Brazil, like many countries in the Global South, has long witnessed the perversities of corporate human rights violations, such as the emblematic Mariana (2015) and Brumadinho (2019) dam disasters, the expansion of agribusiness frontiers resulting in the expulsion of traditional peoples from their land, and the record inclusion of employers in the “Dirty List of Slave Labor,” a public registry of employers who have subjected workers to conditions similar to slavery.

The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, a fundamental step in the development of national and regional regulations of Business and Human Rights (BHR) worldwide, represented a benchmark for institutional developments in Brazil. Below, we aim to present how Brazil has endorsed and attempted to integrate the UNGPs into its domestic regulatory framework in recent years, mainly through the enactment of a Federal Decree, followed by a Resolution enacted by the Brazilian National Human Rights Council, and currently through a working group established to develop the National Action Plan and a Legislative Proposal under discussion at the National Congress.

Domestic Initiatives

Civil society in Brazil has been very active and engaged in responsible business conduct and the BHR agenda. The most important regulatory initiative at the moment is Legislative Proposal (PL) 572/2022, which was authored collectively by four members of parliament in 2022 and is currently under discussion at the House of Representatives. It aims to establish a National Framework on Human Rights and Business and is the result of a collective initiative involving academia, civil society organizations, and legislators. The proposal establishes a mandatory human rights due diligence process for companies and goes beyond this threshold, when it holds companies accountable for human rights violations. According to the NGO Justiça Global, this protective legal framework, which evolved within a human rights logic throughout the past 10 years, constitutes the distinct feature of the Brazilian proposal.

The first initiatives to discuss this issue within the public sphere started in 2016, when the Office of the Federal Prosecutor for Citizen’s Rights (PFDC) established an internal working group on Human Rights and Business, as requested by a group of civil society entities.

In 2018, the same institution issued Technical Memorandum n. 7/2018, which mentions the historical record of human rights violations by companies in Brazil, the tension between business activities and human rights, and the need for stricter standards for human rights protection. It acknowledges civil society and academia’s criticisms towards the UNGP, deeming it an insufficient framework to address the issue of violations, as it emphasizes the adoption of voluntary policies and prioritizes the perspective and language of companies, to the detriment of that of victims and affected individuals, among other reasons (Office of the Federal Prosecutor 2018). 

In December 2018, the federal government issued Federal Decree 9.571/2018, establishing the National Guidelines on Business and Human Rights, which endorsed and reproduced the UNGP content and structure. This document was criticized for the lack of public participation and dialogue in its conception. Fifteen months later, the Brazilian National Human Rights Council (CNDH) enacted Resolution n. 5/2020, which regulated the National Guidelines established by Decree 9.571/2018. This resolution acknowledges the need for refinement and complementation in light of the several criticisms raised by civil society organizations, such as the lack of public consultation, and the prevalence of terms related to the logic of soft law and the voluntarist logic of the UN Guiding Principles. This document incorporated contributions by civil society groups and covered a broader spectrum of human rights protections, embracing a logic of reparation oriented by the principle of centrality of victims. (Mansoldo & Roland 2023)

Nevertheless, the National Guidelines approved by the federal decree did not replace the need for a Brazilian National Action Plan (NAP), as recommended by the UNGP framework. In the aftermath of the highly contested 2022 presidential elections, the new administration established a working group to develop the National Policy on Human Rights and Business, revoking the validity of the 2018 National Guidelines. The working group comprises representatives from various agencies of the federal administration and will engage with specialists and representatives from other public and private entities, as well as civil society. It convened in February 2024 and is set to deliver its report in 180 days. More recently, federal government authorities have also expressed support for the legislative proposal PL 572/2022.

International reporting

In parallel to these institutional developments at the domestic level, the Brazilian government acknowledged the BHR agenda in the context of the Universal Periodic Review process, within the United Nations Human Rights Council (UPR). In 2022, as part of the Fourth Review Cycle, the Brazilian report mentions “business and human rights” for the first time. The National report submitted pursuant to Human Rights Council resolutions 5/1 and 16/21 contains an entire subsection titled “Business and human rights.” This subsection consists of six paragraphs, where the Brazilian government describes institutional efforts to advance the UNGPs by enacting the National Guidelines on Business and Human Rights. Four of the six paragraphs deal with human rights violations associated with domestic mining industry activities, mentioning the devastating incidents of Mariana (2015) and Brumadinho (2019), two cities in the state of Minas Gerais. These incidents were caused by the collapse of mining tailing dams and had devastating consequences: an estimated 291 deaths and several thousand displaced; communities were destroyed, and there were lasting negative consequences for the environment. The Report focuses more on measures taken in the aftermath of the events than on the facts of these two environmental disasters, which are meticulously described in a recent documentary by a major Brazilian newspaper: Fantasmas da Lama (Folha de São Paulo, 2023). The Report suggests that the remedies designed to compensate the affected populations were insufficient and that Brazil will undertake efforts to renegotiate with the families, in order to arrive at a more satisfactory compensatory proposal, as well as to adopt preventive measures.

This Report – and its mention of BHR – worked as a catalyst for civil society mobilization around the topic. The summary of stakeholders’ submissions prepared by the UN High Commissioner for Human Rights not only addresses Brazil’s subsection on BHR but also reinforces the government’s poor handling of the aftermath of the disasters in Mariana and Brumadinho. It is of significance that BHR appears in a heading titled “Development, the environment, and business and human rights.” The discussion receives priority, as it comes on page 7 (within the 19-page document).

In our view, the presence of BHR in Brazil’s Report under the UPR process has the potential to trigger a cascade of developments which are likely to bring about more visibility to the issue, such as stronger scrutiny by civil society through shadow reporting and international society through UPR peer reviewing and accountability for future cycles. Ultimately, according to Cosette Creamer and Beth Simmons, state-reporting on human rights is a first step in a chain of events that are associated with higher levels of protection of the reported right on the ground. The authors document empirically the impact that reporting with respect to the Convention Against Torture had on the practice of torture within reporting states (Simmons and Creamer 2019). The key mechanism at work here is precisely organized civil society, through their own reports, touching on media coverage, electoral preferences, and ultimately a change in policy. With this scholarly background in mind, the presence of BHR in the Brazilian report to the Human Rights Council has the potential to contribute to raising the level of protection of rights associated with this framework. This is a natural venue for further research.

Conclusion

Brazil has taken steps to regulate BHR in the aftermath of the approval of the UNGP in 2011. The process accelerated, rather counter-intuitively, during the tenure of President Jair Bolsonaro (2018-2022). Of special interest to the process of legalization of BHR domestically within the Legislative is the proposal of PL 572/2022 by members of parliament, which deals with the domestic regulation of BHR. The steps toward institutionalization of the UNGP domestically undertaken by the Executive consisted of soft legal commitments and, ultimately, they were short-lived. The most important development of this period by the Brazilian government, in our view, was the decision to report on BHR to the Human Rights Council, as part of the periodic review process. The relevance of this political decision stems from recent findings in the scholarly literature that attribute great importance to country reports when it comes to their influence on the outcome of rights protection. With the new administration and its pro-rights agenda, one can observe the first steps toward hard legalization of BHR domestically, notably the beginning of the process to develop Brazil’s NAP and the government’s express support of PL 572/2022. 

The Brazilian process was directly impacted by two disasters involving the mining industry in 2015 and 2019. In our view, the devastating individual, social, and environmental consequences of these events worked as triggers for the advancement of the BHR agenda domestically. Related to these triggers, the polarization of domestic politics, which was instrumentalized by human rights topics, worked as markers for the evolution of soft and hard regulatory efforts in the realm of BHR.