESS ENTERPRISE MAY CAUSE OR CONTRIBUTE TO THROUGH ITS OWN ACTIVITIES, OR WHICH MAY BE DIRECTLY LINKED TO ITS OPERATIONS, PRODUCTS OR SERVICES BY ITS BUSINESS RELATIONSHIPS; (B) WILL VARY IN COMPLEXITY WITH THE SIZE OF THE BUSINESS ENTERPRISE, THE RISK OF SEVERE HUMAN RIGHTS IMPACTS, AND THE NATURE AND CONTEXT OF ITS OPERATIONS; (C) SHOULD BE ONGOING, RECOGNIZING THAT THE HUMAN RIGHTS RISKS MAY CHANGE OVER TIME AS THE BUSINESS ENTERPRISE’S OPERATIONS AND OPERATING CONTEXT EVOLVE.
The document describes what is expected from a human rights due diligence, establishing its scope and periodicity. Another big gap to be observed especially by large corporations.
3. IN ORDER TO GAUGE HUMAN RIGHTS RISKS, BUSINESS ENTERPRISES SHOULD IDENTIFY AND ASSESS ANY ACTUAL OR POTENTIAL ADVERSE HUMAN RIGHTS IMPACTS WITH WHICH THEY MAY BE INVOLVED EITHER THROUGH THEIR OWN ACTIVITIES OR AS A RESULT OF THEIR BUSINESS RELATIONSHIPS. THIS PROCESS SHOULD: (A) DRAW ON INTERNAL AND/OR INDEPENDENT EXTERNAL HUMAN RIGHTS EXPERTISE; (B) INVOLVE MEANINGFUL CONSULTATION WITH POTENTIALLY AFFECTED GROUPS AND OTHER RELEVANT STAKEHOLDERS, AS APPROPRIATE TO THE SIZE OF THE BUSINESS ENTERPRISE AND THE NATURE AND CONTEXT OF THE OPERATION.
The document also suggests how companies can use resources to assess the risks to which they are subject, with respect to the violation of human rights.
4. IN ORDER TO PREVENT AND MITIGATE ADVERSE HUMAN RIGHTS IMPACTS, BUSINESS ENTERPRISES SHOULD INTEGRATE THE FINDINGS FROM THEIR IMPACT ASSESSMENTS ACROSS RELEVANT INTERNAL FUNCTIONS AND PROCESSES, AND TAKE APPROPRIATE ACTION. (A) EFFECTIVE INTEGRATION REQUIRES THAT: (I) RESPONSIBILITY FOR ADDRESSING SUCH IMPACTS IS ASSIGNED TO THE APPROPRIATE LEVEL AND FUNCTION WITHIN THE BUSINESS ENTERPRISE; (II) INTERNAL DECISION-MAKING, BUDGET ALLOCATIONS AND OVERSIGHT PROCESSES ENABLE EFFECTIVE RESPONSES TO SUCH IMPACTS. (B) APPROPRIATE ACTION WILL VARY ACCORDING TO: (I) WHETHER THE BUSINESS ENTERPRISE CAUSES OR CONTRIBUTES TO AN ADVERSE IMPACT, OR WHETHER IT IS INVOLVED SOLELY BECAUSE THE IMPACT IS DIRECTLY LINKED TO ITS OPERATIONS, PRODUCTS OR SERVICES BY A BUSINESS RELATIONSHIP; (II) THE EXTENT OF ITS LEVERAGE IN ADDRESSING THE ADVERSE IMPACT.
The document clearly states the need for a risk assessment and the integration of its results into internal functions and processes, in order to prevent adverse impacts on human rights.
5. IN ORDER TO VERIFY WHETHER ADVERSE HUMAN RIGHTS IMPACTS ARE BEING ADDRESSED, BUSINESS ENTERPRISES SHOULD TRACK THE EFFECTIVENESS OF THEIR RESPONSE. TRACKING SHOULD: (A) BE BASED ON APPROPRIATE QUALITATIVE AND QUANTITATIVE INDICATORS; (B) DRAW ON FEEDBACK FROM BOTH INTERNAL AND EXTERNAL SOURCES, INCLUDING AFFECTED STAKEHOLDERS.
The document also addresses the issue of tracking to show whether adopted measures are effective or not. Logically, every suggestion is accessible to a very limited group of companies, since they involve human and financial resources that only large companies (or medium-sized companies in a solid financial situation) can support.
6. IN ORDER TO ACCOUNT FOR HOW THEY ADDRESS THEIR HUMAN RIGHTS IMPACTS, BUSINESS ENTERPRISES SHOULD BE PREPARED TO COMMUNICATE THIS EXTERNALLY, PARTICULARLY WHEN CONCERNS ARE RAISED BY OR ON BEHALF OF AFFECTED STAKEHOLDERS. BUSINESS ENTERPRISES WHOSE OPERATIONS OR OPERATING CONTEXTS POSE RISKS OF SEVERE HUMAN RIGHTS IMPACTS SHOULD REPORT FORMALLY ON HOW THEY ADDRESS THEM. IN ALL INSTANCES, COMMUNICATIONS SHOULD: (A) BE OF A FORM AND FREQUENCY THAT REFLECT AN ENTERPRISE’S HUMAN RIGHTS IMPACTS AND THAT ARE ACCESSIBLE TO ITS INTENDED AUDIENCES; (B) PROVIDE INFORMATION THAT IS SUFFICIENT TO EVALUATE THE ADEQUACY OF AN ENTERPRISE’S RESPONSE TO THE PARTICULAR HUMAN RIGHTS IMPACT INVOLVED; (C) IN TURN NOT POSE RISKS TO AFFECTED STAKEHOLDERS, PERSONNEL OR TO LEGITIMATE REQUIREMENTS OF COMMERCIAL CONFIDENTIALITY.
Brazil definitely does not have a culture of spontaneous whistleblowing. If more recent instruments, such as the plea bargain and the leniency agreement, are incentives for spontaneous reports, they actually only target situations in which other agents participated. In criminal law, while effective repentance contributes to reducing the criminal's sentence, there are no more assertive instruments to encourage the spontaneous whistleblowing.
7. WHERE BUSINESS ENTERPRISES IDENTIFY THAT THEY HAVE CAUSED OR CONTRIBUTED TO ADVERSE IMPACTS, THEY SHOULD PROVIDE FOR OR COOPERATE IN THEIR REMEDIATION THROUGH LEGITIMATE PROCESSES.
For a company to be able to effectively remedy a human rights violation, it is important to have a implemented compliance culture, in order to have pre-defined processes in situations like this.
8. IN ALL CONTEXTS, BUSINESS ENTERPRISES SHOULD: (A) COMPLY WITH ALL APPLICABLE LAWS AND RESPECT INTERNATIONALLY RECOGNIZED HUMAN RIGHTS, WHEREVER THEY OPERATE; (B) SEEK WAYS TO HONOUR THE PRINCIPLES OF INTERNATIONALLY RECOGNIZED HUMAN RIGHTS WHEN FACED WITH CONFLICTING REQUIREMENTS; (C) TREAT THE RISK OF CAUSING OR CONTRIBUTING TO GROSS HUMAN RIGHTS ABUSES AS A LEGAL COMPLIANCE ISSUE WHEREVER THEY OPERATE.
In yet another operational principle, the document tries to reaffirm the need for companies to always comply with applicable laws in order to respect human rights.
9. WHERE IT IS NECESSARY TO PRIORITIZE ACTIONS TO ADDRESS ACTUAL AND POTENTIAL ADVERSE HUMAN RIGHTS IMPACTS, BUSINESS ENTERPRISES SHOULD FIRST SEEK TO PREVENT AND MITIGATE THOSE THAT ARE MOST SEVERE OR WHERE DELAYED RESPONSE WOULD MAKE THEM IRREMEDIABLE.
And finally, in this section, the document regards the issue of ranking and prioritizing human resources breach risks.
ACCESS TO REMEDY
Finally, the document begins a third section regarding the issue of access to remedy, moving on to the single foundational principle listed:
1. AS PART OF THEIR DUTY TO PROTECT AGAINST BUSINESS-RELATED HUMAN RIGHTS ABUSE, STATES MUST TAKE APPROPRIATE STEPS TO ENSURE, THROUGH JUDICIAL, ADMINISTRATIVE, LEGISLATIVE OR OTHER APPROPRIATE MEANS, THAT WHEN SUCH ABUSES OCCUR WITHIN THEIR TERRITORY AND/OR JURISDICTION THOSE AFFECTED HAVE ACCESS TO EFFECTIVE REMEDY.
It is clear that such guidance deals with the duty of the State to punish companies that violate human rights in every manner whatsoever.
Next, six operational principles are listed, as below:
1. STATES SHOULD TAKE APPROPRIATE STEPS TO ENSURE THE EFFECTIVENESS OF DOMESTIC JUDICIAL MECHANISMS WHEN ADDRESSING BUSINESS-RELATED HUMAN RIGHTS ABUSES, INCLUDING CONSIDERING WAYS TO REDUCE LEGAL, PRACTICAL AND OTHER RELEVANT BARRIERS THAT COULD LEAD TO A DENIAL OF ACCESS TO REMEDY.
Although this measure is reasonable to ensure the application of the law, such implementation implies changing laws. This occurs especially in Brazil, since society's perception is that there is a concern for the human rights of criminals rather than a concern for the human rights of good citizens.
2. STATES SHOULD PROVIDE EFFECTIVE AND APPROPRIATE NON-JUDICIAL GRIEVANCE MECHANISMS, ALONGSIDE JUDICIAL MECHANISMS, AS PART OF A COMPREHENSIVE STATE-BASED SYSTEM FOR THE REMEDY OF BUSINESS-RELATED HUMAN RIGHTS ABUSE.
Non-judicial grievance mechanisms are a major gap in Brazil. Recent initiatives such as CGU’s Ordinance 57, of January 4, 2019, which provides a term for the implementation of the integrity program in public bodies and entities of direct public administration, autarchic and foundational, are commendable. By establishing channels for reporting misconduct, including their Internal Affairs offices, they can serve as a starting point for complying with this guideline.
3. STATES SHOULD CONSIDER WAYS TO FACILITATE ACCESS TO EFFECTIVE NON-STATE BASED GRIEVANCE MECHANISMS DEALING WITH BUSINESS-RELATED HUMAN RIGHTS HARMS.
As mentioned above, there are incentive compliance programs whose content provides channels for reporting misconduct, whether internal or external, which already serve as a measure for compliance with such guidance.
4. TO MAKE IT POSSIBLE FOR GRIEVANCES TO BE ADDRESSED EARLY AND REMEDIATED DIRECTLY, BUSINESS ENTERPRISES SHOULD ESTABLISH OR PARTICIPATE IN EFFECTIVE OPERATIONAL-LEVEL GRIEVANCE MECHANISMS FOR INDIVIDUALS AND COMMUNITIES WHO MAY BE ADVERSELY IMPACTED.
As with the previous operational principle, the channels for reporting misconduct are essential to fulfill this role, including making them available to third parties and not just to employees.
5. INDUSTRY, MULTI-STAKEHOLDER AND OTHER COLLABORATIVE INITIATIVES THAT ARE BASED ON RESPECT FOR HUMAN RIGHTS-RELATED STANDARDS SHOULD ENSURE THAT EFFECTIVE GRIEVANCE MECHANISMS ARE AVAILABLE.
Another operational principle that follows the same path is the following:
6. IN ORDER TO ENSURE THEIR EFFECTIVENESS, NON-JUDICIAL GRIEVANCE MECHANISMS, BOTH STATE-BASED AND NON-STATE-BASED, SHOULD BE: (A) LEGITIMATE: ENABLING TRUST FROM THE STAKEHOLDER GROUPS FOR WHOSE USE THEY ARE INTENDED, AND BEING ACCOUNTABLE FOR THE FAIR CONDUCT OF GRIEVANCE PROCESSES; (B) ACCESSIBLE: BEING KNOWN TO ALL STAKEHOLDER GROUPS FOR WHOSE USE THEY ARE INTENDED, AND PROVIDING ADEQUATE ASSISTANCE FOR THOSE WHO MAY FACE PARTICULAR BARRIERS TO ACCESS; (C) PREDICTABLE: PROVIDING A CLEAR AND KNOWN PROCEDURE WITH AN INDICATIVE TIME FRAME FOR EACH STAGE, AND CLARITY ON THE TYPES OF PROCESS AND OUTCOME AVAILABLE AND MEANS OF MONITORING IMPLEMENTATION; (D) EQUITABLE: SEEKING TO ENSURE THAT AGGRIEVED PARTIES HAVE REASONABLE ACCESS TO SOURCES OF INFORMATION, ADVICE AND EXPERTISE NECESSARY TO ENGAGE IN A GRIEVANCE PROCESS ON FAIR, INFORMED AND RESPECTFUL TERMS; (E) TRANSPARENT: KEEPING PARTIES TO A GRIEVANCE INFORMED ABOUT ITS PROGRESS, AND PROVIDING SUFFICIENT INFORMATION ABOUT THE MECHANISM’S PERFORMANCE TO BUILD CONFIDENCE IN ITS EFFECTIVENESS AND MEET ANY PUBLIC INTEREST AT STAKE; (F) RIGHTS-COMPATIBLE: ENSURING THAT OUTCOMES AND REMEDIES ACCORD WITH INTERNATIONALLY RECOGNIZED HUMAN RIGHTS; (G) A SOURCE OF CONTINUOUS LEARNING: DRAWING ON RELEVANT MEASURES TO IDENTIFY LESSONS FOR IMPROVING THE MECHANISM AND PREVENTING FUTURE GRIEVANCES AND HARMS; OPERATIONAL-LEVEL MECHANISMS SHOULD ALSO BE: (H) BASED ON ENGAGEMENT AND DIALOGUE: CONSULTING THE STAKEHOLDER GROUPS FOR WHOSE USE THEY ARE INTENDED ON THEIR DESIGN AND PERFORMANCE, AND FOCUSING ON DIALOGUE AS THE MEANS TO ADDRESS AND RESOLVE GRIEVANCES.
Finally, in its last operational principle, the document clarifies what is expected of a channel for reporting misconduct, whether in the public or private sector.
It is a commendable initiative of the United Nations, whose content could be better explored by some countries, including Brazil.