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15 May 2015

Julia Mello Neiva & Sif Thorgeirsson, Business & Human Rights Resource Centre

Countdown to Rio Olympics: legal avenues to hold companies accountable essential to empower vulnerable communities

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[This blog is available in Portuguese here.]

Mega-sporting events shine a spotlight on host countries, and most recently this spotlight has been on Brazil.  Brazil is now less than 500 days away from hosting the 2016 Olympic Games in Rio de Janeiro.  The Rio Games will begin just two years after Brazil hosted the 2014 FIFA World Cup.  This is only the second time a country has hosted these two events back-to-back (the first was the United States, with the 1994 World Cup and 1996 Olympics).  The massive infrastructure projects necessary to host mega-sporting events such as the World Cup and Olympics raise a number of human rights concerns.  With the preparations for the Rio Games underway, the forced displacements, forced labour, discrimination and violent repression of protestors that accompanied the World Cup are still a vivid memory in much of Brazil.  Along with top athletes, spectators and media, Brazil’s next major sporting event – like its last – will bring global businesses to the country as investors, developers and sponsors.  And like the World Cup, the Games highlight the huge impact businesses can have on human rights.

Brazil’s recent popularity as a host of major sporting events is just one reason why Business & Human Rights Resource Centre decided to conduct a legal research mission there in March.  Specifically, we wanted to learn what is being done in Brazil to hold companies legally accountable for human rights abuses, and what more needs to happen.  During the mission, in addition to meeting with lawyers, civil society members and investigative journalists, we co-sponsored a roundtable event with Conectas and Justiça Global.  We invited human rights advocates from different parts of the country to discuss avenues and successful strategies to hold companies legally accountable for human rights abuses, and challenges they face.  Two issues stood out during this visit – efforts to eradicate forced labour and modern slavery, and the impact of large infrastructure and extractive projects on local communities.


Forced Labour & Modern Slavery

A recent campaign by the NGO Walk Free, in partnership with Repórter Brasil & Comissão Pastoral da Terra (CPT), found slave-like conditions in the Brazilian construction industry.  Workers were being housed in deplorable conditions, forced into debt-bondage schemes, and some were never paid their wages.  Business & Human Rights Resource Centre invited key companies named in the campaign to respond: Anglo American, Brookfield, Emccamp, MRV, OAS and Racional.  All the companies responded, except OAS.  It was not surprising, then, that OAS at first denied its involvement in hiring workers found in slave-like conditions in another case, on the Guarulhos airport renovation project.  Later, Ministério Público do Trabalho (MPT, the Labour Public Prosecutor) brought a lawsuit against OAS for forced labour at the Guarulhos site.  OAS eventually settled with MPT and agreed to improve the workers’ labour conditions as well as pay a fine of 15 million reais (about US$4.6 million).

Brazil’s Ministry of Labour and Employment (Ministério do Trabalho e Emprego, MTE) maintains a list of companies found to have benefitted from slave-like labour – this is the “Lista Suja”, or Dirty List.  Companies on this list are banned from government contracts, their access to credit and public financing are limited, and other companies are discouraged from doing business with them.  The Brazilian Government as well as the international community, including the United Nations, have held up the Dirty List as an effective tool for holding companies accountable for using slave labour by making their labour record transparent. 

While the Dirty List has created a good foundation for encouraging companies to improve their labour practices, the Brazilian Government and civil society must not become complacent.  At the end of last year, right before the scheduled publication of an updated Dirty List, a business association appealed to the Brazilian Supreme Court asking it to compel MTE to cease publication of the list and questioned the constitutionality of the list itself (see more about this here [in Portuguese]).  The court granted the business association an injunction in December 2014, and the updated list was withheld from the public.  This was an aggressive move on the part of business to dismantle a tool aimed at furthering transparency and accountability.  In March, Repórter Brasil published the updated Dirty List after obtaining it through the access to information law.  The business association’s lawsuit challenging the constitutionality of the list is still pending.  On 13 March, Repórter Brasil together with Conectas defended the continued use of the Dirty List before the UN Human Rights Council.  The organizations also requested that the Special Rapporteur on Contemporary Forms of Slavery visit Brazil to evaluate the impact of the Supreme Court’s decision on the fight against slave labour.

In early April, the Dirty List was finally published again, further to a new ministerial decree that nullifies the Supreme Court’s suspension of the Dirty List.  The Human Rights Secretariat of the President of the Republic publicly supported Repórter Brasil’s analysis that the list could be published under the constitution and the access to information law.  One issue raised by the Supreme Court was that the previous procedure to publish the Dirty List did not provide for someone accused of forced labor to defend themselves.  The new decree makes clear that companies are only included on the Dirty List after having access to due process of law.


Large Infrastructure and Extractive Projects

Brazil is home to the largest iron ore pit mine in the world, and the country is also rapidly increasing its hydroelectric capacity with many dams and other big infrastructure projects planned for construction.  Advocates working with communities affected by these types of projects are facing tremendous hurdles when trying to protect communities’ rights. 

Vale’s Carajás iron ore mine in Brazil’s Maranhão region is served by a 556-mile railway connecting the mine to a port on São Marcos bay.  The railway affects 27 municipalities in Maranhão – Brazil’s poorest state – and impacts over two million people while passing through environmentally protected areas.  The advocates working on behalf of the affected communities note that judicial institutions need to be strengthened in order for legal action to be an effective tool to protect these communities.  Danilo Chammas, a lawyer and activist working in this region with Justiça nos Trilhos (Justice on the Rails), highlighted in an interview that those “who try to resist,…who fight for their rights, who seek ways of minimizing the impacts and violations, suffer the consequences...So all of this is also a challenge for the people on the ground, like me, who are striving for recognition of these rights and the responsibility on the part of companies and the State for their actions.  Some people end up being persecuted, sued or under surveillance.”

Throughout Brazil, communities at the sites of proposed hydropower projects are working to ensure that their rights are protected.  The Belo Monte dam, being constructed on the Xingu River in the Amazon basin, is the largest hydropower project under construction in the world; once this dam is operational, it will be the world’s third-largest dam.  This dam has been the subject of litigation because of the socio-environmental impacts for indigenous people and other groups whose livelihoods used to depend on the river, but the lawsuits have not stopped construction.  Movimento dos Atingidos por Barragens (MAB) observed that some dam projects commence construction (and in some cases start operation) prior to the projects’ environmental licences being approved.  In addition, communities affected by dam construction often do not receive adequate compensation from the construction companies when appropriate, or from the government. 

For those people working to protect communities affected by infrastructure and extractive projects, surveillance by companies has occurred with increasing frequency; for example, Vale was accused of spying on Justiça nos Trilhos and Movimento dos Sem Terra (Landless Workers Movement).  Many people with whom we met had reason to believe that their communications were being monitored and that companies frequently send people to their community meetings who don’t identify themselves as working for the companies.

As the opening of the Rio Games gets closer, these issues will only become bigger and more and more international attention will be focused on how Brazil protects the human rights of its people against the adverse impacts of business.  Empowering communities to protect their rights effectively and holding companies accountable for their human rights abuses will help ensure that development in Brazil is not at the expense of the vulnerable, but actually benefits poor and marginalised groups.