human rights & business (and a few other things)

Business and Human Rights in the New Chilean Constitution? Implications for Chile and Latin America

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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

 

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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

Photo: WWF

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.


The German Football Federation’s Human Rights Policy – A First of its Kind

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It is a pleasure welcome back Dr Daniela Heerdt (@DanielaHeerdt) to Rights as Usual. Dr Heerdt recently defended her PhD on responsibilities for human rights abuses at mega-sporting events. She has a background in public international law and human rights law. Next to being a researcher and teacher at Tilburg University, she works as independent consultant on sport and human rights for the Centre for Sport and Human Rights among others. This post is hers.

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On the 23rd of April 2021,the German football federation “Deutscher Fußball-Bund” (DFB) published its human rights policy. This is a significant step, first because the DFB is the first national football federation to take this step. It is also in line with a number of recommendations made by John Ruggie in its report on FIFA’s human rights responsibilities regarding how FIFA’s efforts should translate to its member associations. Moreover, the German federation is a well-respected and -resourced football federation that can set an example for other national football federations to follow.

This blog post summarizes and analyses the key elements of the newly adopted policy, compares it to FIFA’s human rights policy, and reflects on how DFB’s statement on the Qatar World Cup, which accompanied the publication of the policy, aligns with DFB’s human rights commitments. Some conclusions are drawn to evaluate the policy more broadly in the context of current developments in sport and human rights and on lessons to be learned for other football federations that want to follow suit.

Policy Statement

The adoption of a human rights policy presents an important step in DFB’s ongoing efforts to embed human rights. This journey started in 2017, when the DFB was bidding for the UEFA EURO 2024. In 2019, the DFB adopted a statutory commitment to respect all internationally recognized human rights. These steps are reiterated in the introductory part of the policy, which also reflects more broadly on DFB’s societal impact and football’s potential to contribute positively to societal development.

The policy serves as a guide for implementing the statutory human rights commitment and rests on the DFB’s acceptance of a duty of care. It explicitly refers to a number of human rights instruments, namely the UNGPs, the International Bill of Human Rights, and the fundamental conventions of the International Labour Organization. In addition, it mentions Germany’s National Action Plan on business and human rights (NAP) as a source of interpretation for what this duty of care and respecting human rights mean (p.4).

After a brief statement in which the DFB condemns any kind of human rights abuse, in particular mentioning violent, discriminatory, or inhuman behaviour, and any harm to a child’s welfare or other vulnerable groups, the policy provides a comprehensive overview of the actors it applies to. This includes all organs, officials, employees, and all companies in which the DFB holds the majority of the shares. Furthermore, it extends to DFB’s business relationships and events organized by the Federation, as well as its member organizations.

Human Rights Due Diligence

The policy defines steps on how to implement the duty of care, which follows closely the due diligence process outlined in the UNGPs and Germany’s NAP (p.5). In total, 10 steps are identified: impact assessment (2.1), risk analysis (2.2), risk mitigation (2.3), influence on third parties (2.4), collaboration, dialogue and effectiveness check (2.5), existing and new structures (2.6), grievance mechanisms, remedy and compensation (2.7), dissemination (2.8), international level (2.9), reporting and learning (2.10). The level of details provided under each step differs. As examples for sources of potential and actual negative human rights impacts, it merely lists activities on and off the pitch and activities related to staging tournaments, inadequate working conditions for DFB’s employees, or DFB’s supply chains. This broad overview is followed by a reference to the annex, which gets more concrete on what the relevant human rights issues are (P.10-13).

Other human rights due diligence steps identified in the policy provide more detail, such as the measures that can be taken to mitigate risks, how to collaborate with relevant partners on implementing the policy, and how to use existing structures to advance the policy, such as using the independent Ethics Commission. However, the statement on grievance mechanisms leaves open the important question of whether the DFB creates its own grievance mechanism or adopts an existing mechanism for cases of negative human rights impacts related to DFB’s operations. In case it does set up its own mechanism, the policy guarantees that stakeholder engagement will take place. Finally, it is remarkable that grassroots level football is explicitly included in the considerations, and that regular reporting is planned within the framework of DFB’s sustainability reports.

Compared to FIFA’s Human Rights Policy

At first glance, the DFB’s human rights policy looks rather similar to the FIFA’s human rights policy adopted in 2017. It follows a similar structure, by first making a general commitment and then explaining the approach. Furthermore, both are clearly linked to the UNGPs and based on a human rights due diligence process. However, the DFB divides this into ten steps, which arguably makes it more thorough than FIFA’s four pillars that follow more closely the four-step structure of human rights due diligence as stipulated in the UNGPs. Another difference is that DFB’s human rights policy is less explicit on what potential and actual human rights risks are when compared to FIFA’s policy. While FIFA lists “salient risks” under its commitment, the DFB refers to concrete examples only in the annex to the policy. There, the potential and actual human rights risks are categorized under discrimination and racism, violence and health risks, risks related to integrity, corruption, or doping, and labour rights risks.

Arguably, the way these risks are addressed in the DFB’s policy appears rather broad and general, and lacks embedding in human rights language and standards. Furthermore, some obvious risks are overlooked, such as human rights risks related to recruitment practices for workers on tournament construction sites. With the upcoming World Cup in Qatar in 2022, this can be considered a significant omission. The fact that DFB’s position on Qatar, which was released together with the policy, does not address this issue either makes it look like a conscious choice. In fact, while the position refers to DFB’s human rights commitments, it does not mention concrete human rights risks related to the Qatar World Cup, nor does it link the risks mentioned in the policy’s annex to the situation in Qatar. Instead, the power of sport to bring about positive change is paramount in the statement. While being clear on their position that a boycott is not a solution, the DFB is less clear on how it contributes to positive changes in Qatar beyond relying on the approach of experts. Given the recent human rights efforts that DFB undertook, it is somewhat surprising that this position is not linked more directly to its human rights policy and statutory commitment to respect human rights.

Lessons to Be Learned

On the one hand, adopting a human rights policy is an important step towards ensuring a world of football, and sports more generally, that fully respects human rights. That the DFB took this step supports the sport and human rights movement, which developed in the past decade. This movement is carried forward by civil society organizations that raise awareness on human rights issues connected to sports and supported by a number of actors within the sport ecosystem, including sponsors and broadcasters. It arguably rests on the understanding that ensuring a harm-free and human rights-compliant sport is a shared responsibility among all the different actors involved, as I have argued in my PhD thesis.

The most important lesson for other football federations should be that it is possible for an organization like a national football federation to adopt such a policy. The DFB shows awareness of useful existing structures and how they need to be reformed to embed human rights into daily practices and policies. Hence, it is not necessary to re-invent the wheel. Furthermore, it is not a lonely journey, and external partners can help. The extensive reference to other organizations and actors, and the way this policy has been shaped demonstrates that the DFB engaged in proper stakeholder consultation. As a result they know that they do not have to do this on their own, but can rely on the support of and collaboration with others.

On the other hand, the policy could have been more directly embedded in human rights standards, by including references to specific provisions in international human rights instruments. In particular, it misses the opportunity to acknowledge the issue of women’s rights abuses related to football, and in particular the issue of gender discrimination in football, which Ruggie identified as “endemic human rights challenge” and “deep-seated pattern” in the world of association football. Furthermore, while being clear on who this policy applies to within the DFB’s organization, it remains rather vague on how the policy will be implemented internally. Therefore, it remains to be seen what effects this policy will have in practice.

In conclusion, the adoption of this policy constitutes an important development for the sports and human rights field. While there is always room for improvement, the fact that the DFB came this far is applaudable. Hopefully DFB’s effort will inspire other football federations.

 


Implementing the UNGPs in Eastern Europe: Is Ukraine the Example to Follow?

 

Kharkiv ForumIt is my pleasure to welcome Dr Olena Uvarova to Rights as Usual (@BHRinUkraine). Dr Uvarova is Associate Professor of law, Head of the International Lab on Business and Human Rights (BHR) at Yaroslav Mudriy National Law University in Ukraine. She is the author of the National Baseline Assessment on BHR in Ukraine. In 2017-2020, she coordinated the panel discussions on BHR in Eastern Europe during the Kharkiv Legal Forum. She is the co-founder of the Central and Eastern Europe BHR Association, and a member of the Global BHR Scholars Association. This post is hers.

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In Eastern European countries, the level of UNGPs implementation remains extremely low. Among non-EU members, only Georgia adopted a business and human rights (BHR) chapter, in 2018. It is not a stand-alone National Action Plan (NAP). Rather, it is incorporated within its broader human rights NAP (https://globalnaps.org/country/georgia/). While three years later experts remain skeptical about Georgia’s progress, the very existence of this chapter shows that BHR issues are on the public agenda in Georgia.

This month (March 2021), Ukraine repeated the experience of Georgia: a  BHR Chapter was adopted as part of the National Human Rights Strategy (https://www.president.gov.ua/documents/1192021-37537).

Pre-BHR period in Ukraine

In December 2014, the Ukrainian translation of the UNGPs was presented by the Ministry of foreign affairs of Ukraine. After that, it looked like the document was forgotten by everyone: no public mention, no statement, no action followed both from the state, business or civil society. This can be explained by the fact that the country had other vital concerns. After the revolutionary events of 2013-2014 and the start of the armed conflict in the East of Ukraine, priorities shifted significantly. But this explanation only partially holds. One can also argue that in situations of instability and high risks to human rights, the state obligation to protect and the corporate responsibility to respect human rights actually become more relevant.

In 2017, during the first Kharkiv Legal Forum, a BHR discussion was conducted. This academic event was open to all interested stakeholders, but no state organ, and no business participated. However, during the second Kharkiv Forum in 2018, a Panel discussion on BHR in Ukraine brought together representatives from the Ministry of Justice (MoJ), the Ombudsperson’s Secretariat, the OECD National Contact Point, and the Governmental Commissioner for Gender Equality (http://bhr.in.ua/business-and-human-rights-implementing-ungps-in-ukraine/).

This is my own subjective opinion, which I understand might be perceived as biased, but I believe it is highly important for Ukrainian decision-makers to hear what international organizations and experts in this area have to say. It is crucial to take into account the experience of others, including Western European countries. This is not to say that such experience and opinions are to be received uncritically. However, it is clear that at the second Forum in 2018 the opening greetings from a UN Working group on business and human rights member (Anita Ramasastry), the expert opinion from the Danish Institute for Human Rights (Dirk Hoffmann), and the presentations of the Polish (Beata Faracik), Czech Republic (Jitka Brodska and Alla Tymofeeva) and Lithuanian (Lyra Jakulevičienė) experiences played a decisive role.

In January 2019, the MoJ initiated implementation of the UNGPs in Ukraine (https://minjust.gov.ua/m/informatsiya-schodo-rezultativ-provedennya-natsionalnogo-otsinyuvannya-bazovih-pokaznikiv-u-sferi-biznesu-ta-prav-lyudini-v-ukraini).

UNGPs implementation: initial steps

At the beginning of 2019, the National baseline assessment (NBA) on BHR in Ukraine was initiated by the MoJ. It was conducted by Yaroslav Mudryi National Law University (I was the author with the expert support of my colleagues) in cooperation with the Danish Institute for Human Rights (https://minjust.gov.ua/files/general/2019/07/10/20190710170813-19.pdf).

The NBA was published and presented in June 2019. The idea of the MoJ was that it should serve as a basis and starting point for developing a stand alone NAP on BHR. But after early parliamentary elections in July 2019, the government was dissolved and a new one was formed. Until March 2020, the fate of the BHR NAP remained extremely unclear. In March 2020, the new MoJ’s team announced that an updated National Human Rights Strategy would be developed. It called experts and CSOs to make proposals on how the Strategy should be updated. One of the proposals that was supported by the Ombudsperson’s office and a number of CSOs was to have the BHR chapter.

After several virtual open discussions, the draft was prepared. The MoJ was open to accepting and processing as many proposals, remarks and comments as possible. As a result, in November 2020, the updated National Human Rights Strategy that includes the BHR chapter was ready to be approved and signed by the President of Ukraine. Thus, the whole process of working on the text took about 8 months. Too fast? Maybe.

Then there were 4 months of waiting. Nobody knew exactly when the President would sign the Strategy, or if he would sign it at all. The expectation was compounded by the fact that the New Economic Strategy of Ukraine initiated by the President of Ukraine and presented in January 2021 provides for a ban of any new requirements and restrictions for business. These are red flags. “Business deregulation and removal of any barriers for doing business” are called as key priorities. The Economic Strategy does not contain any reference to human rights.

On March 24, the National Human Rights Strategy was signed. It does include a BHR Chapter. However, a feeling of policy incoherence lingers on.

What’s next?

The National Human Rights Strategy is a very broad document. The BHR chapter (2 pages) names only:

-        General strategic goals: business operations should be based on a human rights approach; effective remedies should be guaranteed for victims of business violations); and

-        Key tasks, namely to implement the UNGPs; to strengthen the capacity of public authorities and local governments to implement the UNGPs in Ukraine; to raise awareness of business entities and their associations, trade unions and other civil society institutions on the UNGPs; to promote the renewal of corporate policies (in particular on labor relations, environmental protection, corporate social responsibility, personal data protection, consumer protection, anticorruption, combating trafficking in human beings, etc.) to ensure compliance with the UNGPs and other international human rights instruments; to provide access to judicial and non-judicial remedies.

Now the Ukrainian government should adopt an action plan for the implementation of the National human rights strategy (the draft of the Plan was developed simultaneously with the Strategy in the same manner). An action plan is more detailed – it names specific actions to be taken, responsible actors and timelines.

Lessons learned

So, I hope that the case of Ukraine will be an example to follow for those countries from the region that initiate the UNGPs implementation. We need more countries to adopt NAPs on BHR. But in this process, the lessons already learned by Ukraine should be taken into account:

  1. Be persistent. Someone (from civil society, academia, business) has to be very persistent in their intentions. It is pointless to wait for the government to take the initiative.
  2. Appeal to experiences of other countries, to the opinions of international organizations, to the expectations of partner states and investors. Unfortunately, often these arguments are more effective for decision-makers than society’s expectations. But this can be used as an advantage.
  3. Implementation’s processes can occur too quickly, to the detriment of the standards of inclusiveness and the depth of the analysis of the problems. This haste is one of the consequences of political instability. Changing the composition of the government can put any initiated process on a long pause.
  4. Be prepared to see some policy incoherence. The concept of business and human rights is considered mostly as a significant obstacle to economic development. Therefore, the main questions to be answered are: will the UNGPs implementation lead to a slowdown in economic development? Will it create additional barriers to business?

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