Responding department: Directorate for Human Rights, Ministry of Foreign Affairs
Note: This response was originally submitted in Spanish. Unofficial English translation provided by Business & Human Rights Resource Centre.
Has your government taken any initiatives to reduce companies’ negative impacts on human rights that you consider particularly successful?
Among the initiatives that have been carried out, we can highlight the OECD National Contact Point (NCP). In Chile, the NCP is based in the Directorate for International Economic Relations under the Ministry of Foreign Affairs and comprises three main bodies:
Executive Secretariat: A body made up of the National Contact Point and the staff associated with it. The main duties of this Secretariat are to support and contribute to examining and monitoring the cases referred to the NCP, to hold meetings with the parties and the respective boards, and to coordinate and organize dissemination activities.
Mirror Committee: This is a body made up of representatives of the business sector, trade unions and non-governmental organizations, and experts. Its main role it to advise the National Contact Point in its work. In addition, the Mirror Committee is intended to provide information about the work of the NCP in relation to dissemination and the handling of the cases referred to it.
Advisory Board: This board is made up of representatives of public institutions. Its main objective is to advise the NCP on fulfilment of its objectives, especially in the handling of the cases submitted to it for consideration. They prepare recommendations on how to proceed and to consult with specific areas of the Advisory Board in order for technical guidelines to be issued with regard to matters of the specific case submitted.
Another initiative the Chilean State has undertaken is the establishment of the Social Responsibility Council for Sustainable Development, falling under the Ministry of the Economy. This multi-stakeholder body considers the United Nations Guiding Principles on Business and Human Rights as one of the tools for its work.
Lastly, an initiative that is currently being developed is the Human Rights and Business Country Guide, which is being worked on under the guidance of the Danish Institute for Human Rights. The Country Guide is a free, comprehensive and easily accessible tool for companies and other stakeholders, and is intended to identify the adverse impacts on human rights that could be caused by their operations (including impacts related to their value chains, suppliers and other trading partners) in specific countries. The Guide is a virtual platform, organized according to themes, which companies can consult to avoid adverse human rights impacts.
What department or departments have significant responsibility for business and human rights within your government?
The Social Responsibility Council for Sustainable Development under the Ministry of the Economy, a multi-stakeholder body whose purpose is to advise the Ministry of the Economy, recognizes the Guiding Principles as a key reference framework for carrying out its work.
The members of the Social Responsibility Council for Sustainable Development include: the Executive Director of the Global Compact in Chile; the National Contact Point for the OECD Guidelines for Multinational Enterprises; three representatives of business associations (the presidents of Sociedad de Fomento Fabril, Santiago Chamber of Commerce and the Manufacturing and Trade Confederation), two representatives of smaller businesses and entrepreneurs (the president of CONAPYME - Trade Association of Small and Medium Enterprises - and the Executive Director of ASECH - Association of Entrepreneurs in Chile), two representatives of non-governmental organizations (the president of the Chilean Association of NGOs, "Acción", and the Executive Director of "Acción RSE"), one trade union representative (the International Relations Secretary of Central Unitaria de Trabajadores) and two representatives of academia (the Executive Director of the Centre for Corporate Governance of the University of Chile and the Executive Director of the Linking Centre of the Pontifical Catholic University of Valparaíso).
In addition, the Ministry of Foreign Affairs is strengthening its internal institutional structure with the objective of encouraging dialogue aimed at implementation of the Guiding Principles in Chile. This process is currently being coordinated by the Directorate for Human Rights.
Has your government undertaken new business & human rights initiatives or strengthened existing ones since the endorsement of the UN Guiding Principles in June 2011?
To date, the most important initiative that has been promoted by the Chilean state is the establishment of the Social Responsibility Council for Sustainable Development. The Social Responsibility Council for Sustainable Development became operational in August 2013 with the aim of advising the Ministry of the Economy on identifying opportunities to progress towards a state policy on sustainable development through recommendations and proposals. The Guiding Principles are one of the key reference frameworks of the recently established Responsibility Council, as reflected in its decree of incorporation (Ministry of Economy Development and Tourism Decree No. 60 of 2013). Consequently, both their promotion and the challenges linked to their implementation constitute one of the main tasks of the Council.
The Council is developing its Work Plan for the coming years, which includes establishing a National Plan on Business and Human Rights underpinned by a baseline study to assess the current situation in the country with regard to implementation of the Guiding Principles and by broad and transparent dialogue.
Has your government adopted a National Action Plan on business and human rights as encouraged by the UN Human Rights Council and UN Working Group on business & human rights, or will it do so in the future?
The Chilean government has not yet adopted a National Action Plan on business and human rights, although it is planning to develop one in order to implement the Guiding Principles in the country.
The Social Responsibility Council has prepared a Work Plan that includes the development of a National Action Plan on Business and Human Rights underpinned by a baseline study of the current situation in the country with regard to implementation of the Guiding Principles.
If your government has adopted a National Action Plan or is planning on adopting one, please highlight whether it makes reference to international human rights standards and whether it was developed in consultation with affected stakeholders.
The Action Plan on Business & Human Rights to implement will be referred to the UN Guiding Principles on business & human rights and will count on the engagement of all stakeholders.
Access to remedy: What steps have been taken to develop new judicial or administrative remedies or to reduce barriers to existing remedies for victims?
Regarding existing remedies within the state, we refer to our response to the questionnaire sent to the United Nations Working Group on human rights and business in June of this year (answer to question No. 29 of the questionnaire):
Within the framework of legal assistance, the Metropolitan Region Legal Aid Cooperation (CAJ) is a public entity whose mission comprises two main aspects: a) providing free legal aid to people with limited means, and b) providing the means for law students to perform the necessary work experience to be able to practise as lawyers.
Attached to the Directorate for Specialized Offices is the Office of Human Rights, responsible for supporting cases involving foreign nationals and migration, when actions are brought against the Ministry of the Interior, against agents of the state for crimes against humanity, for protection against police officers using unnecessary violence, and against the Internal Revenue Service for acts committed by agents of the state in order to enforce their financial liability.
Exceptionally, by means of protective measures, action can also be brought against any private individual or legal entity that undermines another person's human rights, In this context, while the CAJ provides legal aid to victims of human rights abuses, most actions are against the State, and a minority are against private companies (legal entities).
Moreover, it should be pointed out that, in criminal matters, the Public Prosecution Service offers assistance and protection to all victims of crimes that it prosecutes. Thus, victims of human rights abuses are assisted to the extent that the abuses in question constitute a crime within its jurisdiction.
In order to fulfil the constitutional and legal role of providing support and protection to victims and witnesses, the Public Prosecution Service, through the Victim and Witness Support Division, has implemented the Guidance, Protection and Support (OPA) model for victims and witnesses throughout the country. The aim of this initiative it to encourage the participation of victims and witnesses in criminal proceedings by offering: guidance services that include information about the proceedings and the stages thereof, rights and obligations, etc.; protection services, taking in account the level of intimidation or threat present, based on an assessment of the situation; and support services to facilitate participation in the investigation stage and in the oral proceedings. These services are provided in accordance with the victim or witness’ stage of the criminal proceedings.
Within this structure, specialized models or lines of intervention have been developed to respond to the specific requirements of certain categories of users. The assistance provided by the Guidance, Protection and Support services is always factored in. However, the specific characteristics and requirements of the victims and/or witnesses concerned are also considered. Accordingly, the Specialized Model for Immediate Intervention for Victims of Intra-Family Violence, Specialized Intervention for Child Victims of Sex Offences and Offences in a context of Domestic Violence, and the Model for the Protection of Victims and Witnesses in Complex Cases have all been implemented.
Within the services indicated, a range of financial and other forms of support are offered. For instance, in the guidance service, it may be necessary to pay transport costs for the victim to travel to the Public Prosecution Service or to hire a sign language interpreter if the victim is unable to communicate through spoken language, etc. Protection service measures range from police patrols, to ongoing police escorting, installation of alarms, relocation, payment for travel, psychological and/or psychiatric support, requesting of court hearing protection measures, etc. Support, measures may include items such as payment of travel to attend a stage of the proceedings or the oral hearing, food expenses, accommodation, and so forth. In its annual budget and specifically its fund for financial contributions to victims and witnesses, the Public Prosecution Services makes provisions for measures involving expenses to meet the needs of victims and witnesses of all types of crimes.
Within this framework, victims of human rights abuses are assisted by the Public Prosecution Service by applying the Guidance, Protection and Support model through which they are given the corresponding services, i.e. guidance, protection and support, as described above, if the abuses constitute a crime.
Lastly, because human rights abuses may be committed by companies with the capacity to generate conditions of intimidation that are difficult to neutralize through the application of ordinary protection measures, the Victim and Witness Protection model for "complex cases" should also be mentioned. The aim of this model is to provide immediate and effective specialized protection to those who have testified or are due to testify in criminal proceedings as victims, witnesses or experts, and whose position of exceptional risk calls for the preparation and implementation of a protection strategy. This support is also available to the families of those who testify. A Regional Protection Board, is established as an advisory body of the Regional Public Prosecutor for this purpose. This board is made up of staff from the Public Prosecution Service and the Investigative Police and Carabineros of Chile.
Access to remedy: What steps have been taken to develop new non-judicial remedies, improve existing mechanisms, and reduce barriers for victims?
The following answer was provided in response to the questionnaire of the United Nations Working Group on human rights and business (questions Nos. 30 and 32 of the questionnaire).
Since Chile adopted the Guidelines and was required to set up a National Contact Point, the effectiveness of this tool has been strengthened. Requests for information have been responded to opportunities for mediation and conciliation have been afforded with a view to resolving problems related to alleged infringements of the Guidelines. Chile's NCP has devised a procedure to resolve cases and an initial questionnaire to support parties that may need to submit a case to the NCP. This information is available on Chile's NCP website: [link]
With regard to consumer rights, the National Consumer Service (SERNAC) is the state institution responsible for ensuring that the rights of consumers are respected and for implementing a policy to protect the rights of financial consumers by promoting fair, efficient and competitive markets for that purpose. SERNAC's mission is to inform, protect, educate and promote citizen participation, and to foster consumer safety. Between 2010 and 2013, more than 360 collective mediations were carried out with the aim of reducing dispute timeframes and increasing compensation for consumers. During that same period, 56 class actions were brought against private companies (La Polar, CENCOSUD and Farmacias).
In 2013, more than 312,000 claims against companies were submitted to the SERNAC.
Concerning labour rights, the Directorate for Labour’s institutional mission is to oversee compliance with labour law, and to inspect, interpret, advise on the correct application of the regulations, and promote parties' self-regulatory capacity with a view to developing balanced relationships between employers and workers. In recent years, one of the measures to promote compliance with national legislation has focused on inspections, which break down as follows: a) 34.3% micro-enterprises; b) 26.1% small enterprises; c) 25.2% large enterprises; and d) 14.3% medium enterprises. In the last four years, 448,593 inspections and 747,000 inspection visits have been carried out.
Over the last four years, 12,493 complaints concerning fundamental rights were lodged, including 3,564 confirmed as affecting fundamental rights, 1,456 settled through mediation, and 413 referred to the courts.
During the same period, the Directorate for Labour carried out 2,501 good offices assistance actions on behalf of 390,785 workers. An agreement was reached in 59.2% of the actions. A total of 1,646 collective bargaining arrangements benefiting 190,000 workers were completed thanks to the Directorate of Labour's assistance.
Access to remedy: For companies headquartered in your country or their subsidiaries, has your government taken steps to enhance accountability for human rights impacts abroad?
The following answer was provided in response to the questionnaire of the United Nations Working Group on human rights and business (questions Nos. 18, 19 and 28 of the questionnaire).
In accordance with the obligation to bolster the effectiveness of the Guidelines through promotion activities, the National Contact Point (NCP) produced a leaflet in order to disseminate both the Guidelines and the NCP’s role. This leaflet was sent to all of the embassies and trade missions. In addition, several different training activities have been performed since Chapter IV on human rights was included in 2011. This training aimed to familiarise the diplomatic staff with the importance of this instrument. Finally, the NCP participated in an activity organised by the Colombian NCP and the opportunity was seized to meet with the Chilean embassy staff, investors and exporters there.
After the Guidelines were updated in 2011 together with the new and comprehensive approach to due diligence and responsible supply chain management, Chile’s NCP, aware of the importance of responsibly monitoring the entire chain, carried out several different dissemination activities to raise awareness among all of the different sectors.
At present, companies are not formally bound to inform the NCP of whether or not they have specific due diligence and management procedures. Nevertheless, in 2013 contact was made with the major state-owned companies in the country to ascertain whether or not they were acting in accordance with the OECD Guidelines. This issue is expected to be pursued.
In principle and as a general rule, cases cannot be brought to Chilean national courts against companies for alleged human rights abuses committed abroad. Chilean courts’ jurisdiction in both civil and criminal law is governed by the principle of territoriality (see articles 76 CPR, and 5 and 157 of the COT). As a result, Chilean courts only have jurisdiction to rule on legal matters promoted within the territory of the Republic of Chile. Their jurisdiction does not go beyond Chilean national borders, or can foreign courts rule on legal cases filed in Chile. Nevertheless, our legal system does include provisions for the exception of territoriality, and this could grant Chilean courts jurisdiction in certain cases.
Article 6 of the Organic Code of the Courts (COT) indicates the crimes and ordinary offences which, perpetrated outside the territory of the Republic, fall within Chilean jurisdiction (see167 COT), and in number 8 it refers to “Those included in treaties signed with other powers”.
Act No. 20,393 contains no special provision for investigating and trying events occurring outside Chile in Chilean courts. Furthermore, its scope for material application is highly limited. Therefore, a Chilean court with criminal jurisdiction could not examine and try human rights cases since international human rights treaties signed by Chile neither define nor sanction crimes, but rather establish principles that must be upheld in other instances and even be considered sources of ius cogens.
Not withstanding this, by virtue of article 6 of the COT, should an international treaty specifically define and sanction criminal liability of legal persons in the case raised, then Chilean courts could examine these cases.
Civil suits involving compensation for damages stemming from human rights violations could be raised before civil courts with jurisdiction according to general legislation because there is no special legislation regulating these matters. Here, given the legal vacuum in Chilean legislation, general legislation refers to the international civil legal jurisdiction as provided for in the Code of International Private Law. According to articles 318 and the following articles of this Code, Chilean civil courts only have jurisdiction when there is a pact of acquiescence between the parties or else when the defendant has either its domicile or residence in Chile. It is important to remember that a great deal of jurisprudence has been handed down by the Chilean Supreme Court on civil compensation stemming from the violation of human rights, and that this criterion has long been upheld by the Inter-American Court of Human Rights based on the principle of conventionality control to which all state bodies are bound.
What, if any, form of support would your government welcome the most to help advance its actions to improve companies’ impacts on human rights?
Chile is currently addressing the challenge of implementing the Guiding Principles. The country is at an early stage where capacity building, both within and beyond the state, is essential. The Ministry of Foreign Affairs is working to opportunities for internal debate on the subject. On this point, capacity building is crucial so that all actors understand the scope of the Guiding Principles. Broad, open and informed national dialogue must therefore be stimulated. In this respect, we are grateful for any support that your organization can give us on training, dissemination and discussion of the subject in Chile.
Chile has also strongly encouraged consideration of this topic in the regional level by introducing a resolution addressing implementation of the Guiding Principles at the last UN General Assembly. We also believe that any technical assistance and support that can be provided to foster dialogue and exchange best practices in the region involving the objective proposed in the resolution would be useful.
Please share with us any further comments, including ideas for future collaboration and shared learning to advance business & human rights.
In addition to the points raised in relation to the spreading and encouragement of dialogue with the aim of implementing the Guiding Principles, examination and analysis of international best practices on the different methodologies used to develop a National Action Plan could be useful. Analysis of the processes through which National Action Plans have been developed in the countries where they are currently in place could be useful for this purpose. We think that it could also be interesting to compare and analyse the countries where National Action Plans on business and human rights as well as National Action Plans on corporate social responsibility including a human rights dimension have been carried out.. Analysis could be done on the reasons behind the process, on the advantages of doing it one way or another, and on the points of convergence.