Business-And-Human-Rights

BUSINESS AND HUMAN RIGHTS

Pavel Šturma Vinícius Almada Mozetic (eds.) et al.

2018 Scientific reviewers: Prof. JUDr. Mahulena Hofmann, CSc. (University of Luxemburg)

Papers presented by Czech scholars were supported by Charles University in Prague research projects No. UNCE/HUM/011, UNCE “Research Centre for Human Rights”.

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ISBN 978-3-946915-21-8 TABLE OF CONTENTS

INTRODUCTION 9

PART I. INTERNATIONAL LAW FRAMEWORK 1. Human rights and international investment law Pavel Šturma 13 2. Th e intrinsic connection between human rights and the 2030 Agenda in the context of transnational areas towards international business Rafael Burlani, Marcos Leite Garcia 26 3. Indirect obligations of business entities under Article 8 of the European Convention on Human Rights Alla Tymofeyeva 37 4. Th e OECD Guidelines for Multinational Enterprises and the increasing relevance of the system of National Contact Points Ondřej Svoboda 52 5. United Nations Human Rights Treaty Bodies’ Approach to States’ Obligations in the Context of Business Activities Ivana Machoňová Schellongová 64

PART II. HUMAN RIGHTS CHALLENGES 6. Democracy and the rule of law: judicial activism in Brazil as a challenge for fundamental social rights Lenio Streck 79 7. Land grabbing as a human rights challenge Martin Faix 92 8. Entrepreneurial adverse impacts on human right to social security: a discussion upon concerns set forth in sensitive international standards Carlos Luiz Strapazzon 103 9. Governance, business, and human rights: reﬂ ections about the prohibition of social retrogression in social service deliverance in case of economic crisis Rogério Luiz Nery da Silva, Cristiane Brum dos Santos 115

3 PART III. CONSTITUTIONAL FRAMEWORK FOR NATIONAL IMPLEMENTATION OF HUMAN RIGHTS 10. Business Corporations and the Constitutionalization of Private Law Pavel Ondřejek 129 11. Business and the building of women’s labour market in Brazil through aﬃ rmative action measures Narciso Leandro Xavier Baez, Th aís Janaina Wenczenovicz 138 12. Th e European Union and its Member States and the implementation of the UN Guiding Principles on Business and Human Rights Jitka Brodská, Harald Ch. Scheu 152 13. Czech National Action Plan for Business and Human Rights Martin Archalous 166

PART IV. CORPORATE SOCIAL RESPONSIBILITY AND LABOUR LAW 14. Legal aspects of Corporate Social Responsibility – selected examples from the Czech Republic Jana Ondřejková 173 15. Right to Privacy vs. Employer’s Big Brother Practises Martin Štefko 178 16. Fundamental right to privacy and nominal publication of public servants’ remuneration : analysis of understanding STF NO Re N. 652.777/SP Jeferson Osvaldo Vieira, Vinícius Almada Mozetic 187

PART V. BUSINESS AND HUMAN DIGNITY 17. Selling and owning human body parts in the light of human rights: the ideal and the current practice Petr Šustek, Martin Šolc 201 18. Th e obstetric violence to protect women’s rights and the healthcare business issues Janaína Reckziegel, Cassiane Wendramin 209

4 PART VI. BUSINESS AND HUMAN RIGHTS IN THE INFORMATION SOCIETY 19. Th e protection of personal and sensitive data of the employee in the Brazilian legal system Rodrigo Goldschmidt, Beatriz de Felippe Reis 225 20. Predatory eﬀ ects of corruption on the market and civil society: some indicators Rogério Gesta Leal 238

LIST OF SOURCES 251

5 ABOUT THE CONTRIBUTORS

Pavel Šturma, Professor, JUDr., DrSc., is Professor and head of the Department of International Law, Charles University (Prague), Faculty of Law, Senior Research Fellow at the Institute of Law, Czech Academy of Sciences, and member of the UN International Law Commission (Geneva). He also coordinates the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University (research project No. UNCE/HUM/011). Vinícius Almada Mozetic, PhD., is Post-doctoral researcher in law, University of Vale do Rio dos Sinos – UNISINOS; Professor and member of the research group of Master of Laws, University of West Santa Catarina – UNOESC at Chapecó (Material and Eff ectiveness Dimensions of Fundamental Rights). Martin Archalous, Mgr., is Lawyer and Master in Law from Charles University in Prague. He worked as the secretary of Business and Human Rights Working Group at the Offi ce of the Government of the Czech Republic. Narciso Leandro Xavier Baez, PhD., LL.M., is Chief Academic Offi cer at the “Excellence Centre in Law” and the LL.M Degree in Law at “Universidade do Oeste de Santa Catarina” and a Federal Judge (4th Region) since 1996. Jitka Brodská, Mgr., is Deputy Director at the Ministry of Foreign Aff airs of the Czech Republic (Department of Human Rights), and PhD. candidate at Charles University in Prague. Cristiane Brum dos Santos is Master’s student at the University of Western Santa Catarina – UNOESC (Brazil) and servant of the Federal Regional Court of the 4th Region. Rafael Burlani is Lawyer, Master and PhD. from UFSC. Permanent Professor of the Professional Master in Management of Public Policies of the University of Vale do Itajaí (UNIVALI), Collaborating Professor of the Professional Master in Administration – Management, Internationalization and Logistics of UNIVALI, Professor of CEJURPS at UNIVALI and member of the UNIVALI ODS Nucleus. Martin Faix, JUDr., PhD., MJI, is Senior Lecturer of International Law and a member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University in Prague and Senior Lecturer of International Law at the Palacký University in Olomouc, Czech Republic. He serves also as alternate member for the Czech Republic in the Management Board of the EU’s Fundamental Rights Agency. Beatriz de Felippe Reis is Master’s student in law of PPGD/UNESC and specialist in Labor Law by UNISINOS. He graduated in Juridical and Social Sciences by UFRGS. He is also Judiciary Analyst of TRT4. Rogério Gesta Leal is PhD. in Law from UFSC and UBA, Professor of UNISC and FMP and Judge of the Court of Justice of the State of Rio Grande do Sul, holder of the Fourth Criminal Chamber, which judges crimes committed by Mayors and Councilors and Crimes against Public Administration. Rodrigo Goldschmidt is Post-Doctor in Law by PUC/RS. Doctor of Law from UFSC. Teacher and Researcher of PPGD – Master in Law – UNESC. Labor Judge of TRT12. Marcos Leite Garcia is PhD. in Law from the Complutense University of Madrid, Spain. Professor of the Stricto Sensu Postgraduate Program in Legal Science, Master’s and Doctorate courses and the law degree from the University of Vale do Itajaí (UNIVALI). Rogério Luiz Nery da Silva, PhD., is Post-doctorate in Law, Université de Paris X (France) and Fordham University School of Law (New York, USA). Full Professor at the University of Western Santa Catarina (UNOESC-BRAZIL) and postdoctoral candidate student at the Federal University of Santa Catarina (UFSC). Doctor in Law (UNESA) and Master in Law (UNIG). He is also Professor at the School of Magistrates of the State of Rio de Janeiro (EMERJ) and Professor at the Public Ministry School Foundation of Rio de Janeiro (FEMPERJ). Pavel Ondřejek, JUDr., PhD., is Senior Lecturer at the Department of Legal Th eory, Charles University (Prague), Faculty of Law, and member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. Jana Ondřejková, JUDr., PhD., is Senior Lecturer at the Departemnt of Political Sciences and Sociology of Law, Charles University (Prague), Faculty of Law, and a member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. Janaína Reckziegel is PhD. in Fundamental Rights and New Rights from University Estácio de Sá – RJ. Master in Public Law and University Professor and Researcher of the Post-Graduate Program in Law at the University of Western Santa Catarina – UNOESC. Ivana Machoňová Schellongová, JUDr., D.E.A., is Human Rights Offi cer in the Human Rights Treaties Branch of the Offi ce of the High Commissioner for Human Rights (OHCHR). She is also a lecturer of the international human rights law in the Webster University in Geneva and PhD. candidate at Charles University in Prague. Harald Christian Scheu, Dr.iur., Mag., PhD., is Associate Professor at the Department of European Law of the Faculty of Law, Charles University (Prague) and member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. He serves also as member for the Czech Republic in the Management Board of the EU’s Fundamental Rights Agency. Carlos Luiz Strapazzon is Professor of Constitutional Law. Professor of the Fundamental Rights Program at the Western University of Santa Catarina State School of Law, UNOESC, in Chapecó-SC State, Brazil and Professor of Constitutional Law at University Positivo School of Law in Curitiba, Paraná State, Brazil. He was also Editor- in-Chief of the EJJL (2011-2016). Lenio Luiz Streck is Post-doctorate in Law from the University of Lisbon, Master and PhD in Law from the Federal University of Santa Catarina. Full Professor of the Graduate Program in Law (Master and Doctorate) of the University of Vale dos Rio dos Sinos, Collaborating professor of Estácio de Sá University, Università degli Studi

7 Roma Tre and Faculty of Law of the University of Coimbra. Former Attorney General of Rio Grande do Sul. Ondřej Svoboda, Mgr., is Master in Law and PhD. candidate at the Department of International Law, Charles University in Prague, and member the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. He works at the Ministry of Industry and Trade of the Czech Republic. Martin Šolc, JUDr., Mgr., is PhD. student at the Department of Civil Law and the Centre for Medical Law of the Faculty of Law, Charles University, and member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. Martin Štefko, JUDr., PhD., is Associate Professor at the Department of Labour Law of the Faculty of Law, Charles University (Prague) and a former member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. Petr Šustek, JUDr., PhD., is Senior Lecturer at the Department of Civil Law and coordinator of the Centre for Medical Law of the Faculty of Law, Charles University (Prague) and member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. Alla Tymofeyeva, JUDr., Mgr., PhD., is Senior Lecturer at the Department of International Law of the Faculty of Law, Charles University (Prague) and member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University. Jeferson Osvaldo Vieira is Master and member of the research group on Civil Rights of the Postgraduate Program in Law of the University of Western Santa Catarina. Lecturer in the law degree course at the University of Western Santa Catarina. Magistrate of the Court of Santa Catarina. Th aís Janaina Wenczenovicz is Assistant lecturer and Senior Researcher at the State University of Rio Grande do Sul / UERGS, Professor in the Postgraduate Program in Education / UERGS, Assistant Professor in the Stricto Sensu Post-graduation Program in Education of the State University of Paraná – UNIOESTE, Collaborating professor in the Stricto Sensu Post-Graduation Program in Fundamental Rights / UNOESC, Evaluator of INEP – BNI ENADE / MEC, Member of the Global International Committee on Media and Gender (GAMAG) – UNESCO and Leader of the Research Group CNPq / UERGS Human Rights and Justice: decolonial perspectives. Cassiane Wendramin is Master in Law at the University of Western Santa Catarina (UNOESC).

8 INTRODUCTION

Th is book is the new outcome of the continuing project of cooperation between Charles University in Prague, Faculty of Law (in particular its Research Centre for Human Rights, UNCE) and the University of West of Santa Catarina (Universidade do Oeste de Santa Catarina, Unoesc) in Joaçaba, SC, Brazil. Th e project is in line with the new research strategy of Charles University in Prague, which seeks to promote internationalization of research, including the cooperation with universities in Latin America and the Far East. Th e cooperation between the CU Faculty of Law and the Unoesc was established in the beginning of 2014, on the occasion of the research stay and lecture of Professor Vinicius Mozetic in Prague. Th e next step was the agreement to co-organize two conferences and publications on the subject of International and Internal Mechanisms of Fundamental Rights. Th e fi rst took place in October 2014 in Joaçaba, SC. Th e second took place in October 2015 at the CU Faculty of Law, in Prague. Th e next conference on the topic of “Business and Human Rights” was organized by the Research Centre (UNCE) at the CU Faculty of Law in Prague in November 2017. Some chapters develop, in a largely amended and expanded manner, the ideas presented at the 2017 Prague conference. However, the publication is not just a collection of the papers presented at the conference. Instead, it is a self-contained book which includes chapters written by professors and researchers from the CU Faculty of Law and the Unoesc and/or other universities in Brazil. Th e edited book contains 11 Czech and 9 Brazilian contributions. Th e chapters by Czech authors were written in English; those by Brazilian authors were translated from Portuguese. Th e book appears in 2018 when we commemorate the 70th anniversary of the Universal Declaration of Human Rights (1948). It is a foundational document, marking the modern turn to individual human rights. In spite of its non-binding form (United Nations General Assembly resolution), it sets the basic catalogue of human rights which would be later developed in treaty instruments, both general and specialized. In addition and with reference to the subject of this book, the Universal Declaration also distinguishes itself from later instruments in two important aspects. First, it does not separate yet civil and political rights from economic, social and cultural rights. Second, it also reminds the social context and human obligations as a corollary to human rights. In particular, Article 28 provides that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Th is may be also interpreted in terms of positive obligations of States and even in terms of sustainable development. Next, Article 29 (para. 1) sets forth that “everyone has duties to the community in which alone the free and full development of his personality is possible.” Th is seems to be of special importance for the research in the topic of business and human rights, where the applicability of major human rights treaties is open to questions. Th e book takes inspiration from the Universal Declaration and tries to articulate questions and to give answers to many complex problems of human rights in the contemporary society.

9 Th is book diff ers from many other publications on business and human rights at least in two important points. First, it addresses the topic not only from the point of view of international law but also from constitutional, European and comparative perspectives. Indeed, the topic of business and human rights is a multi-facet problem. It includes various aspects of public and private law. Second, this book aims at discussing the relevant issues of business and human rights on the basis of the existing law (lex lata), both international and internal, and its interpretation by international and national judicial bodies. It does not intend to develop abstract ideas on the possible international legal personality of transnational corporations and other business entities. Th ose ideas are very challenging in theory and very diffi cult for implementation in practice. Neither the book wants to comment on preliminary drafts of a UN treaty on transnational corporations and other business enterprises with respect to human rights, which seems to be the project with an uncertain end that has already caused a sharp division between developing countries and developed countries. Th e chapters are divided into six parts: starting from the international law framework (I.), going to human rights challenges (II.), constitutional framework of national implementation of principles on business and human rights (III.), the concept of Corporate Social Responsibility and implications in labour law (IV.), to the issues of business and human dignity (V.), and business and human rights in information society (VI.). On the Czech side, the authors are mostly professors and junior collaborators (researchers and PhD. candidates) of the Research Centre for Human Rights (UNCE), being specialists in international law, European law, constitutional law, but also other fi elds of public and private law, including civil law, and labour law. While they work in diff erent departments of the Faculty of Law, they share the interest in human rights protection. On the Brazilian side, most of the authors, in particular Professor Mozetic, Professor Baez, Professor Nery da Silva and Professor Strapazzon, come from the University of West Santa Catarina, some others are fellows of other academic institutions in Brazil. Th ey also cover a wide range of fi elds in public and private law, including constitutional law, civil law, social law, and the legal aspects of Internet and information society. In spite of diff erent perspectives of the Brazilian and Czech authors, the book aims at presenting their views on various aspects of human rights in business activities. Both Brazil and the Czech Republic are more than just emerging markets that feature a very dynamic economic growth. For over 25 years, they have been new democratic states, attached to the rule of law and human rights. Taking human rights seriously means to str eamline them into all legal branches in our countries, as well as in both vertical and horizontal relations. Th e book has benefi ted from the reviews by Prof. Dr. Mahulena Hofmannová, as well as from the very careful technical proofreading by Mr. Charles Bird, J.D., LL.M. We would like to sincerely thank them on behalf of all of the co-authors. Prague – Joaçaba, November 2018 Professor JUDr. Pavel Šturma, DrSc. Professor Dr. Vinícius Almada Mozetic

10 Part I.

INTERNATIONAL LAW FRAMEWORK

1 Human Rights and International Investment Law

Pavel Šturma*

1. Introduction Business and investment are usually treated separately from human rights. Th ere is no love at fi rst sight between bilateral investment treaties (BITs) and other international investment agreements (IIAs) and human rights. In fact, such agreements do not mention human rights at all, or do so in a cursory way only, which also has an infl uence on the decisions of investment arbitration tribunals. First, individuals or groups of individuals whose human rights are at stake usually do not have standing in arbitrations between an investor and a host State. Second, defendant States rarely invoke human rights considerations, even if they have obligations arising from universal or regional conventions on human rights. In the absence of human rights provisions in IIAs, States can usually invoke other defences, if possible. Th is is due to various reasons, which can be partly explained by a growing specialization, compartmentalization, or fragmentation of contemporary international law. Indeed, international investment law is a branch of international law, which diff ers in many aspects from human rights law. Th ese branches, namely the respective multilateral or bilateral treaties and agreements, include diff erent sets of rights and obligations. Th ey address two, at least partly, diff erent holders of rights and obligations. Th is is in spite of the fact that both IIAs and human rights treaties impose obligations on States and provide for rights of individuals, natural, or legal persons. It is even possible to argue that both of them aim at protecting similar, if not the same individual rights, namely the right to property, the right to a fair and non-discriminatory treatment, and certain procedural rights, like the access to courts, etc. However, IIAs and human rights treaties operate in quite a diff erent way. States owe human rights to all individuals, human beings in their territory or under their jurisdiction or control. Th ere is no requirement of nationality and no reciprocity. Th e correlative obligations of States operate erga omnes, or more precisely erga omnes partes. In addition, the control and enforcement of human rights, by way of international courts or quasi-judicial bodies, are based on both inter-state and individual complaints. Depending on the specifi c treaty regimes, not only States but also individuals, groups of individuals, and NGOs have standing. Th e international instruments include a large catalogue of rights and freedoms, including possible general or right-specifi c exceptions and limitations. Th is makes it possible to apply human rights not in an absolute manner but rather balance them against the other rights of other persons.

* Professor, JUDr., DrSc., head of Department of International Law, Charles University (Prague), Faculty of Law, member, UN International Law Commission, and coordinator of the Research Centre for Human Rights (UNCE). Th e chapter bears partly on his article Public Goods and International Investments Law: Does the New Generation of IIAs Better Protect Human Rights?, Brill Open Law, 1 (2008), pp. 5-15.

13 On the other hand, protection and promotion of investments, under BITs or some other IIAs, are based on the principle of reciprocity. Th ose agreements only protect investors and investments of one State party in the territory of the other State party. Th e respective treaty instruments usually provide for the rights of investors and the obligations of States. Th ey also allow, in a more or less express way, for asserting certain rights of the host State, representing public interests, but they generally disregard other persons and their rights. Nevertheless, human rights can be viewed as a kind of global public good. As such, they can be used, directly or indirectly, as defences where appropriate. To be able to do so, States should take care in drafting BITs and other IIAs. It seems that a certain disbalance in favour of private interests (investors and their investments) and against general interests has been widely recognized. Th e situation has started to change, in particular over the past ten years. It is certainly a response to a growing backlash against international law and arbitration. In addition to some arbitral decisions, some new model BITs and new IIAs are drafted in a more balanced way. Th ese agreements also include sometimes questioned mega-regionals, such as the Comprehensive Economic and Trade Agreement (EU-Canada, CETA),1 or the project of the Transatlantic Trade and Investment Partnership (EU-US, TTIP), etc. In particular, the public consultation on the Investment chapter of the TTIP, organized by the European Commission in 2014, revealed the above-mentioned backlash.2 Based on the results of this consultation, the EC presented its concept paper “Investment in TTIP and beyond – the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court”.3 As it appears from the title, the EC revisited its existing investment policy. It focused not only on the replacement of the traditional model of the investor-State dispute settlement (ISDS) by an Investment Court but also on further enhancing the right to regulate.

2. Indirect protection of human rights through the incorporation of public goods and interests in IIAs Th e key question is whether new developments in the fi eld of international investment law are capable of contributing to a better protection of human rights. Th is question is not an easy one, in particular because of the diversity of the IIAs and a scarcity of the express provisions on human rights or similar concepts. Such an outcome can be reached by more ways, including more detailed and specifi c drafting of certain absolute standards of treatment (such as the fair and equitable

1 EU-Canada Comprehensive Economic and Trade Agreement (CETA), consolidated version of all chapters (http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf). 2 European Commission, Report: Online public consultation on investment protection and investor-to- state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP), SWD (2015) 3 fi nal, Brussels, 13 January 2015, available at http://trade.ec.europa.eu/doclib/2015/ january/ tradoc_153044.pdf . 3 European Commissioner for Trade, Concept Paper, Investment in TTIP and beyond – the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court, 5 May 2015, available at http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.pdf .

14 treatment clause, FET), delimiting measures which constitute or do not constitute an indirect expropriation and other means. Particular attention is to be paid to articles by which States parties reaffi rm their right to regulate with a view of legitimate policy objectives, such as the protection of public health, security, environment, public morals, social or consumer protection, or the promotion and protection of cultural diversity. As a matter of example, it is possible to mention certain provisions of CETA and some bilateral treaties. Th ey do not usually include specifi c chapters or provisions on human rights. In spite of that, human rights are in fact covered, indirectly, by several chapters and articles aiming at the protection of various public goods and interests. First, they are included in provisions on General Exceptions, which are often modelled after the example of Article XX of the GATT. E.g., IIAs such as Article 18 of the Canadian Model BIT,4 Article 24 of the Norway draft BIT5 or Article 28.3 of the CETA,6 nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures necessary “to protect human, animal or plant life or health”. Although human rights are not expressly spelled out, there is little doubt that such protection relates to the right to life and the right to health. Second, many recent BITs and other IIAs include more explicit provisions on the right of a host State to regulate matters of general interest or to pursue legitimate policy objectives. E.g., Article 8.9 of the CETA or Article 2 of the Investment chapter of the draft TTIP say that the Parties reaffi rm their right to regulate within their territories legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection, or the promotion and protection of cultural diversity. Such a right also appears in some new BITs, including the new 2016 Czech Model BIT, Article 12 (Investment and regulatory measures/objectives).7 In para. 1, this article enumerates the same legitimate policy objectives which appear in the CETA and other IIAs. Moreover, Article 12(2) puts that, for greater certainty, “the provisions of this Agreement shall not be interpreted as a commitment from a Contracting Party that it will not change the legal and regulatory framework”. On balance, it is fair to admit that most Czech BITs are from 1990s or the early years of the new century and do not include such provisions. Th is is typical for most of older BITs, including those of Argentina and other frequently suited countries, which are still in force and are used as a basis for investment arbitrations. Th ird, additional and more specifi c human rights, in particular social rights, can be identifi ed in other chapters or articles of some IIAs dealing with trade and/or investment

4 Art. 18 (General Exceptions), Canadian Model BIT (2012): “1. For the purpose of this Agreement: (a) a party may adopt or enforce a measure necessary: (i) to protect human, animal or plant life or health, …” 5 Art. 24 (General Exceptions), Norway’s Draft Model Treaty. Cf. TITI, A., Th e Right to Regulate in International Investment Law (Baden-Baden: Nomos, 2014), s. 174. 6 EU-Canada Comprehensive Economic and Trade Agreement (CETA), consolidated version of all chapters (http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf). 7 See the text available at: http://www.mfcr.cz/assets/cs/media/Vzor_Vzorova-dohoda-o-ochrane-zahranicnich- investic.docx.

15 and labour. For example, let us mention the CETA Chapter 23. In addition to the right to regulate and to provide for and encourage high levels of labour protection (recognized in Article 23.2), the Parties affi rm, in Article 23.3,8 their commitment to respect, promote, and realize the fundamental principles and rights at work in accordance with the obligations of the members of the ILO and the commitments under the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998.9 Furthermore, each Party shall ensure that its labour law and practices promote the objectives included in the ILO Decent Work Agenda, and in accordance with the ILO Declaration on Social Justice for a Fair Globalization of 2008 adopted by the International Labour Conference at its 97th Session.10 Fourth and more specifi cally related to the obligations of non-state actors to respect human rights, a few IIAs also introduce the concept of Social Corporate Responsibility. As it is well known, traditional BITs include only rights of investors and obligations of host States. Such agreements have been criticized and rightly so.11 Th e fi rst new proposals and model agreements on investment and sustainable development have been advanced by certain NGOs, such as the International Institute for Sustainable Development (IISD).12 Later, such initiatives were taken over by international governmental organizations, such as the UN Conference on Trade and Development (UNCTAD). Th e UNCTAD Investment Policy Framework for Sustainable Development is a document dealing with model provisions for future IIAs.13 Th e Section 7 of the UNCTAD Framework also includes a clause on duties of an investor. It may contain an obligation to respect the laws of the host State and a clause on the denial of rights under the given treaty if the investment is in confl ict with the law of the host State. From the perspective of human

8 EU-Canada Comprehensive Economic and Trade Agreement (CETA), op. cit., pp. 184-185. 9 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998 adopted by the International Labour Conference at its 86th Session. Th ose rights include: (a) freedom of association and the eff ective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the eff ective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. 10 Art. 23.3, para. 2, EU-Canada Comprehensive Economic and Trade Agreement (CETA), op. cit., p. 185. Th ose rights include: (a) health and safety at work, including the prevention of occupational injury or illness and compensation in cases of such injury or illness; (b) establishment of acceptable minimum employment standards for wage earners, including those not covered by a collective agreement; and (c) non-discrimination in respect of working conditions, including those for migrant workers. 11 Cf. MUCHLINSKI, P., Negotiating New Generation International Investment Agreements. New Sustainable Development Oriented Initiatives. In: HINDELANG, S., KRAJEWSKI, M. (eds.), Shifting Paradigms in International Investment Law, More Balanced, Less Isolated, Increasingly Diversifi ed (Oxford: OUP, 2016), p. 41 ff . 12 International Institute for Sustainable Development, Model International Agreement on Investment for Sustainable Development. Negotiators Handbook, 2nd ed., IISD 2005 (revised 2006), see at : www.iisd.org/ pdf/2005/investment_model_int_agreement.pdf 13 UNCTAD Investment Policy Framework for Sustainable Development (2012), UN Pub. UNCTAD/ DIAE/ PCB/2012/5 (http://unctad.org/en/PublicationsLibrary/diaepcb2012d5_en.pdf ); and its new version, UN Pub. UNCTAD/WEB/DIAE/PCB/2015/3.

16 rights bodies, the most relevant document is the Guiding Principles on Business and Human Rights, adopted by the UN Human Rights Council in 2011.14 Even more importantly, however, the above-mentioned UNCTAD model agreement provides that a treaty may include a provision encouraging or requiring an investor to carry out a due diligence of human rights in the enterprise in accordance with the UN Guiding Principles. Moreover, investors may also be required to respect the standards of Corporate Social Responsibility (CSR).15 It is interesting that clauses on CSR have been progressively incorporated into some recent bilateral treaties. For example, Norway’s draft model BIT of 2007 states in Article 32 that parties shall “encourage investors to conduct their investment activities in compliance with the OECD Guidelines for Multinational Enterprises and to participate in the United Nations Global Compact”. Similar concerns are refl ected in the Preamble to the Austrian Model BIT (2011). Th e Canadian Model BIT also includes a provision (Article 16) on CSR providing that “each Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Parties. Th ese principles address issues such as labour, the environment, human rights, community relations and anti-corruption.” Most recently, the CETA also incorporates a preambular paragraph in which Parties “encourage enterprises operating within their territory or subject to their jurisdiction to respect internationally recognised guidelines and principles of corporate social responsibility, including the OECD Guidelines for Multinational Enterprises, and to pursue best practices of responsible business conduct”. Having said that, the present contribution does not claim that the direct incorporation of reference to public goods in general (and human rights in particular) in the Preambles or operative provisions of new IIAs is the only way how to introduce them into international investment law. Th e argument is more nuanced. On one hand, this way seems to be preferable, as such black and white letters in the treaty can hardly be ignored by international arbitral tribunals. First, usual interpretative methods, namely the general rule of treaty interpretation (Article 31, para. 1, of the Vienna Convention of the Law of Treaties, 1969)16 warrant giving eff ect to all rules and principles expressly written or referred to in a treaty. Second, the reference to specifi c rights and documents may limit uncertainty about which human rights are to be applied in the context of international investments. On the other hand, most IIAs in force are old BITs that do not usually contain any such preambular or operative clauses. It is also more likely to adopt labour and other

14 Guiding Principles on Business and Human Rights Implementing the United Nations ‘Protect, Respect and Remedy’ Framework; see www.ohchr.org/documents/issues/business/A.HRC.17.31.pdf . 15 See UNCTAD Investment Policy Framework 2012, p. 58; UNCTAD 2015, p. 107. 16 See Vienna Convention on the Law of Treaties (1969), 1155 UNTS, 331. Article 31 – General rule of interpretation: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

17 rights in preferential trade and investment agreements than in the classical BITs.17 And, even the more recent agreements, which already included some provisions of this kind, often use just exhortatory and non-binding language. It means that human rights and other public goods can make it into international investment law only slowly, by way of new treaty provisions. At best, such new agreements may refl ect a new trend in IIAs but cannot, in and by themselves, change the prevailing content of international investment law.

3. Alternative (mostly interpretative) means However, there are also alternative ways of how to include human rights and other public goods or fundamental values into international investment law. Th ey are diff erent in nature and not equally reliable as to the outcome. Two of them have essentially interpretative character, while the third one relies on the procedural rules. First, human rights or public goods may be incorporated into the IIAs through subsequent agreements or subsequent practice, which establishes the agreement of the Parties regarding the interpretation of the treaty.18 Such subsequent agreements or practice establishing the agreement on interpretation, if adopted by all Parties, refl ect the “common understanding of the parties” and thus provide for the authentic means of interpretation of that treaty, even if these means do not necessarily imply a conclusive eff ect.19 Although such subsequent agreements do not appear often in international investment law, they are not excluded. A notorious example is the interpretative declaration adopted by the NAFTA Free Trade Commission in 2001, on the meaning of the standard of fair and equitable treatment under Article 1105(1) of NAFTA.20 However, this interpretation was generally accepted by investment tribunals, being rejected in the case Pope & Talbot,21 but confi rmed in the cases ADF Group 22 or Mondev.23 Second, potentially the most powerful means of systemic integration of human rights, environmental agreements and other instruments aiming at protection of public goods, seems to reside in Article 31, para. 3(c), of the Vienna Convention, which requires

17 Cf. VAN DUZER, A., Sustainable Development Provisions in International Trade Treaties. What Lessons for International Investment Agreements? In: HINDELANG, S., KRAJEWSKI, M. (eds.), Shifting Paradigms in International Investment Law. More Balanced, Less Isolated, Increasingly Diversifi ed (Oxford: OUP, 2016), p. 175. 18 See Article 31, para. 3: “Th ere shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.” 19 Cf. commentary to draft Conclusion 3 (Subsequent agreements and subsequent practice as authentic means of interpretation), in Report of the ILC, 2016 (A/71/10), pp. 118 ff ., at 132-134. 20 NAFTA Free Trade Commission, 31 July 2001. Cf. YANNACA-SMALL, K., Fair and Equitable Treatment Standard: Recent Developments. In: REINISCH, A. (ed.), Standards of Investment Protection. Oxford: Oxford University Press, 2008, p. 114. 21 Pope & Talbot Inc. v. the Government of Canada, UNCITRAL, Award in Respect of Damages, 31 May 2002. 22 ADF Group Inc. v. USA, ICSID case No. ARB(AF)/00/1, Final Award, 9 January 2003, par. 179. 23 Mondev v. USA, ICSID case No. ARB(AF)/99/2, Award, 11 October 2002, par. 125.

18 taking into account any relevant rules of international law applicable between the parties. However, although investment tribunals should generally apply the Vienna rules of treaty interpretation, including that of Article 31(3)(c), where appropriate, they often refuse to do so. Th e tribunal in Methanex, while rejected the investor’s claim, arrived at the conclusion without applying the Vienna rules on the interpretation of NAFTA provisions. Similarly, though with a pro-investor outcome, the tribunals in the cases Santa Elena24 and Unglaube25 did not even mention the obligations of Costa Rica to protect the natural environment under multilateral environmental treaties. In fact, most investment arbitration awards refer to decisions of other tribunals, but only few of them take into account subsequent agreements and subsequent practice or even any applicable rules of international law according to Article 31(3) of the Vienna Convention.26 It means that, although not entirely absent in some arbitral awards, the Vienna rules on treaty interpretation do not play such a role as they could and should play. While the IIAs, unlike the WTO Agreement, do not expressly provide for such approach, they are international treaties governed by general international law, which also includes the rules on treaty interpretation. Th e tribunals should not just pay a lip service to the Vienna rules but approach interpretation as a single combined operation. Th en all legally relevant aspects, including arguments based on a broader context of the IIAs, need to be considered.

4. Potential use of counterclaims in investment arbitration However, there are also other means beyond the means of interpretation of how to include non-economic considerations. As a matter of jurisdiction, an ICSID tribunal can accept the respondent’s counterclaim based on the alleged violation of human rights. Such a possibility arises from Article 46 of the ICSID Convention which provides: “Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.”27 Until recently, however, ICSID or other tribunals did not accept jurisdiction over human rights counterclaims for a lack of suffi cient legal or factual links between the main claim and the counterclaim.28 For the fi rst time, in the ICSID award in Urbaser

24 Companía del Desarollo de Santa Elena, S.A. v. Costa Rica, ICSID case No. ARB/96/1, Final Award, 17 February 2000. 25 Unglaube and Unglaube v. Costa Rica, ICSID case No. ARB/08/1 and ARB/09/20, Award, 16 May 2012. 26 Cf. BERNER, K., Reconciling Investment Protection and Sustainable Development. A Plea for an Interpretative U-Turn. In: HINDELANG, S., KRAJEWSKI, M. (eds.), Shifting Paradigms in International Investment Law, op. cit., pp. 188-203; ŠTURMA, P., BALAŠ, V., Ochrana mezinárodních investic v kontextu obecného mezinárodního práva [Protection of International Investment in the Context of General International Law], Praha: PF UK, 2012, pp. 46-47. 27 See the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965), at: https://icsid.worldbank.org/en/Documents/icsiddocs/ICSID%20Convention%20 English.pdf 28 See, e.g., Saluka v. Czech Republic, UNCITRAL case, Decision on Jurisdiction over the Czech Republic’s Counterclaim, 7 May 2004.

19 v. Argentina (2016)29, the tribunal accepted jurisdiction over such counterclaim and integrated a human rights perspective into international investment law. Th e claimant, a shareholder in a concessionaire that supplied water and sewerage services in Buenos Aires, commenced arbitral proceedings for violations of the BIT between Spain and Argentina. Th e counterclaim fi led by Argentina alleged that the concessionaire’s failure to provide the necessary level of investment in the business led to violations of the human right to water. Th e tribunal held that a suffi cient connection between the main claim and the counterclaim was established by the manifest factual links between the claims and because the claims were “based on the same investment, or the alleged lack of suffi cient investment, in relation to the same Concession”.30 Arriving on the merits, the tribunal found, on the basis of examination of the arbitral clause, the applicable law clause and other provisions, that the BIT was not a closed system but it enabled the respondent to make a reference to certain legal sources external to the BIT.31 Th e precedential decision of the tribunal has certain strong points. First, it found that although the claimant was a non-state actor, it could also bear human rights obligations in international law. Second, the tribunal referred to several human rights instruments, namely to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), to establish human rights obligations associated with the right to water.32 Furthermore, the tribunal also relied on the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. Quite interestingly, the tribunal also used Article 30 of the UDHR and Article 5, para. 1, of the ICESCR 33 to conclude that in addition to human rights related to the right to water, there was also “an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights”.34 In the end, however, the counterclaim was not successful on the basis of the above interpretation of human rights obligations by the tribunal. It found the origin of the obligation related to the right to water in the concession contract. Next, as the human right to water provided a duty to perform, the only obligation was placed on the State. Consequently, the claimant’s obligation would be based in the concession contract or domestic law.35 However, the tribunal did not have jurisdiction over matters related to Argentina’s domestic law.

29 Urbaser S.A., Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. Argentina, ICSID case No. ARB/07/26., Award, 8 December 2016. Cf. also GUNTRIP, E., Urbaser v. Argentina: Th e Origins of a Host State Human Rights Counterclaim in ICSID Arbitration? EJIL: Talk! (10 February 2017). 30 Ibid., par. 1151. 31 Ibid., par. 1191. 32 Ibid., par. 1196-1107. 33 Art. 5(1): “Nothing in the present Covenant may be interpreted as implying… any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein.” 34 Urbaser v. Argentina, op. cit., par. 1199. 35 Ibid., par. 1208-1210.

20 Nevertheless, the tribunal pointed out that “the situation would be diff erent in case an obligation to abstain, like a prohibition to commit acts violating human rights, would be at stake. Such an obligation can be of immediate application, not only upon States, but equally to individuals and other private parties.”36 However important a breakthrough the Urbaser decision was, we should not overestimate the role of counterclaims in investment arbitration. Th is possibility is based on Article 46 of the ICSID Convention and Rule 40 of the ICSID Arbitration Rules.37 Th is seems to question the possibility for the host State to advance a counterclaim against the investor before ad hoc arbitration tribunals. However, even in the ICSID arbitration, as shown by the Gavazzi case,38 the Tribunal may prefer the textual interpretation of the respective BIT. Th e Tribunal, by a majority decision, did not accept “that the right of the Host State to fi le a free-standing counterclaim in an investment treaty arbitration should be presumed unless expressly excluded by the BIT… Where there is no jurisdiction provided by the wording of the BIT in relation to a counterclaim, no jurisdiction can be inferred merely from the ‘spirit’ of the BIT.”39 In addition, and by contrast to Urbaser, the counterclaim in Gavazzi was an independent claim based upon Romanian law, not a claim based on the alleged violation of international human rights law. According to the view of the Tribunal, the BIT does not indicate that Romanian law would apply to the substance of the dispute either,40 or to the procedural law applicable to this arbitration.41 Th is case thus shows that the accepted counterclaims by the host State remain exceptional in investment arbitration.

5. Another alternative path: a new UN treaty on business and human rights? Th is book aims at discussing the relevant issues of business and human rights on the basis of the existing law (lex lata), both international and internal, and its interpretation by international and national judicial bodies. Th is is the reason why it can pay just a cursory attention to the recent proposals of a binding instrument to regulate business activities with respect to human rights. Although this project is conceived rather as a general, along-standing initiative within the UN Human Rights Council, without a direct link to international trade and investment law, it may have certain, albeit indirect, impact on negotiation and interpretation of international investment agreements (IIAs).

36 Ibid., par. 1210. 37 Cf. Art. 46 of the ICSID Convention (1965): “Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.“ (for the text see https://icsid.worldbank.org/en/ documents/icsiddocs/icsid%20convention%20english.pdf ) 38 Marco Gavazzi and Stefano Gavazzi v. Romania, ICSID Case No. ARB/12/25, Decision on Jurisdiction, Admissibility and Liability, 21 April 2015. 39 Ibid., par. 154. 40 Ibid., par. 156. 41 Ibid., par. 158.

21 Th e attempts to regulate on international level the activities of business enterprises, in particular those of transnational corporations (TNCs), are not of recent vintage. To better understand the current “Zero draft legally binding instrument”,42 one should also recall previous cycles of negotiating various, generally non-binding instruments on TNCs. It is possible to discern three cycles, called also “high tides”.43 Th e fi rst cycle started in the early 1970s when, on the basis of the recommendation to the UN Economic and Social Council, the Commission on Transnational Corporations and the UN Centre on Transnational Corporations (UNCTC) were established (1974). Its work culminated with the 1990 draft of the United Nations Code of Conduct on Transnational Corporations.44 However, the Draft Code was not offi cially adopted due to signifi cant diff erences between developed and developing countries.45 Th e 1990 Draft Code sought to deal with both responsibilities of TNCs and their rights (related to the treatment accorded by host States). Th e second aspect is not present in more recent documents, perhaps due to the proliferation of bilateral investment treaties (BITs) with arbitration clauses that are able to secure better the rights of TNCs. Although human rights were not the primary concern of the Code, its paragraph 14 stated that TNCs “shall respect human rights and fundamental rights and fundamental freedoms in the countries in which they operate”.46 Th e second cycle has its origins in 1998 when the Sub-Commission on the Promotion and Protection of Human Rights decided to establish a Working Group on the Working Methods and Activities of Transnational Corporations. Th e Working Group drafted and presented in 2003 to the Sub-Commission the fi nal draft of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. Th is document was adopted by the Sub- Commission (a subsidiary expert body).47 However, the document provoked criticism from several TNCs and governments. Subsequently, the Human Rights Commission (an intergovernmental body) rejected the Norms in 2004 for having “no legal standing”.48 Instead, the Commission, during its 2005 session, requested the Secretary General to appoint his Special Representative (SRSG).

42 See Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (Zero Draft, 16. 7. 2018), at: www.ohchr.org/documents/ hrbodies/hrcouncil/wgtranscorp/session3/draftlbi.pdf. 43 See DEVA, Surya, Alternative Paths to a Business and Human Rights Treaty. In: LETNAR ČERNIČ, J., CARRILLO-SANTARELLI, N. (eds.), Th e Future of Business and Human Rights. Th eoretical and Practical Considerations for a UN Treaty. Cambridge-Antwerp-Portland: Intersentia, 2018, pp. 17-23. 44 See Draft Code on Transnational Corporations. In: UNCTC, Transnational Corporations, Services and the Uruguay Round, Annex IV (1990), p. 231. 45 MUCHLINSKI, P., Multinational Enterprises and the Law. Oxford: Blackwell Publ., 1999, pp. 593-597. 46 Draft Code on Transnational Corporations. In: UNCTC, op. cit., p. 234, para. 14. Cf. DEVA, S., Alternative Paths to a Business and Human Rights Treaty, op. cit., p. 18. 47 Sub-Commission on the Promotion and Protection of Human Rights. Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. UN Doc. E/ CN.4/Sub.2/2003/12/Rev.2 (13. 8. 2003). 48 UN Doc. E/CN.4/DEC/2004/116.

22 Th e SRSG John Ruggie then took a diff erent approach called by him a “principled pragmatism”. Th e new approach proved to be more successful, as the fi nal, non-binding document, called the UN Guiding Principles on Business and Human Rights, was adopted by the UN Human Rights Council in 2011.49 Th e principles include three pillars, restating fi rst the obligations of States to protect individuals from violations of human rights by business enterprises (Pillar 1). Next, Principles also include responsibilities of corporations to protect human rights in their business activities, including human rights due diligence (Pillar 2). Finally, the Pillar 3 includes access of individuals to eff ective remedies for human rights violations. Th e Guiding Principles are currently the most authoritative statement on responsibilities in the area of business and human rights.50 Nevertheless, they are just a non-binding “soft law” instrument. It was critically pointed out that the Guiding Principles lacked any enforcement mechanism or accountability for either States or corporations, having thus limited practical impact for victims.51 In other words, the practical impact relies on the commitment of States to operationalize the Principles through their domestic policies and regulations. Th e main tool for implementation of the Guiding Principles is the adoption of National Option Plans (NAPs).52 Such NAPs have been adopted, apart from US and Colombia, mostly in the EU countries, including the Czech Republic.53 However, the Guiding Principles were considered insuffi cient by a number of States, mostly developing. Th is brings us to the third high tide of negotiation. It started in June 2014 when the Human Rights Council adopted Resolution 29/9 to establish an open-ended intergovernmental working group (IGWG) with the mandate to develop a binding instrument to regulate business activities with respect to human rights.54 Th e resolution, drafted by Ecuador and South Africa and sponsored by Bolivia, Cuba and Venezuela, was adopted by 22 votes in favour, 14 against and 13 abstentions. It revealed a division between developing and emerging countries, on one side, and developed countries, on the other.55 Without going to details, it suffi ces to note that, in July 2018, the IGWG released the so-called “zero draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”.56

49 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31 (17. 3. 2011). 50 VAN HO, T. L., ‘Band-Aids Don’t Fix Bullet Holes’: In Defence of a Traditional State-Centric Approach. In: LETNAR ČERNIČ, J., CARRILLO-SANTARELLI, N. (eds.), Th e Future of Business and Human Rights, op. cit., p. 114. 51 Ibid., p. 116. 52 MACCHI, C., A Treaty on Business and Human Rights: Problems and Prospects. In: LETNAR ČERNIČ, J., CARRILLO-SANTARELLI, N. (eds.), Th e Future of Business and Human Rights, op. cit., p. 65. 53 See ARCHALOUS, M., Czech National Action Plan for Business and Human Rights, infra, in this volume, 168 ff . 54 UN Doc. A/HRC/26/L.22/Rev.1 (25. 6. 2014). 55 See MACCHI, C., A Treaty on Business and Human Rights: Problems and Prospects, op. cit., p. 64. It is worth noting that the Czech Republic (as well as other EU countries) voted against, Brazil (as well as Argentina, Chile, Costa Rica, Mexico and Peru) abstained. 56 Cf. PIAZZA, M., Th e “Zero Draft”: Missed Opportunity or the Beginning of a Revolution? (available

23 It is a draft treaty where, for the fi rst time, business actors are explicitly mentioned as having human rights obligations. Nevertheless, it is to be a treaty drafted by States and for States, which means that none of the operative clauses includes direct human rights obligations for business enterprises.57 Th ey are only mentioned in the preamble where the drafters underline that “all business enterprises, regardless of their size, sector, operational context, ownership and structure shall respect all human rights, including by avoiding causing or contributing to adverse human rights impacts though their own activities and addressing such impacts when they occur”. Otherwise, the Zero Draft is based on inter-governmental cooperation and includes the three main obligations of States. First, States must ensure that “all persons with business activities of transnational character within such State Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations throughout such business activities, taking into consideration the potential impact on human rights” (Article 9). Second, States have to guarantee the right of victims of human rights violations to “fair, eff ective and prompt access to justice and remedies in accordance with international law” (Article 8). Th is provision needs to be read together with the provision on jurisdiction which is broadly defi ned (Article 5). Th e competent court will be the one belonging to the State where such violations occurred or in which the alleged abuser has its “statutory seat, or central administration, or substantial business interest, or subsidiary, instrumentality, branch, representative offi ce or the like”. Th e third requirement focuses on cooperation between States in dealing with transnational human rights cases.58 Th e recognition of the principles of sovereign equality of States and of the non-intervention in the domestic aff airs (Article 3, para. 1) needs to be balanced by the robust mutual legal assistance (Article 11). Finally, it is worth noting that the Zero Draft addresses its relationship with investment treaties. On the one hand, its draft articles are “without prejudice to any obligation incurred by States under relevant treaties or rules of customary international law” (Article 13.3). On the other hand, investment agreements shall be interpreted in a way that is least restrictive on obligations under this Convention. When it comes to any future trade and investment agreements between States Parties, they “shall not contain any provisions that confl ict with the implementation of this Convention” (Article 13.6).59 At fi rst sight, such provisions seem to have a strong potential impact on the reshaped structure of international investment law. However, the deep division between developing and developed countries as to the need for and the content of a new treaty on business and human rights warrants a more cautious approach. Even if the Zero Draft becomes eventually the binding treaty, it will provide obligations only for its States Parties. In view of the negative attitude of many developed (and capital-exporting) countries, it is not very likely that such new treaty would have derogating or amending eff ects on

at: www.senseandsustainability.net/2018/11/08/the/zero-draft-missed-opportunity-or-the-beginning-of- a-revolution). 57 Ibid., pp. 1-2. 58 Ibid., p. 2. 59 Ibid., p. 3.

24 the existing IIAs. On balance, it may indeed strengthen the current backlash against the existing investment agreements and, in particular, against the ISDS, namely the investment arbitration. To end with a more optimistic perspective: irrespective of the actual success or failure of a treaty on business and human rights, the Zero Draft or other outcomes of the IGWG work made it to the current and future discourse on the topic that remains extremely important. As it often happens, even the fi rst, generally rejected project of a new instrument may lead to new rounds of negotiation capable to bring more tangible results.

6. Conclusion To conclude, it seems that the award in Urbaser opened the doors for a human rights counterclaim by the host State. On balance, it did not give full eff ect to human rights on the merits. It remains to be seen which sources and which human rights can establish obligations for non-state actors in general and in the investment arbitration in particular. Th ose who wish to rely on interpretative tools or by way of counterclaims in investment arbitration may be disappointed. However, in view of the recent developments the question is whether the glass is half-full or half-empty. Anyway, the implicit inclusion of human rights and other public goods in international investment law by way of interpretation is always contingent on various factual and legal elements. Consequently, it cannot ensure that all tribunals will arrive at the same or at least similar conclusions. Th at is why the trend to include explicit references into the newly negotiated IIAs seems to be advisable. Th is way seems to be more realistic (and some practical examples of modern BITs or other IIAs are available) than an alternative path. Even if the current version of a draft UN treaty on business and human rights fails to satisfy high expectations, it may nonetheless stimulate the future work on this extremely important topic.

25 2 The Intrinsic Connection Between Human Rights and the 2030 Agenda in the Context of Transnational Areas Towards International Business

Rafael Burlani 1 Marcos Leite Garcia 2

1. Introduction Th e main purpose of this article is to explain a necessary connection in the operation of international business with Human Rights. A refl ection on Agenda 2030 – SDGs is made, in the context of a transnational area.3 Th is area is gradually becoming more and more essential for dealing with fundamental issues of diff use and cross-border rights, such as the right to security in the production and consumption of goods through a globalized economy, the right to peace, the right to a healthy environment, among others. It is indispensable for the construction of these spaces, in which demands of global interests are addressed, the necessary quality of sustainability, should they be contextualized in the full guarantee of Human Rights. Certainly, there is a peremptory change in the global scenario, in view of the increasing acceleration of technological, legal, business and political transformations, especially in what impacts Human Rights as a result of the advent of the speed of communications and mobility in general, the common community calls for concrete measures to guarantee these rights, so as to enable the sustainability of human, social and environmental development. In this context, in which something new is installed and brings a scenario of instability and, why not, of chaos, at the international level, it is necessary to determine assumptions of convergence among all actors in political, legal and business fi elds – so that the abuses are avoided, in the case of this study, in the particular scenario of globalization of business.

1 Lawyer. Master and PhD from UFSC. Permanent Professor of the Professional Master in Management of Public Policies of UNIVALI. Collaborating Professor of the Professional Master in Administration – Management, Internationalization and Logistics of UNIVALI. Professor of CEJURPS at UNIVALI. Professor member of the UNIVALI ODS Nucleus. Email: [email protected] – www.univali.br. 2 PhD in Law from the Complutense University of Madrid Spain. Professor of the Stricto Sensu Postgraduate Program in Legal Science Master’s and Doctorate courses and the law degree from the University of Vale do Itajaí (UNIVALI). Email:[email protected]. Address: University of Vale do Itaja, Pro-Dean of Research Postgraduate Extension and Culture, Postgraduate Course Stricto Sensu in Juridical Science Rua Uruguais, 458, Block 16, 3rd fl oor Center 88302202 Itaja, SC Brazil. 3 Th e Sustainable Development Goals (SDGs) are confi gured as a global agenda adopted at the United Nations Summit on Sustainable Development for actions to eradicate poverty, food security, health, education, gender equality, economics, culture, environment environment, among others.

26 Th e hypothesis is that the sustainability of international business in the transnational area is linked to the full connection with the guarantee of Human Rights, in which, the hypothesis of building this negotiating area without the guarantee of Human Rights – that is, outside a fully democratic and sustainable society – delegitimizes the process of international business. Th e German philosopher Jürgen Habermas in the book Time of Transitions 4 foresees the construction of new spaces from the perspective of expanding the sphere of infl uence of the experience of democratic societies beyond national borders. In Habermas’s view, such a process of democratization can be reproduced in what he calls the postnational constellation (Die postnationale Konstellation)5 on the path of an internal policy aimed at the world at large, that is, open to a cosmopolitan legal order capable of functioning without the structure of a world government,6 capable of functioning without the structure of a world government.7 It is well known that the evolution of human rights constitutes a moment of discussion and refl ection of the dignity of human life in all scenarios of connections, be it national or international. Th e recent history of the world economy indicates caution in stating how institutions and relations will be between the diff erent blocs of nations that will compose the International Community. Even so, the need to address issues related to the phenomenon of transnationality, in a more radical sense, without fear of committing exaggerations, is inevitable and evident: it is vital for the future of the human race to deal with the issues we call transnational demands in the fi eld of this article, the demand for businesses aimed at the production of goods and services. Th e phenomenon of transnationality comes from the so-called transnational demands that are related to the question of the eff ectiveness of so-called diff use and cross-border rights. In this way, the transnational demands are fundamental questions for the human being and that have been classifi ed by the doctrine as “new” rights. One fact is impossible to avoid: transnational issues must be aproached and addressed by the entire international community diff erently from that provided for in existing domestic and international legislation. Th e discussion on transnational demands fi rstly revolves around the question of war and peace. Th is is certainly the fi rst great transnational and diff use question of humanity. Human Rights are a phenomenon of the modern world and are fi rst conceived and theorized as Rationalist Natural Law8 and it will be precisely in a debate on the theme

4 HABERMAS, J. Time of Transitions. Rio de Janeiro: Tempo Brasileiro, 2003. Original title: Zeit der Übergänge. 5 HABERMAS, J. Th e National Constellation: Political Essays. Translated by Marcio SeligmannSilva. Sao Paulo: Littera Mundi, 2001. Original title: Die postnationale Konstellation: Politischen Essays. 6 HABERMAS, J. Time of Transitions. Specifi cally chapter 2, p. 37-74. 7 HABERMAS, J. Time of Transitions. Specifi cally chapter 6, p. 175-193. 8 One can not speak properly of fundamental rights until modernity. When we affi rm that it is a historical concept of the modern world, we mean that the ideas that underlie its root, human dignity, freedom or equality, for example, only begin to pose from the rights at a particular moment in time. political and legal culture. Before there was an idea of dignity, freedom and equality that we fi nd dispersed in classic authors such as Plato, Aristotle or St. Th omas, but they do not unify in this concept. PECES-BARBA, G. Curso de Derechos Fundamentales: teoría general. Madrid: Universidad Carlos III de Madrid, 1995. p. 113-114.

27 of war and peace that Hugo Grotius will start the concept.9 Th e right to peace continues to be, especially after the process of internationalization of human rights, especially after the horror of World War II, a theme still under debate and now classifi ed as a diff use right (and even cross-border when dealing with internal confl icts) or at least a diff use issue, since there is a polemic about classifying peace as a fundamental right.10 Th e following demands will be all more recent such as the environment, consumer rights, the right to the development of peoples, etc. International business, on the other hand, is projected as an unfolding of economic thought, often uncritical, in which there are few reports of unworthy practices, such as the fact that some foreign multinationals have brought to Brazil heavily damaging environmental parks, public health and its workers, thus banned in Europe and the United States in the 1970s, and their operations causing a wide variety of damages, including social, environmental and cultural damages, including irreversible losses, such as the death of workers.11 Th is study is based on the understanding that there is an immense vacuum in the transnational areas regarding the need of market and fi nancial multinationals, in the context of international business, to guarantee eff ectively the fulfi llment of Human

9 According to tradition, Natural Rationalist Law would have been conceived almost by chance from the thesis of the Dutchman Hugo Grotius, in the historical book De Jure Belli ac Pacis (published in 1625), in the sense that the Natural Law would exist even though God did not because it is a matter of the natural rights of a rational being “(...) which can not be conceived without a great crime, that is, that there was no God or that human aff airs are not objects of his care. GROTIUS, H. O Direito da Guerra e da Paz. Volume I. I juí: Ed. Unijuí, 2004. p. 40. Although we must consider the criticism of Herrera Flores that casts doubt on the true intentions of Grotius (HERRERA FLORES, J. Los derechos humanos como productos culturales: crítica al humanismo abstracto. Madrid: Catarata, 2005. p. 94), there is no doubt that it will be from this conception of Natural Law of the Dutch thinker that the following authors began to treat the question diff erently from the Classic Natural Law of religious background and consequently the natural right happens to be gradually separated from the religion by the following and historical free thinkers like Samuel Pufendorf, Chistian Wolf and Chiristian Th omasius among others. On the issue at hand, see: GARCIA, M. L. Th e contribution of Christian Th omasius to the process of formation of the ideal of fundamental rights. MARTEL, L. C. V. (Org.). Contemporary Studies of Fundamental Rights. Rio de Janeiro: Lumen Juris, 2009. p. 3-26. 10 Regarding the controversy that results from the diffi culty of classifying the right to peace as human rights, the following words and the aforementioned article by Maria Eugenia Rodríguez Palop are interesting: “I know very well that the defense of the right to peace as a human right is not only not habitual but has been aggressively answered by a good part of the theorists who dedicate themselves to these issues, with the aggravating circumstance that some of these criticisms are widely founded. Th e right to peace, in addition, has not been suffi ciently studied or analyzed in depth, but gives the impression that it has left the fi eld of play before starting to play. And that’s what, I think, you have to try to avoid. Avoid a fundamentalism of human rights that leads us to exclude, without discussing them, demands that are frequently found in public spaces and that have been raised by a large number of social movements “. PALOP, María Eugenia. El derecho a la paz: un cambio de paradigma. In CAMPOY CERVERA, I.; REY PÉREZ, J. L.; (Orgs.). Desafíos actuales de los derechos humanos: refl exiones sobre el derecho a la paz. Madrid: Dykinson, 2006. p. 51. In the same way, for an interesting debate on the right to peace, see: RUIZ MIGUEL, A. Do we have the right to Peace. Anuario de Derechos Humanos, n. 3, 1985, p. 397-434. 11 RODRIGUES, C. Public enemies: corporate crimes and necrocorporations. Th esis (Doctorate in Administration) – School of Business Administration, Fundação Getulio Vargas, 2013.

28 Rights.12 Th ere is a lack of a propositive agenda for this. Th is chapter places Agenda 2030 as the turning point for change in this scenario.

2. Transnational demands and new rights Transnational demands are justifi ed by the need to create public spaces to deal with issues concerning new phenomena that will be ineff ective if treated only within the space of the traditional national state. Th ese new phenomena identify with the so-called “new” rights, or “new” fundamental rights. In order to avoid misunderstandings of a merely ideological nature, it is certainly necessary to affi rm that transnational demands do not only deal with issues related to economic globalization, as some authors claim, but with fundamental rights issues related to the survival of the human being on the planet. Economic globalization may be the basis of some transnational issues, but it is not its main source and foundation, the main justifi cation for the need to transnationalize the law is the need to protect the human being and within this perspective is also the protection of its natural surroundings. Fundamental rights are a phenomenon of Modernity, because the conditions for its fl owering occur in the so-called transit to modernity, according to the thesis of the lines of evolution developed by Professor Peces-Barba.13 Th us, after the fi rst process of positivization which will be marked by bourgeois revolutions and liberal ideology, fundamental rights will change throughout the history of the next two centuries and will include new demands of the changing society. Fundamental rights are not a static concept in time and their transformation accompanies human society and consequently their needs for protection. It should be emphasized that in Modernity human rights are born as fundamental rights, that is, they are fi rst conceived as domestic law,14 as rights of the citizen, but still national-domestic law with broad vocation and universal pretension as generic human rights, referring to all human beings. Th e phenomenon of the universality of Human Rights is diff erent from the phenomenon of internationalization of it. Th e universalization is prior to it, because it already occurs in the theoretical construction of rights, still as Rationalist Natural Law, and follows its course from the fi rst declarations of rights.15 On the other hand, the internationalization of human rights is a much

12 Th is assertion of the authors without any fear of falling into the impropriety of generality, in which, the exception, is insignifi cant. See the maquiladora system in Mexico and Paraguay. 13 PECES-BARBA, G.. Curso de Derechos Fundamentales, p. 113-144 14 PECES-BARBA, G.. Curso de Derechos Fundamentales, p. 113-144 15 Take, for example, the declarations resulting from bourgeois revolutions, since both the Declaration of the Rights of Man and the Citizen of 1789, as well as the Declaration of American Independence of 1776, refer to a universal citizen. See the documents COMPARATO, F. K. Th e historical affi rmation of human rights. 5.ed. São Paulo: Saraiva, 2007, p. 158 and p. 108. On the question of the universality of fundamental human rights, see in general terms its defense in PÉREZ LUÑO, A. E. Th e Universality of Human Rights and the Constitutional State. Bogotá: Externado University of Colombia. 2002. We also fi nd an interesting and diff erent defence of universality of human rights in the excellent text of Indian Amartya Sen: SEN, A. Development as Liberdade. São Paulo: Companhia das Letras. 2000. Still the subject is cleverly treated by Jesús González Amuchastegui, unfortunately already deceased the Spanish teacher left us an excellent legacy, GONZÁLEZ AMUCHASTEGUI, J. Autonomy, dignity and citizenship: A theory of human rights.

29 more recent process, since it is basically a result of the barbarism of war, of the desire of never having the Second World War again, with the advent of the United Nations and the construction of at least three international human rights protection systems (UN, Organization of American States and Council of Europe) and has as an initial documentary landmark the fundamental Universal Declaration of Human Rights of 1948.16 Th ere is no doubt that the maintenance of peace and the defense of human rights, as embodied in Article 1 of the UN Charter (San Francisco, 1945), decisively are the main reasons for the creation of the UN. In the same way, these were also the main concerns of both the Inter-American Community and the European Union. Th ere is no doubt that the question of the universality of the Western concept of human rights / fundamental rights 17 is a prior discussion of the issue of their transnationality. Th e transnationalization of fundamental rights is a diff erent process and subsequent to the internationalization of them. In the general theory of fundamental rights of Professor Gregorio Peces-Barba one of the most important of his theses consists of the aforementioned lines of evolution of rights that are reported in the following processes, among which we include in a diff erent writing called the process of formation of the ideal of fundamental rights.18 Briefl y, the evolutionary lines or processes of fundamental rights in Peces-Barba occur in four historical processes: 1. process of positivation: the passage from the philosophical discussion of Rationalist Natural Law to positive law made

Valencia: Tirant lo Blanch, 2004. And an intelligent and mature critic in WALLERSTEIN, I. European universalism: the rhetoric of power. São Paulo: Boitempo, 2007. Likewise, it is impossible not to mention the very interesting and current criticism of Joaquín Herrera Flores – HERRERA FLORES, J. Human rights as cultural products: criticism of abstract humanism. Madrid: Catarata, 2005. 16 Norberto Bobbio calls the Declaration of 1948 the most important document in the history of mankind, one that in the opinion of the Italian philosopher “represents the manifestation of the only evidence through which a system of values can be recognized: and this proof is the general consensus about its validity” (p. 26). Th is is already a classic view that diff erent authors of the general theory of human rights have discussed its validity for some decades. See BOBBIO, N. Present and future of human rights. … In A Era dos Direitos (Th e Age of Rights), Rio de Janeiro: Campus, 1992, p. 25-47. 17 One of the fi rst diffi culties presented by the subject of rights is in terms of its terminology. Various expressions have been used throughout the ages to designate the phenomenon of fundamental rights. For example, currently the term natural right should be considered as a historical term that still means a justifi ed moral claim not written as Law. In our opinion, two are the most correct expressions to use today: human rights and fundamental rights. We endorse our view in the general consensus in the specialized doctrine that the term human rights is used when we refer to those rights enshrined in international declarations and conventions and the term fundamental rights for those rights that appear positive and guaranteed in the legal system of a State. In the same way that the diff erent authors when referring to the history or philosophy of human rights, they use, according to their preferences, the mentioned terms indistinctly. So for the purposes of this work on transnationality the expressions fundamental rights and human rights are synonymous. On the subject and the terminological consensus: PEREZ LUÑO, A. E. Human Rights, Rule of Law and Constitution. 9. ed. Madrid: Tecnos, 2005. p. 31; DEL CARMEN BARRANCO, M. Th e discourse of rights: From the terminological problem to the conceptual debate. Madrid: Dykinson, 1992. p. 20; SARLET, I. W. Efi cácia two direitos fundamentais. Porto Alegre: Livraria do Advogado, 2001. p. 33. 18 Th is would be a diachronic process, at the beginning and at the same time that explains the ideal emergence of two fundamental areas of Modernity, as well as the constant transformation of two months and their adaptation to these studies. See: GARCIA, M. L. Or process of formação do ideal two direitos fundamentais: some outstanding aspects da gênese do conceito. XIV Congresso Nacional do Conpedi, 2005, Fortaleza, CE. Available at: http://www.org/manaus/arquivos/Anais/Marcos%20Leite%20Garcia.pdf.

30 from bourgeois liberal revolutions (main characteristic: positivation the fi rst generation of fundamental rights: rights of freedom); 2. generalization process: means the extension of the recognition and protection of the rights of a class to all members of a community as a consequence of the struggle for real equality (main characteristic: the struggle and the consequent positivation of social rights or second generation and some other freedoms such as that of association and that of assembly and the extension of citizenship with the universalization of suff rage); 3. internationalization process: a commendable attempt to internationalize Human Rights and create systems of international protection of those that are beyond the borders and cover the whole International or regional community depending on the system. Unfortunately, this is a process stagnated by several problems that characterize human rights and diffi cult practical realization (Main characteristic: an attempt to accomplish the universalization of rights by positivizing human rights at the international level).4. specifi cation process: most recent process by which the person in a concrete situation is considered to assign him rights such as the holder of rights as a child, elderly, woman, consumer, etc., or as a target of rights such as a healthy environment or peace (main features: positivize and change the mentality of society towards the so-called rights of solidarity, diff use or third generation).19 Th e internationalization of fundamental rights in human rights is still an incomplete phenomenon and for many a failed process of trying to internationalize the issue. Its main criticism lies in the lack of coercive power above the States and in the lack of homogeneity between countries and their interests, which leads to a lack of democracy in the context of the International Community: which unfortunately leaves prevail the situation of the traditional , primitive and savage law of the strongest that imposes his will. Th is incomplete process lies precisely in a legal framework that lacks a political power that fully guarantees the eff ectiveness of the international ordering of the diff erent systems of human rights protection, although the attempts are valid and very interesting.20 Diffi cult to conceive of Law without force, without coercion. Even so, the existence of an International Human Rights Law is undeniable, as is shown by domestic and international practice and jurisprudence, and as it admits most of the doctrine. Th e existence of international human rights norms cannot be denied, although it is easily contested by the problems pointed out as an absurd and complete neglect with this Order much less considered and obeyed than internal regulations.

3. International businesses International business is the process of commercial purpose in which a particular business activity decides to expand its activities beyond the national state in which it was conceived. It is a movement that accompanies globalization, however the evolution of

19 Among other works of the Spanish professor, see: PECES-BARBA, G. Th e evolution of fundamental rights. In: Course on Fundamental Rights: general theory. Madrid: Carlos III University of Madrid, 1995. p. 146-198. 20 Certainly, the only organization in which the internationalization of human rights has produced more positive results, with a visible supranational authority, has been within the framework of the protection system of the Council of Europe, because they are more homogeneous societies in their political and legal culture.

31 its treatment in scientifi c thinking has developed purely under a functionalist look, with a strong tendency to disregard power issues and the repugnant face of organizations.21 Th is conception is so fi rm that more up-to-date studies propose that the research agenda for the development of knowledge and research consolidation in terms of international business is proposed in some stages, such as reasons for internationalization, selection of destination markets and patterns of operation.22 In other words, the obscure, harmful and costly aspects of transnational spaces in which multinationals are present in the market and in fi nance are neglected as if they were not the right topics to deal with.23 It is evident that the themes of power, control, exploitation, domination and degradation need to be drawn from the point of view of the fact that, in the context of international business, the actions of these multinationals of the market and of fi nance – eminently doing business internationally – must be treated, questioned, criticized and dimensioned. It is a fact that research in international business has neglected, for example, the obscure facts that occur between multinationals and corrupt governments.24 From this, the study on international business has the opportunity to have a discussion beyond the merely operational aspect, but also with the capacity to have an analysis on the impacts of international business strategies, considering the actions of multinational companies and fi nance, also on the premise of the analysis of cultural, social and environmental impact of the communities, both regionally and globally. It is argued that the development of international business must be legitimized in the fi rm contours of Human Rights, including, without fear of pointing out, that the “ethics” of the market in the performance of international business activities is the guarantee of Human Rights. However, it is known that there is a lack of a policy, a guiding agenda. Th is study places the Agenda 2030 as the guiding element of business – and also state – performance in international business, so that they are legitimized towards Human Rights.

4. The agenda 2030 as a model of governance to international business considering transnational areas Th e discussion on sustainability is assuming an important role in the contemporary world and it is notable that all sectors act in the transition to a sustainable society. Sustainability is an inherent quality of all social processes. Th e structures of this quality for international business operations due to the aspects of power are the Human Rights.

21 SPOHR, N.; ALCADIPANI, R. Critical studies in international business: a proposal for dialogue. Internext, Brazil, v. 8, n. 3, p. 1-19, nov. 2013. Available at: http://internext.espm.br/index.php/internext/article/ view/201. 22 DE ALMEIDA BASTOS GOMES, R. M.; CARNEIRO, J.; KOGUT, C. S. Case studies in retail internationalization: a literature review. Internext, Brazil, v. 12, n. 1, p. 16-32, Apr. 2017. Available at: http://internext.espm.br/index.php/internext/article/view/337/296. 23 Th is is believed to be due to a lack of standard agenda for determining social, environmental, cultural and commercial conduct in these spaces. 24 SPOHR, N.; ALCADIPANI, R. Critical studies in international business: a proposal for dialogue. Internext, Brazil, v. 8, n. 3, p. 1-19, nov. 2013. Available at: http://internext.espm.br/index.php/internext/article/ view/201.

32 In this context, the world has specifi c challenges to achieve sustainable development to consolidate international business in the human rights structure, that is the importance of thinking in the whole, that the planet Earth and its ecosystems are our common home, and with global strategies the world can achieve the set goals.25 Th e action for sustainability, then, imposed the need for measures. Of these, one of signifi cant importance was the defi nition of Sustainable Development Objectives. Th is proposal was conceived as an agenda, in this case the UN 2030 agenda (Transforming Our World the 2030 Agenda for Sustainable Development), called Sustainable Development Objectives (SDGs). Th ey are confi gured as a global agenda adopted during the United Nations Summit on Sustainable Development in order to take action to eradicate poverty, food security, health, education, gender equality, among others. It was legitimized by the 193 UN member states and consists of a Declaration, establishing 17 Sustainable Development Objectives, which include 169 more specifi c goals, a section on means of implementation and a renewed global partnership, as well as a mechanism for evaluation and monitoring.26 It is the result of the evolution of the Millennium Development Goals (MDGs), established by the UN in the 2000s. Th e convergence of MDGs with Sustainability was already pointed out by Ferrer27, including, as regards the diffi culties of implementing the MDGs: Sustainability is more related to the Millennium Goals, which are the guide of action of humanity. Th e objective of the environmental is to ensure the conditions that make human life possible on the planet. On the other hand, the other two aspects of sustainability, the social aspects that have to do with inclusion, with avoiding marginality, with the incorporation of new governance models, etcetera, and the economic aspects, which have to do with growth and distribution of wealth. Th ey have to do with dignifying life. Sustainability tells us that it is not enough to ensure subsistence, but that the human condition requires securing some decent conditions of life. Th e implementation of SDGs began on January 1, 2016 and constitutes a worldwide challenge, which seeks to follow the guidelines defi ned by the 17 objectives and their respective goals, whose main activity is poverty and protection of the planet, adopting to sustainable measures supported by the economic, social and environmental dimensions, aiming above all for the common good. It is a global commitment that includes not only the governments of the Member States, but requires a universal approach involving the participation of civil society, private initiative, academia in the most varied areas of

25 UNITED NATIONS DEVELOPMENT PROGRAM – UNDP (Brazil). United Nations – UN (Ed.). Th e Objectives of Sustainable Development. 2017. Available at: http://www.br.undp.org/content/brazil/en/ home/post-2015.html. 26 ONUBR. United Nations Summit on Sustainable Development. New sustainable development agenda: leaving no one behind. [S.l.], [S.d.] a. Available at: https://nacoesunidas.org/pos2015/ cupula/. 27 ONUBR. United Nations Summit on Sustainable Development. New sustainable development agenda: leaving no one behind. [S.l.], [S.d.] a. Available at: https://nacoesunidas.org/pos2015/cupula/.

33 knowledge, the media, other interested groups and of all the people on the planet. Th is plan commits itself not to leave anyone behind. As a strategy for systematizing the SDGs, the 5P’s were defi ned: people, planet, prosperity, partnerships and peace. Th rough the 5Ps, the ODS commit themselves to people – to eradicate poverty and guarantee dignity and equality; the planet – to protect Earth’s natural resources and climate; prosperity – to guarantee prosperous and full lives in harmony with nature; partnerships – implement the agenda through global and sound partnerships and peace – promoting a peaceful, just and inclusive society.28 Th e construction of the ODS under the UN organization represents a unique moment in the history of humanity, because it summons the nations to build a space for discussion and refl ection under the problems that devastate humanity and consolidate a unique agenda, where everyone is invited to participate and all are responsible for the changes in the construction of a better world to live, seeking above all to sediment an egalitarian and just society. Maybe this action is something unheard of in history.. However, care must be taken to ensure that the possible distinct interests that may be on this agenda do not compromise it. Th e individuals involved in this process can conduct it in order to direct the SDGs in order to meet their individual and / or corporate interests, mainly seeking an economic, political, intellectual, cultural, among others benefi ts. Faced with this possibility, the 2030 agenda can further reinforce the precepts of inequality, exclusion and exacerbated competitiveness that do nothing to eradicate poverty and hunger on the planet and that much less contribute to the liberation of humanity. In this sense, the development of institutional guidelines – both legal and organic, with respect to SDGs, would refl ect in governance for the exercise of management, which tends to guarantee the management of subjects to an authority that acts on these actions, this being relationship of power to a dynamic process over time. Th e prominence of SDGs as an agenda to be implemented by 2030 has presented challenges for contemporary management. All sectors are penetrated by environmental or socio-environmental variables, whose implications cannot be avoided without incurring costs for future generations. Among these challenges, the harmonization of the international commercial relationship to ensure the eff ectiveness of human rights, therefore, legal and governance elements need to be investigated and proposed. As for governance models, the challenge is to establish institutions to advance the new paradigm of sustainability through forms of association between diff erent stakeholders and systems at the local, national and global levels. As long as the specifi c structures are adapted and discussed, the proliferation of new forms of participation that complement and challenge the traditional governmental system can be expected. In the new paradigm, the state is immersed in civil society and the nation inserted in the planetary society.29 Still on governance, there will be an adaptation of paradigms to the aims of institutions at a global level. Sovereignty will provide space for cooperative, coordinated and agreed

28 BRASIL. Ministry of Foreign Aff airs of Brazil. United Nations (UN) (Comp.). Transforming Our World: Th e 2030 Agenda for Sustainable Development. Brasília: CGDES, 2016. 42 p. Available at: http://www. br.undp.org/content/dam/brazil/docs/agenda2030/undp-br-Agenda2030-completo-pt-br-2016.pdf. 29 GLOBAL SCENARIO GROUP; WILDEBEEST. ECLAC; Stockholm Environment Institute. Th e great transition: Th e promise and the attraction of the future. Santiago de Chile: Cepal, 2006.

34 political management, given the sustainability challenges beyond national action, whether the state is rich or poor. Soon the implementation of international business cannot omitted this world-directed view. Also, with regard to the primacy for global governance that would impact on international business, according to Giménez-Candela 30 there is an understanding that it is necessary to adapt the legal system to global challenges, and there is a need for a common framework of concepts in the context of a new legal language, seeking a consensus on the basis of a new intellectual unit. Th us, she quotes: to understand the necessary adaptation of our legal systems to the challenges of globalisation, legal history could help us by contributing a common framework of concepts, a common juridical language, a consensus in te basis of a new intellectual unity (Giménez-Candela, 2011, p. 32). Sustainability works on its thematic object in a transversal way to other social policies, assuming new dimensions for the formulation of local and regional development programs, plans and projects. Within this perspective – and considering the socio- environmental specifi cities of international business – the eff ectiveness of social policies for the guarantee of Human Rights presupposes generation of employment and income (combating social exclusion), fair distribution of the conditions of appropriation of urban and rural spaces (territorial inclusion) along with the effi ciency of production infrastructure (combating the waste of natural and human resources), and protecting the integrity of ecosystems, as well as the quality of life of populations, especially the most vulnerable. Sustainability encompasses not only the relationship between economic and environmental but also the human balance in relation to other issues.31 In this conception the adequacy of international business posture is implicit, in which cultural, legal, political, economic and physical-spatial variables must be respected and guaranteed. To this end, international business will have to align the premise of transnational collaboration and solidarity with a view to global sustainability on the premise of guaranteeing Human Rights. Th is is because the intensifi cation of the phenomenon of globalization poses important challenges to the states and demands a qualitative and strategic re-adaptation of the law, since it presents itself as an instrument of state social control. Emanated from a sovereignly isolated entity on the planet, it no longer produces more eff ective responses to ensure a future with progressive sustainability for the whole community of life and on a global scale. We need to build and consolidate a new conception of transnational sustainability, as a paradigm of approximation between peoples and cultures, and the citizen’s participation in a conscious and refl exive way in political, economic and social management.32

30 GIMÉNEZ-CANDELA, T. Global Legal Th eory: Drawing the Line. MOZETIC, V. A.; RESINA, J. S. (Orgs.). Refl ections and dimensions of law: international cooperation between Brazil and Spain. Curitiba: Multideia, 2011. 31 FERRER, G. R. Quality of life, environment, sustainability and citizenship. Do we build the future together? Revista NEJ – Eletrônica, Vol. 17 – n. 3-p. 319 / set-dec 2012 321. Available at: http://www. univali.br/periodicos. 32 CRUZ, P. M.; REAL FERRER, G. Law, Sustainability and the Technological Premise as Expansion of

35 In this way, the governance of human rights in transnational spaces, conditioned by the pressures of global society or touched by the pressures of global capitalism, gain with the SDGs an agenda to constitute and formulate policies in any scope, be they macro- structural, environmental or social. Th e new global era entails changes in which the Earth as a system will impose its geological domain, considering a scale from the present to the future generations. Still, the times ahead consolidate a world population of 9 billion people (by 2050), with a “world society” with egalitarian vulnerabilities in a society that will need to create wealth in a context of technological life and innovation.33

5. Conclusion International business is one of those phenomena with a strong tendency to progress – that is, more businesses – but it is a fact that for them to be sustainable there will be a need for a critical arrangement. Its development, considering a transnational space, must occur in the guarantee of Human Rights. Th is dependence on international aff airs for the guarantee of Human Rights achieves in the 2030 agenda a strategic platform so that it can then be accomplished. It is assumed that international business must be developed in a transnational space so that the International Community can deal with issues as urgent to the human being as peace between nations, global consumer protection, international trade, the environment for current and future generations, internationally organized crime and other brand-new issues related to new technologies such as biotechnology evolution of medicine and world cyberspace. Human Rights are also necessary demands for international aff airs, when we see that issues such as peace, the environment, consumption, protection of children and adolescents, the elderly, etc., are weaker than the economic interests of large corporations and central states. When the economic interests of the most powerful are at stake, we know that the will of those always prevails. As the vulnerable subject of the absolute state, as the unprotected worker in the liberal state of law of the nineteenth century, the present citizen needs to see their demands strengthened, with Agenda 2030 being a strategic platform for such demands. Moreover, the evident crisis of democracy, the lack of eff ectiveness of the juridical phenomenon in the global scope and the lack of vigor of the national state to deal with common human beings, leads us to think of new possibilities to regulate and renew citizenship issues. Th e European Union is certainly the example of transnationalization that has overcome the purely economic issue and with respect to the decision of majorities and a sublime invocation, consideration and respect for fundamental rights has changed the direction of future transnational alliances.

its Fundamentals. Sequence: Juridical and Political Studies. Florianópolis, v. 36, n. 71, p. 239, ten. 2015. Available at: https://periodicos.ufsc.br/index.php/sequencia/article/view/2177-7055.2015v36n71p239d. 33 MESSNER, D. Th ree waves of global change – Th e dynamics of global governance in the fi rst half of the 21st century, Th omas Fues/LIU Youfa (eds.). Global governance and building a harmonious world: a comparison of European and Chinese concepts for international aff airs. Bonn: Deutsches Institut für Entwicklungspolitik/German Development Institute, Studies 62, p. 9-38.

36 3 Indirect Obligations of Business Entities under Article 8 of the European Convention on Human Rights

Alla Tymofeyeva 1 Th e Court has no jurisdiction to consider applications directed against private individuals or businesses.2

1. Introductory remarks on the indirect obligations of businesses within the Council of Europe Th e concept of obligations of businesses to respect human rights is closely related to the work of the UN Special Representative John Ruggie titled the UN Guiding Principles on Business and Human Rights (UNGP) endorsed by the Human Rights Council in its resolution 17/4 of 16 June 2011.3 Principle 11 of the UNGP set forth that “Business enterprises should respect human rights…”, which means that businesses should avoid infringing on the human rights of others and take adequate measures for the prevention, mitigation, and even remediation of such violations. When discussing obligations of a specifi c subject, one must distinguish between direct and indirect obligations.4 A direct obligation signifi es a duty directly imposed on a person or entity by law and an indirect obligation is implied, derived from the objective and purpose of a statute. Regarding human rights obligations of business entities under the European Convention on Human Rights (the Convention), we may say that the direct obligations are those that are imposed on the forty-seven High Contracting Parties on the basis of this human rights instrument. Th e indirect obligations should be seen as the duties set forth by the states on a domestic level with the aim to regulate the conduct of businesses in order to comply with the norms of this international treaty. In other words, the Convention may regulate corporate conduct indirectly by requiring states to enact and enforce legislation applicable to business entities, which refl ects the human rights norms of this treaty. Th is is the so-called horizontal application of the Convention,5

1 I would like to express my profound gratitude to Donald Adams for assistance in the preparation of this contribution. 2 ECtHR, Bogomolova v. Russia, Appl. No. 13812/09, Judgment, 20 June 2017, § 38. 3 HRC, Human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/ RES/17/4. 4 KARAVIAS, M.: Corporate Obligations under International Law. Oxford: Oxford University Press, 2013, p. 60. 5 KUČERA, M.: Responsibility of the State under the Convention in connection with actions of Non-State actors and applicability of the Convention in business. In: Šturma, P., (ed.) Stát vs. nestátní aktéři. (State vs. non-state actors) Praha: Česká společnost pro mezinárodní právo, 2012, p. 162.

37 when it infl uences the conduct of private persons indirectly, through positive obligations imposed upon the states.6 It takes its roots in Article 1 of the Convention requiring the states to secure to everyone within their jurisdiction the rights and freedoms guaranteed in the Convention by prevention of unlawful acts of private entities that breach them. Th is provision of the Convention has existed in its text since its creation in 1950, but this interpretation was established much later. Th e detailed work on the legal framework for business and human rights within the Council of Europe (CoE) received its initial motion from the United Nations. After the unsuccessful Draft Norms on Transnational Corporations and Other Business Enterprises,7 which sought to directly impose essentially the same human rights duties that states have accepted on companies. In 2005 the UN Secretary-General appointed John Ruggie to the post of a Special Representative on the issue of business and human rights.8 Th e Special Representative looked for support within regional human rights organisations, including the Council of Europe, which resulted in the initiatives on the subject also in Europe. Th e CoE’s activity on business and human rights began in 2009.9 At that time the Parliamentary Assembly (PACE) adopted Recommendation 1858 (2009) Private military and security fi rms and erosion of the state monopoly on the use of force, which was concerned about the need for regulation of private military and/or security companies (PMSCs). It requested an introduction of rules and regulations with the expectation of it a code of conduct for businesses that wish to contract with PMSCs. Th is Recommendation stressed the need to set up a framework for self-regulation in the PMSC sector including the establishment of a PMSC Ombudsman and/or a PMSC violations investigation team. With regards to the possible nature of such an instrument, the PACE stated its preference for a legally binding document. On 6 October 2010, the CoE Parliamentary Assembly adopted Resolution 1757 10 and Recommendation 1936 11 on human rights and business. In these documents, the assembly recommended that the CoE Committee of Ministers explore ways and means of enhancing the role of businesses in respecting and promoting human rights. In its opinion, the Committee of Ministers should specifi cally consider “…preparing a study on corporate responsibilities in the area of human rights, taking into account in particular the case law of the European Court of Human Rights…”.12 As a result of this study, in 2012 the Steering Committee for Human Rights (CDDH) published the “Draft

6 HARRIS, D., O’BOYLE, M. and WARBRICK, C. Law of the European Convention on Human Rights. Oxford: Oxford University Press, 2009, p. 20. 7 Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/12 (2003). 8 Just Business: Why Companies Must Pay Attention to Human Rights. Keynote Address by SRSG John Ruggie Canadian Business for Social Responsibility, Toronto, 5 November 2009. 9 AUGENSTEIN, Daniel and GENUGTEN, Willem van and JAGERS, Nicola, Business and Human Rights Law in the Council of Europe: Noblesse Oblige (25 September 2014). Available at SSRN: https:// ssrn.com/abstract=2501310 (accessed on 7 April 2018). 10 Human rights and business. Resolution 1757 (2010), CoE, PACE, 6 October 2010. 11 Human rights and business. Recommendation 1936 (2010), CoE, PACE, 6 October 2010. 12 Ibid.

38 preliminary study on corporate social responsibility in the fi eld of human rights: existing standards and outstanding issues”13 and the “Draft feasibility study on corporate social responsibility in the fi eld of human rights”.14 In the fi rst report the CDDH specifi cally discussed the relevant instruments of the Council of Europe. Th e most important of these instruments was the Convention itself, together with its interpretation by means of the Court’s case-law. Apart from this international treaty, the Steering Committee cited the European Social Charter 15 with respect to workers’ rights, the Convention on Human Rights and Biomedicine 16 in relation to potential illegal activities of pharmaceutical companies, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 17 regarding employees’ data protection, and a number of documents of the CoE Parliamentary Assembly and the Committee of Ministers.18 Th e second document, the “Draft feasibility study on corporate social responsibility in the fi eld of human rights” stressed the importance of the UN Guiding Principles as a global standard and raised the issue of possible gaps relating to the remedies of corporate social responsibility. It was concluded that the Council of Europe should adopt further standards on access to justice for victims of corporate human rights abuses with a focus on thematic issues such as child labour, internet governance or social rights, and to adopt a guide of best practices in the fi eld of corporate social responsibility and human rights, in co-operation with the private sector and civil society.19 Following these drafts, the Committee of Ministers requested that the CDDH elaborate on the declaration supporting the UNGP as well as a non-binding instrument, which would include a guide of good practices addressing gaps in the implementation of the UNGP at the European level by the end of 2015. In that context, the Drafting Group on Human Rights and Business (CDDH-CORP) was set up. Th e CDDH- CORP expanded the Declaration of the Committee of Ministers supporting the UN Guiding Principles, which was approved by the CDDH at its 79th meeting

13 Steering Committee for Human Rights (CDDH), Draft Preliminary Study on Corporate Social Responsibility in the Field of Human Rights: Existing Standards and Outstanding Issues, CDDH(2012)012, Strasbourg, 4 June 2012. 14 Steering Committee for Human Rights (CDDH), Draft Feasibility Study on Corporate Social Responsibility in the Field of Human Rights, CDDH(2012) 017, Strasbourg, 16 November 2012. 15 European Social Charter, 18 October 1961, Turin, ETS. No. 35 and Revised European Social Charter, 3 May 1996, Strasbourg, ETS. No. 163. 16 Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo, 4 April 1997, ETS. No. 164. 17 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Strasbourg, 28 January 1981, ETS No. 108. 18 See e.g. Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines, 4 April 2012; Recommendation CM/ Rec(2012)4 of the Committee of Ministers to member States on the protection of human rights with regard to social networking services, 4 April 2012; Human rights and business. Recommendation 1936 (2010), CoE, PACE, 6 October 2010. 19 CDDH, Draft Feasibility Study on Corporate Social Responsibility in the Field of Human Rights, CDDH(2012) 017, Strasbourg, 16 November 2012, 20-21.

39 in November 2013 20 and subsequently adopted by the Committee of Ministers in April 2014.21 On 12 November 2015, the CDDH-CORP presented its 6th meeting report,22 informing that it had fi nalised the second reading of the draft recommendation relating to non-binding instruments on human rights and business. On the basis of this, in March 2016 the Committee of Ministers adopted Recommendation CM/Rec (2016)3 on Human Rights and Business.23 On 9 June 2017, the Steering Committee for Human Rights held a seminar on the work conducted in 2014–2015 regarding corporate social responsibility in the fi eld of human rights.24 Th is is the current situation regarding the debate on business and human rights in the “legislative” and “executive” bodies of the Council of Europe. Th e practice of the European Court of Human Rights (the Court) is more compelling and requires supplementary discussion. Th is CoE body has dealt with the corporate human rights abuses in the hundreds of cases when the applicants alleged a breach of Articles 2, 3, 4, 5, 8, 9, 10, 11, and 14 of the Convention.25 Th e present study will focus specifi cally on the case-law of the Court with respect to Article 8 of the Convention keeping in mind the possible involvement of businesses. It is of interest to note that apart from general Article 1 of the Convention, Article 8 is the only provision of the Convention, which contains in its title the obligation “to respect” human rights precisely as in the Pillar II of the UNGP. Preliminary analysis of the Court’s case-law demonstrates that there exist three main areas which comprise the activities of private business subjects resulting in possible violation of the right to respect for private and family life. Th ey may be summarised as follows: 1) protection of the environment; 2) defamation proceedings; and 3) employment disputes. Th e next section of this paper deals with examples relating to each of them and will include corresponding comments and explanations.

20 Steering Committee for Human Rights (CDDH), Report, 79th meeting, 26-29 November 2013, CDDH(2013)R79, Strasbourg, 6 December 2013. 21 Declaration of the Committee of Ministers on the UN Guiding Principles on business and human rights, Adopted by the Committee of Ministers on 16 April 2014 at the 1197th meeting of the Ministers’ Deputies. 22 Steering Committee for Human Rights (CDDH), Drafting Group On Human Rights And Business (CDDH-CORP), Meeting report, 6th meeting, 2-4 November 2015, CDDH-CORP(2015)R6, Strasbourg, 12 November 2015. 23 Recommendation CM/Rec(2016)3 of the Committee of Ministers to member States on human rights and business, Adopted by the Committee of Ministers on 2 March 2016 at the 1249th meeting of the Ministers’ Deputies. 24 High-Level Seminar on Human Rights and Business “Promoting the eff ective implementation of global and regional instruments”, Strasbourg, 9 June 2017, available at: https://www.coe.int/en/web/human-rights- intergovernmental-cooperation/-/high-level-seminar-on-human-rights-and-business (accessed 2 April 2018). 25 TYMOFEYEVA, Alla, Indirect Obligations of Business Entities under the European Convention on Human Rights, Czech Yearbook of Public and Private International Law, 8 (2017), 291-305.

40 2. Possible obligations of business entities under Article 8 of the Convention

2.1 Protection of the environment Although the text of the Convention does not enshrine a right to a healthy environment as such, the Court in its case-law addressed environmental matters on account of the fact that the exercise of certain rights may be undermined by the existence of environmental risks. Th e Court has dealt with these allegations mostly under Article 2,26 Article 3,27 and Article 8 28 of the Convention. As previously stated, we will discuss only the case-law regarding activities of businesses that may result in the abuse of the right to private life. One of the oldest judgments on the subject-matter was rendered in the case of Powell and Rayner v. the United Kingdom of 1990. Here the applicants, who lived in the vicinity of Heathrow airport, complained about the unacceptable air traffi c and aircraft noise. Th is noise was caused partly by the activity of private airlines. At that time the Court and the former European Commission on Human Rights observed that the increasing use of jet aircraft have become necessary in the interests of a country’s economic well- being. Th e Court concluded that there is no serious grounds for maintaining that the policy adopted by the United Kingdom authorities gives rise to violation of Article 8 of the Convention, whether under its positive or negative head.29 Eleven years later, the Court chamber made an attempt to change such approach to aircraft noise pollution. Th e applicants in the case of Hatton and Others v. the United Kingdom alleged a violation of Article 8 by virtue of the increase in the level of noise caused at their homes by using Heathrow airport at night after the introduction of the 1993 scheme. Th e Court seated in the Chamber concluded that the 1993 scheme failed to strike a fair balance between the United Kingdom’s economic well-being and the applicants’ eff ective enjoyment of their right to respect for their homes as well as their private and family lives. Accordingly, it found a violation of Article 8 of the Convention.30 However, the case was referred to the Grand Chamber, which in 2003 rejected the Chamber’s ruling and decided that there had been no violation of Article8 of the Convention.31 It found, in particular, that the United Kingdom had not overstepped their margin of appreciation as there was an economic interest in maintaining a full service of night fl ights. Th e Court noted that only a small percentage of people had suff ered from the noise, that the housing prices had not dropped, and that the applicants could move elsewhere without a fi nancial loss. Th e Court confi rmed this approach in 2012 when it ruled that France did not infringe on the rights of the

26 ECtHR, Öneryıldız v. Turkey, Appl. No. 48939/99, Judgment, 30 November 2004, § 118. 27 ECtHR, Elefteriadis v. Romania, Appl. No. 38427/05, Judgment, 25 January 2011, § 55. 28 ECtHR, Tătar v. Romania, Appl. No. 67021/01, Judgment, 27 January 2009, § 125. 29 ECtHR, Powell and Rayner v. the United Kingdom, Appl. No. 9310/81, Judgment, 21 February 1990, § 45. 30 ECtHR, Hatton and Others v. the United Kingdom, Appl. No. 36022/97, Judgment, 2 October 2001, § 107. 31 ECtHR, Hatton and Others v. the United Kingdom, Appl. No. 36022/97, Judgment, 8 July 2003, § 130.

41 applicants, under Article 8 of the Convention, aff ected by the noise from the Deauville Airport’s runway in the case of Flamenbaum and Others v. France.32 An opposing viewwas shown with the situation in regards to the noise resulting from activities carried out by certain business establishments (bars, clubs) in Valencia. Th e Court in its judgment in the case of Cuenca Zarzoso v. Spain in 2018 ruled that the respondent state had failed to discharge its positive obligation to guarantee the applicant’s right to respect for his home and his private life in breach of Article 8 of the Convention.33 It was observed that the applicant submitted a number of requests to the city council to have the business licences withdrawn from the establishments that were producing the high level of noise. Notwithstanding these numerous requests, the Valencia City Council did not react properly, and the level of noise pollution remained unbearable. A similar conclusion with regard to a violation of Article 8 was reached by the Court in the case of Moreno Gómez v. Spain.34 In the case of Mileva and Others v. Bulgaria the noise was caused by the running of a computer club in the building in which the applicants lived. Here the Court held again that there had been a breach of Article 8 of the Convention, fi nding that Bulgaria, despite receiving many complaints and being aware that the club was operating without the necessary license, had failed to take action to protect the well-being of the applicants in their homes.35 When an activity of a business entity causing noise pollution is not regular, as for example it being fi rework displays that take place twice a year, the Court is more tolerant to it. In the case of Zammit Maempel v. Malta it concluded that there had been no violation of Article 8 of the Convention 36 as the noise levels from fi reworks were not excessive, and that there had not been a real and immediate risk to the applicants’ personal integrity. In situations where the national authorities and business entities take steps to prevent or reduce the harmful eff ect of noise, the Court will not fi nd a state responsible for the breach of the right to respect for private and family life. In the case of Chiş v. Romania the applicant complained about a breach of his rights under Article 8 of the Convention following the opening of a number of bars in his building. Th e Court declared the application inadmissible 37 and observed that the technical measurements of the noise level had been carried out by the competent municipal department and by a private laboratory. According to the results obtained, the noise level did not signifi cantly aff ect the quality of life of the building’s inhabitants. Moreover, the Court fi nds no violation of the Convention when the applicants themselves breach provisions of national legislation. In the case of Martinez Martinez

32 ECtHR, Flamenbaum and Others v. France, Appl. Nos. 3675/04 and 23264/04, Judgment, 13 December 2012, § 161. 33 ECtHR, Cuenca Zarzoso v. Spain, Appl. No. 23383/12, Judgment, 16 January 2018, § 54. 34 ECtHR, Moreno Gómez v. Spain, Appl. No. 4143/02, Judgment, 16 November 2004, § 62. 35 ECtHR, Mileva and Others v. Bulgaria, Appl. Nos. 43449/02 and 21475/04, Judgment, 25 November 2010, § 101. 36 ECtHR, Zammit Maempel v. Malta, Appl. No. 24202/10, Judgment, 22 November 2011, § 74. 37 ECtHR, Chiş v. Romania, Appl. No. 55396/07, Decision, 9 September 2014, § 39.

42 and María Pino Manzano v. Spain the Court observed that the applicants were living in an industrial zone where residential buildings were prohibited.38 It added that the domestic courts had carefully considered their complaints. Furthermore, an expert report had found that the noise and pollution levels were tolerable. Th erefore, there had been no violation of Article 8 of the Convention. Similarly, in the case of Frankowski and Others v. Poland, concerning road traffi c noise, the Court dismissed the application in view of the fact that the national authorities took the necessary measures to protect the applicants’ right to private and family life.39 In the case of Deés v. Hungary, the applicant complained that because of the noise, pollution, and smell caused by the heavy traffi c in his street, his home had become almost uninhabitable. In particular, the volume of cross-town traffi c had increased since a toll had been introduced on the neighbouring privately owned motorway. Th e Court considered that the measures taken by the authorities had proved insuffi cient, so exposing the applicant to an excessive noise disturbance. According to expert measurements, it exceeded the statutory level by between 12% and 15%. Th erefore, the Court held that there had been a breach of Article 8 of the Convention.40 Likewise, the Court found a violation of Article 8 in the case of Grimkovskaya v. Ukraine,41 where the applicant complained about the re-routing of a motorway via her street. Th e Court stressed that the Ukrainian Government had not carried out an environmental feasibility study before turning the street in question into a motorway, nor had they made suffi cient eff orts to mitigate the motorway’s harmful eff ects. In order to be successful before the Court in claims regarding harmful activities of businesses, applicants have to provide medical certifi cates, proving that their health has been adversely aff ected by such activities, and relevant expert reports.42 Th e applicants in the case of Fägerskiöld v. Sweden alleged that the noise from the wind turbine and the light refl ections from its rotor blades interfered with their private and family life. Th e Court declared the application inadmissible given the fact that it had not receive any medical certifi cates to substantiate that the applicants’ health had been adversely aff ected by the noise or light refl ections.43 Currently, an application in the case of Vecbaštika and Others v. Latvia is pending before the Court,44 in which the applicants complain about the construction of wind energy farms near their homes. Such energy farms may also be operated by private parties. Th e practice will show whether the ruling in this case will lead to any indirect obligations of business entities. Extreme noise disturbance caused by trains was the subject of the Court’s examination in the case of Bor v. Hungary. Th e Court ruled that there had been an infringement of

38 ECtHR, Martinez Martinez and María Pino Manzano v. Spain, Appl. No. 61654/08, Judgment, 3 July 2012, § 48. 39 ECtHR, Frankowski and Others v. Poland, Appl. No. 25002/09, Decision, 20 September 2011. 40 ECtHR, Deés v. Hungary, Appl. No. 2345/06, Judgment, 9 November 2010, § 24. 41 ECtHR, Grimkovskaya v. Ukraine, Appl. No. 38182/03, Judgment, 21 July 2011, § 73. 42 ECtHR, Borysiewicz v. Poland, Appl. No. 37664/04, Judgment, 1 July 2008, § 54 and ECtHR, Leon and Agnieszka Kania v. Poland, Appl. No. 12605/03, Judgment, 21 July 2009, § 102. 43 ECtHR, Fägerskiöld v. Sweden, Appl. No. 37664/04, Decision, 26 February 2008. 44 ECtHR, Vecbaštika and Others v. Latvia, Appl. No. 52499/11.

43 Article 8 of the Convention fi nding that Hungary had failed to discharge its positive obligation to guarantee the applicant’s rights.45 It emphasised that the existence of a sanction system is not enough, if it is not applied in a timely and eff ective manner. In particular, Hungarian courts had failed to determine any enforceable measures in order to assure that the applicant would not suff er any disproportionate individual burden for more than fi fteen years. Victims of environmental pollution are primarily natural persons, and the provisions of Article 8 in this respect can hardly relate to legal persons. In the case of Greenpeace e.V. and Others v. Germany, the application was lodged by the association Greenpeace e.V. and four other applicants.46 Th e applicant association had its business premises close to busy roads and intersections in Hamburg and complained about the German authorities’ refusal to take specifi c measures relating to emissions from diesel vehicles. Th e Court observed that it was not persuaded that the applicant Greenpeace e.V., in the specifi c circumstances of the case, can claim to be a victim of a violation of Article 8 of the Convention. Given that the applicants referred to a violation regarding protection of health, an association is in principle not in a position to rely on health considerations to allege a violation of Article 8. In the end, the Court declared the application inadmissible as being manifestly ill-founded. In particular, it stressed that the choice of means as to how to deal with environmental issues fell within the state’s margin of appreciation. Th e applicants had failed to show that in refusing to take the specifi c measures they had requested, Germany had exceeded its discretionary power by failing to strike a fair balance between the interests of the individuals and that of the community as a whole. In the case of Di Sarno and Others v. Italy, a waste treatment and disposal service was entrusted to private companies.47 Th e Court reiterated that the fact that the Italian authorities had handed over the management of a public service to third parties does not relieve them of the duty of care incumbent on them under Article 8 of the Convention. It found a breach of this provision, noting that the state had been under a duty to adopt reasonable and appropriate measures capable of safeguarding the right of those concerned to a healthy and protected environment. Another case (Locascia and Others v. Italy) against Italy regarding a complaint about the danger to health caused by operation of a private waste disposal plant is currently under an examination of the Court and has not been decided yet.48 Th e decision to construct a cemetery near the applicant’s house, which led to the contamination of his water supply, resulted in the fi nding of a violation of Article 8 of the Convention in the case of Dzemyuk v. Ukraine.49 Although the land where the cemetery was built belonged to a state-owned company called Vorokhtya Lisokombinat, it is clear that such property may also be owned by business entities. In this case the Court observed that it was not disputed that the cemetery had been constructed and used in breach of the domestic regulations. Th e conclusions of the Ukrainian environmental

45 ECtHR, Bor v. Hungary, Appl. No. 50474/08, Judgment, 18 June 2013, § 28. 46 ECtHR, Greenpeace e.V. and Others v. Germany, Appl. No. 18215/06, Decision, 12 May 2009. 47 ECtHR, Di Sarno and Others v. Italy, Appl. No. 30765/08, Judgment, 10 January 2012, § 110. 48 ECtHR, Locascia and Others v. Italy, Appl. No. 35648/10. 49 ECtHR, Dzemyuk v. Ukraine, Appl. No. 42488/02, Judgment, 4 September 2014, § 92.

44 authorities had been disregarded, and the binding judicial decisions which ordered the closing of the cemetery had never been enforced by the state. Th erefore, the health and environment dangers inherent in water pollution had not been acted upon properly. Environmental risks may be combined with the lack of access to information regarding such risks. In the famous case of Guerra and Others v. Italy the Court dealt with the relevant authorities’ failure to inform the public about the hazards relating to the activity of a chemical factory producing fertilisers.50 By fi nding a breach of Article 8 of the Convention the Court noted the fact that the applicants had not received timely and essential information that would have enabled them to assess the risks they were exposed to in the event of an accident at the factory. Th e applicants, in the case of McGinley et Egan v. United Kingdom, were soldiers who were present on an island during atmospheric tests of nuclear weapons. Th ey complained about the inability to receive documents confi rming their health problems related to exposure to radiation. Th e Court refused their claims observing that the United Kingdom had provided a procedure that enabled the applicants to request documents and that there was no evidence to suggest that this procedure would not have been eff ective.51 Th e opposite was the conclusion of the Court in the case of Roche v. the United Kingdom in 2005.52 Here, Mr Th omas Michael Roche’s health problems were the result of his participation in gas tests conducted under the auspices of the British Armed Forces. It was confi rmed that the applicant had not had access to all relevant and appropriate information that would have allowed him to assess risks to his health. Th e state was held responsible for a breach of its obligations to assess risks and consequences of hazardous industrial processes on a private mining company in the case of Tătar v. Romania.53 Environmental issues under Article 8 of the Convention were addressed by the Court also in the cases Brincat and Others v. Malta,54 Lopez Ostra v. Spain,55 Taşkın and Others v. Turkey 56 and others.57 It should be stressed again that in all of the above-mentioned cases the responsible subject was a state. Nevertheless, the pollution was often caused by activities of business entities. Given the debate in the CoE on business and human rights, we may expect that private companies should consider their activities and understand the need to conduct their business in compliance with the Convention standards. Th e next part of the paper will cover the possible involvement of businesses in defamation proceedings where the rights enshrined in Article 8 of the Convention were subject to debate.

50 ECtHR, Guerra and Others v. Italy, Appl. No. 14967/89, Judgment, 19 February 1998. 51 ECtHR, McGinley et Egan v. UK, Appl. Nos. 21825/93 and 23414/94, Judgment, 9 June 1998, § 102. 52 ECtHR, Roche v. the UK, Appl. No. 32555/96, Judgment, 19 October 2005, § 169. 53 ECtHR, Tătar v. Romania, Appl. No. 67021/01, Judgment, 27 January 2009, § 125. 54 ECtHR, Brincat and Others v. Malta, Appl. Nos. 60908/11, 62110/11, 62129/11, 62312/11, and 62338/11, Judgment, 24 July 2014. 55 ECtHR, Lopez Ostra v. Spain, Appl. No. 16798/90, Judgment, 9 December 1994. 56 ECtHR, Taşkın and Others v. Turkey, Appl. No. 46117/99, Judgment, 10 November 2004. 57 E. g. ECtHR, Fadeyeva v. Russia, Appl. No. 55723/00 , Judgment, 9 June 2005.

45 2.2 Defamation proceedings In this section, we will provide examples of cases relating to defamation proceedings where a state did not properly balance the rights of individuals and private media companies. Th e cases at issue were often the subject of examination under Article 8 and Article 10 of the Convention.58 In this paper, we will describe only submissions where the applicant alleged a violation of Article 8 of the Convention. Probably, the most famous in this regard is the series of judgments concerning Princess Caroline von Hannover and her family. For the fi rst time, in the case of von Hannover v. Germany in 2004, the Court found a breach of Article 8 of the Convention59 due to the lack of fair balance between the interests at stake. Th e Court noted that everyone, including people known to the public, may have a legitimate expectation that their private life would be respected. Th is respect is expected especially from private companies involved in the media business. In its further judgments relating to Princess Caroline,60 the Court observed that the photographs of the applicants had contributed to a debate of general interest. Th erefore, it ruled that there had been no violation of Article 8 of the Convention. Th e fact that the domestic courts had undertaken a detailed analysis of the Court’s case-law and had carefully balanced the right of private publishing companies to freedom of expression against the right of the applicants to respect for their private life contributed to these conclusions. Th e Court distinguishes between the status of public fi gures and private persons. Th e latter deserve more protection. In the case of Gurgenidze v. Georgia the applicant, a former university lecturer, complained that the information and his photograph, which were published in the newspaper Akhali Th aoba, had violated his right to respect for his private life. A series of interviews and articles in question accused him of stealing a manuscript of the writer Konstantiné Gamsakhourdia. Th e Court held that the Georgian courts failed to adequately protect the applicant’s rights under Article 8 of the Convention.61 Similarly, the Court found a breach of this provision in the case of Reklos and Davourlis v. Greece62 related to a situation which took place in a private clinic. A professional photographer based in the clinic took a number of photographs of a new- born baby without the parents’ prior consent and refused to hand over the negatives of these photographs. Th e Court observed that the circumstance that the photographer had kept them without obtaining the applicants’ consent and had a possibility of subsequent use against the wishes of the child and/or his parents led it to the conclusion that the right to private life in this case was not suffi ciently protected. From the facts of the case it is unclear whether the photographer was an employee of the clinic or not. However, it is certain that the clinic not only allowed him to enter the sterile unit with

58 Th e Court has dealt with the complaints under Article 10 for example in the following cases: ECtHR, Hachette Filipacchi Associés v. France, Appl. No. 71111/01, Judgment, 14 June 2007, and ECtHR, Mgn Limited v. the United Kingdom, Appl. No. 39401/04, Judgment, 18 January 2011. 59 ECtHR, Von Hannover v. Germany, Appl. No. 59320/00, Judgment, 24 June 2004, § 80. 60 ECtHR, Von Hannover v. Germany (no. 2), Appl. Nos. 40660/08 and 60641/08, Judgment, 7 February 2012 and ECtHR, Von Hannover v. Germany (no. 3), Appl. No. 8772/10, Judgment, 19 September 2013. 61 ECtHR, Gurgenidze v. Georgia, Appl. No. 71678/01, Judgment, 17 October 2006, § 64. 62 ECtHR, Reklos and Davourlis v. Greece, Appl. No. 1234/05, Judgment, 15 January 2009, § 43.

46 new-born babies, but also informed its clients about photography services. Th is case demonstrates that business entities may be required not only to respect human rights themselves, but also to ensure that the persons related to them act in compliance with the Convention too. A photograph of the applicant’s son had been published on the cover page of a booklet informing the public about the eff orts to protect orphans and to assist families looking for adoption in the case of Bogomolova v. Russia.63 Th e use of a minor’s image took place without parental authorisation and the Court held that there had been a violation of Article 8 of the Convention. Th e booklet was published not by a business entity, but by a non-governmental organisation, the Centre for Psychological, Medical and Social Support. Nevertheless, if the similar situation would occur with the involvement of a business corporation, the result of the Court’s examination of the case might be the same. Th e right to protection of reputation is a specifi c right which is protected by Article 8 of the Convention as part of the right to respect for private life.64 Th is right also applies to publications concerning the reputation of a deceased member of a person’s family. In the case of Dzhugashvili v. Russia 65 the applicant, the grandson of the former Soviet leader, Joseph Stalin, sued the newspaper (Novaya Gazeta) for defamation of his grandfather. Th e Court declared the application inadmissible as being manifestly ill-founded, observing that the articles concerned an event of signifi cant historical importance. It also found that the Russian courts took into account the Court’s case-law and had carefully balanced the competing interests. Th e case of Putistin v. Ukraine concerned an article written about the legendary “Death Match” between Ukrainian footballers and members of the German Luftwaff e in 1942. Th e applicant alleged that the article published in the newspaper Komsomolska Pravda discredited his father, who had played in the game, as it suggested that he had been a collaborator. Th e Court ruled that there had been no violation of Article 8 fi nding that the Ukrainian courts had struck a fair balance between the applicant’s right to respect for his private life and the right of the newspaper to freedom of expression. Th e Court noted that the publication did not mention the applicant’s father’s name at all and did not directly make the allegation that his father had been a collaborator.66 When dealing with defamation proceedings, domestic courts should attach importance to the right to the presumption of innocence. Moreover, they should closely examine whether the media has acted in good faith and has provided reliable and precise information in accordance with the ethics of journalism. In the case of Ageyevy v. Russia the applicants complained that the Russian courts had failed to protect the mother’s reputation in defamation proceedings in respect to media reports describing her alleged ill-treatment of her son.67 Th e Court noted that the media had failed to take the necessary steps to report the incident in an objective and rigorous manner, trying

63 ECtHR, Bogomolova v. Russia, Appl. No. 13812/09, Judgment, 20 June 2017, § 8. 64 ECtHR, Axel Springer AG v. Germany, Appl. No. 39954/08, Judgment, 7 February 2012, § 83. 65 ECtHR, Dzhugashvili v. Russia, Appl. No. 41123/10, Decision, 9 December 2014. 66 ECtHR, Putistin v. Ukraine, Appl. No. 16882/03, Judgment, 21 November 2013, § 37. 67 ECtHR, Ageyevy v. Russia, Appl. No. 7075/10, Judgment, 18 April 2013, § 201.

47 instead either to exaggerate or oversimplify the underlying reality. Th erefore, given the lack of suffi cient protection of the applicants’ reputation in compliance with the state’s positive obligations, the Court found an infringement of Article 8 of the Convention.68 Th e Court ruled that the publications of the newspaper Fædrelandsvennen had gravely damaged the applicant’s reputation and honour having been especially harmful to his moral and psychological integrity as well as to his private life in the case of A. v. Norway.69 Finding a violation of Article 8 of the Convention, the Court observed that it was not satisfi ed as to how the national courts had struck a balance between the newspaper’s freedom of expression under Article 10 and the applicant’s right to respect for his private life under Article 8. Defamation proceedings with the involvement of business entities were the subject of the Court analysis in the cases Popovski v. “Th e former Yugoslav Republic of Macedonia”,70 Fürst-Pfeifer v. Austria,71 Petrina v. Romania 72 and some others.73 Th e discussed case- law shows that in most of the cases in this category, the breach of Article 8 arose from activities of newspapers, magazines, or TV companies that did not belong to the state. Again, it would be incorrect to say that the Court acknowledged violations of the right to private life by these subjects. In fact, fi nding a breach of Article 8 of the Convention stem from the improper balance of the freedom of expression and the respect to private life. Nevertheless, businesses should take into account the described case-law in order to prevent human rights abuses in their conduct. Th e last group of cases to be discussed in this paper relate to employment disputes. 2.3 Employment disputes According to Article 34 of the Convention, the Court has no jurisdiction to consider applications directed against businesses.74 Th erefore, it is clear that employees may not complain before the Court regarding the behaviour of their employers which are private companies. Nonetheless, the practice shows that under certain circumstances the abusive conduct of a business may become the subject of its examination. Situations concerning surveillance at a workplace may fall under the notion of the right to private life. Th e fi rst judgment related to the monitoring of employee’s correspondence (Halford v. the United Kingdom) dates back to 1997 and does not concern a private company. However, the principles elaborated by the Court in this case are applicable to the activities of businesses as well. Th e Court found a breach of Article 8 of the Convention in relation to the interception of calls made on Ms Halford’s offi ce telephones 75 and ruled that the conversations held by the applicant at her workplace fell within the

68 Ibid., § 239. 69 ECtHR, A. v. Norway, Appl. No. 28070/06, Judgment, 9 April 2009, § 73. 70 ECtHR, Popovski v. “Th e former Yugoslav Republic of Macedonia”, Appl. No. 12316/07, Judgment, 31 October 2013. 71 ECtHR, Fürst-Pfeifer v. Austria, Appl. Nos. 33677/10 and 52340/10, Judgment, 17 May 2016. 72 ECtHR, Petrina v. Romania, Appl. No. 78060/01, Judgment, 14 October 2008. 73 E.g. ECtHR, Pfeifer v. Austria, Appl. No. 12556/03, Judgment, 15 November 2007. 74 ECtHR, Reynbakh v. Russia, Appl. No. 23405/03, Judgment, 29 September 2005, § 18. 75 ECtHR, Halford v. the United Kingdom, Appl. No. 20605/92, Judgment, 25 June 1997, § 51.

48 scope of the notions of “private life” and “correspondence” within the meaning of this provision. Th is principle was confi rmed also by the judgment in the case of Copland v. the United Kingdom ten years later.76 Today, the majority of conversations are performed via the internet. In the case of Bărbulescu v. Romania the Court observed that emails sent from the workplace and other information derived from the monitoring of a person’s internet use enjoy similar protections under Article 8 of the Convention as other types of correspondence.77 In a recent case, Romania was held responsible for an infringement of its positive obligations in relation to the conduct of a private company, the Bucharest offi ce of S. Th e applicant, Mr Bogdan Mihai Bărbulescu, was dismissed for using the company’s internet network during working hours in breach of the company’s internal regulations. It was proven that over a certain period of time the company had monitored his communications on a Yahoo Messenger account, including those with Mr Bărbulescu’s fi ancée. Th e applicant complained before the Court under Article 8 of the Convention that the monitoring of use of the internet at his place of work and the use of data collected to justify his dismissal breached his right to respect for private life and correspondence. Th e Court noted that the domestic courts had failed to determine, inter alia, whether the applicant had received prior notice from his employer of the possibility that his communications on Yahoo Messenger might be monitored. It was established that Mr Bărbulescu had not been informed of the nature nor the extent of the monitoring. As a result, the Court ruled that the domestic authorities had not aff orded adequate protection of the applicant’s right under Article 8 of the Convention. Th e applicants in the case of Antović and Mirković v. Montenegro complained that the use of video surveillance equipment in the university auditoriums where they held classes had violated their right to respect for their private life.78 Th e Court agreed with the applicants and ruled that there had been a violation of Article 8 of the Convention, fi nding that the camera surveillance had not been in accordance with the law. Th e case of López Ribalda and Others v. Spain concerned video surveillance of a Spanish family-owned supermarket chain’s employees. Th e applicants were dismissed primarily on the basis of this video material and the Spanish courts acceptance of the recordings as evidence upheld their dismissal. Th e Court observed that, in the present case, the employer installed both visible and hidden surveillance cameras. Th e employees were only aware of the visible cameras and were not informed of the installation of video surveillance covering the cash desks. Th e Court noted that the video surveillance carried out by the employer did not comply with the requirements stipulated in the domestic law, especially regarding the obligation to previously, explicitly, precisely and unambiguously inform those concerned about the existence of a system collecting personal data. Given the fact that the rights of the employer could have been safeguarded by other means, notably by previously informing the applicants even in a general manner, the Court held that such conduct was contrary to Article

76 ECtHR, Copland v. the United Kingdom, Appl. No. 62617/00, Judgment, 3 April 2007, § 41. 77 ECtHR, Bărbulescu v. Romania [GC], Appl. No. 61496/08, Judgment, 5 September 2017, § 72. 78 ECtHR, Antović and Mirković v. Montenegro, Appl. No. 70838/13, Judgment, 28 November 2017, § 35.

49 8 of the Convention.79 Th e Court also distinguished this case from the Köpke case,80 where the surveillance measure was limited in time. It stressed that in the instant case the covert video surveillance did not follow a prior substantiated suspicion against the applicants and was not aimed at them specifi cally, but at all of the staff working on the cash registers, over a period of weeks without any time limit. Th e most recent judgment on this type of dispute was rendered on 22 February 201881 and concerned the dismissal of an employee after the seizure of his work computer revealed a storage of pornographic fi les. Th e applicant complained under Article 8 of the Convention that his employer had opened, in his absence, personal fi les stored on the hard drive of his work computer. Th e Court found no violation of this provision, ruling that the French authorities had not overstepped the margin of appreciation available to them. It noted in particular that the conduct at issue had pursed a legitimate aim of protecting the rights of employers, who might legitimately wish to ensure that their employees were using the offi ce computer facilities in line with their contractual obligations. Th e Court also observed that French law contained a privacy protection mechanism allowing employers to open only professional fi les and only in the employee’s presence. Th e said mechanism did not prevent the employer from opening the applicant’s fi les since they had not been duly identifi ed as being private. Although the case concerned an employment dispute with a state-owned company, SNCF, the principles elaborated here would apply similarly to the conduct of a private company. As we have seen, corporate human rights abuses may also steam from surveillance at the workplace. In order to comply with the Convention standards and the obligation to respect human rights, employers should explicitly inform their employees about monitoring of their work prior to doing so. Moreover, surveillance measures have to be limited in time.

3. Concluding remarks Th e analysis of the Court’s case-law under each of the three main categories illustrates that business entities may be involved in abuses of the right to respect for private and family life as set forth in Article 8 of the Convention. Even though the CoE documents related to the topic of business and human rights do not impose a direct obligation on private companies to protect human rights under the Convention, the judgments and decisions at issue may serve as the basis for possible indirect obligations of business corporations. Th e research demonstrates that the Convention mechanism can contribute to establishing human rights obligations for business entities in the sphere of private life. Th ese obligations are indirect and may be imposed only at the national level. Given the positive obligations, the described case-law may lead states to the introduction of corresponding legislation

79 ECtHR, López Ribalda and Others v. Spain, Appl. Nos. 1874/13 and 8567/13, Judgment, 9 January 2018, § 69. 80 ECtHR, Köpke v. Germany, Appl. No. 420/07, Decision, 5 October 2010. 81 ECtHR, Libert v. France, Appl. No. 588/13, Decision, 22 February 2018.

50 and practices as a preventive measure for breaches of the Convention. Such measures then may have an impact on the activity of businesses. In view of the idea of the UNGP, in particular its Principle 11, the case-law of the Court may become a “waymark” for business entities in accesing their activities. Knowledge of the Convention requirements may help prevent corporate human rights abuses. Th is guidance may become motivation for the preservation of human rights standards at business premises, workplaces, and outside of them aiming to respect the right to private life of the persons concerned.

51 4 The OECD Guidelines for Multinational Enterprises and the increasing relevance of the system of National Contact Points

Ondřej Svoboda1

1. Introduction Th e importance of multinational enterprises (MNEs) has emerged together with the expanding global trade and international investments fl ows under the process of globalisation. With the growing infl uence of corporations on the economy and society came increasing human rights issues, particularly in the case of MNEs operating in third world countries. Multiple approaches have been developed to help solve questions concerning MNEs’ responsibility for human rights protection. Traditionally, the main emphasis was placed on self-regulation supported by sanctions and enforcement at a national level. However, these do not always solve the problem of MNEs taking advantage of diff erent national regulatory regimes.2 Consequently, a number of actions targeting business conduct was taken at an international level in trying to react to internationalisation advantages in MNEs. Th e United Nations (UN),3 the International Labour Organisation (ILO),4 and the European Union (EU) have all developed their own standards which resulted into there being a variety of decentralised soft law eff orts. However, it is the Organisation for Economic Co-operation and Development (OECD) that remains the largest longstanding promoter of responsible business conduct, and as such, it has developed a set of principles to ensure that businesses adhere to basic standards of conduct. In 1976, the OECD produced the most prominent interstate document on corporate social responsibility – the OECD Guidelines for Multinational Enterprises (the Guidelines), which are still the only corporate social responsibility (CSR) instrument formally adopted by states’ governments. In essence, the Guidelines are recommendations addressed by

1 Charles University, Ministry of Industry and Trade of the Czech Republic. Th e author would like to thank Alex Ivančo, Ph.D., the head of the Secretariat of the National Contact Point of the Czech Republic who introduced him to the complex issues of the OECD Guidelines for Multinational Enterprises. Th e views and opinions expressed in this article are those of the author and do not refl ect the offi cial policy or position of the Ministry of Industry and Trade of the Czech Republic. 2 MUCHLINSKI, P. T.: Multinational Enterprises & the Law. Oxford: Oxford University Press, 2010, p. 40. 3 Th e UN Norms on the Responsibilities of Transnational Corporations and Other Business enterprises with regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev/2 (2003). 4 ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, Geneva, International Labour Organization, OB Vol. LXI, 1978, Series A, No. 1, DOCNO:28197701, adopted by the Governing Body of the International Labour Offi ce at its 204thSession, Geneva, November 1977.

52 governments to multinational enterprises and they clarify the shared expectations for business conduct of the governments adhering to them.5 Countries adhering to the Guidelines include all OECD member countries and several non-member countries. Th e overall number of countries that currently adhere to the Guidelines is 48.6 Indeed, with such broad governmental participation, the Guidelines have since their creation brought attention to and raised expectations in context of promoting CSR. In the new millennium, this belief has dimmed and the instrument is under criticism, predominantly coming from academia and civil society.7 Th e OECD itself admits some weaknesses of the system. Already, the 2013 Annual Report on the Guidelines highlighted in particular the rise in the number of new adhering countries in the recent years; the growing number and increased complexity of specifi c instances; the new provisions of the Guidelines on human rights, risk-based due diligence, and supply chains; and the higher concentration of complaints in non- adhering countries and the expanding proactive agenda. Moreover, new developments such as the Rana Plaza tragedy and the reopening of Myanmar to international investment have highlighted the need for National Contact Points (NCPs) to work more.8 Th is contribution takes a more positive view: the Guidelines are an important tool in the fi eld of responsible business conduct (RBC) and CSR and in their prospects. For this purpose, this article examines fi rstly the signifi cant developments to date and explores the role of the Guidelines. It is divided into the next four parts, starting with the outline of the nature and content of the Guidelines. Further follows an examination of the structure and functioning of NCPs. Th e next chapter explores NCPs “in practice”, providing readers with two case studies of recent disputes under the Guidelines handled by the Swiss and Dutch NCPs. Th is part is intended to prove the growing relevance of the system in mitigation of business activities. Finally, the article off ers some concluding remarks about the Guidelines and their increasing relevance in the protection of societal values and human rights today.

5 OECD Guidelines for Multinational Enterprises (2011), Preface, para 1. 6 Th e 35 OECD member countries: Australia (adherence in 1976), Austria (1976), Belgium (1976), Canada (1976), Chile (1997), Czech Republic (1995), Denmark (1976), Estonia (2001), Finland (1976), France (1976), Germany (1976), Greece (1976), Hungary (1994), Iceland (1976), Ireland (1976), Israel (2002), Italy (1976), Japan (1976), Korea (1996), Latvia (2004), Luxembourg (1976), Mexico (1994), Netherlands (1976), New Zealand (1976), Norway (1976), Poland (1996), Portugal (1976), Slovak Republic (2000), Slovenia (2002), Spain (1976), Sweden (1976), Switzerland (1976), Turkey (1981), United Kingdom (1976), United States (1976); and the 13 non-member countries: Argentina (1997), Brazil (1997), Colombia (2011), Costa Rica (2013), Egypt (2007), Jordan (2013), Kazakhstan (2017), Lithuania (2001), Morocco (2009), Peru (2008), Romania (2005), Tunisia (2012), Ukraine (2017). 7 E.g. ROBINSON, S.: International Obligations, State Responsibility and Judicial Review Under the OECD Guidelines for Multinational Enterprises Regime, 30 Utrecht Journal of International and European Law, 2014, p. 72. 8 OECD. Annual Report on the OECD Guidelines for Multinational Enterprises 2013: Responsible Business Conduct in Action. OECD Publishing, 2014, p. 9-11.

53 2. Nature and content of the OECD Guidelines for Multinational Enterprises Th e Guidelines are a part of the OECD Declaration on International Investment and Multinational Enterprises 9 and they should be read in this context. Th e Declaration is an important policy commitment of adhering governments adopted by OECD Governments in 1976 (and subsequently updated) to facilitate direct investment among OECD Members. For this purpose, it balances the promotion by governments of an open international investment climate with a commitment to responsible business conduct. Th e Guidelines were created in 1976 and they are the only multilaterally agreed and the most comprehensive code of RBC that governments have ever committed to. In other words, they represent a consensus on what constitutes good corporate behaviour.10 According to the Guidelines, States have a primary duty to protect human rights, however companies should respect human rights wherever they operate. Th e Guidelines can be characterised as a set of non-binding principles, an enforceable code of conduct and “soft law” from the international law point of view.11 In describing themselves, the Guidelines use terms “voluntary”, “non-binding” and “not legally enforceable”. Th ey are considered to be just morally binding.12 Indeed, this invites a question over the eff ectiveness and compliance – doubts inherent to soft law in general. Nevertheless, soft law instruments may eventually develop into binding or hard law, particularly when the implementation proves eff ective.13 Th is is the case of the Guidelines when despite their non-binding nature, the adhering countries are responsible for the implementation of the Guidelines and it infl uences their compliance as will be discussed below. Furthermore, soft law instruments may eventually develop into binding or hard law, particularly when the implementation proves eff ective.14 MNEs are expected to obey domestic law and observe the Guidelines which represent adhering countries’ expectations for multinational behaviour.15 Enterprises should avoid and address what is referred to as “adverse impacts” on matters covered by

9 OECD Declaration on International Investment and Multinational Enterprises, adopted 25 May 2011. Th e Guidelines are one of the four annexes attached to the Declaration, which comprises four elements: the Guidelines, the “national treatment” principle, the commitment to minimize confl icting requirements, and the commitment to cooperate in the fi eld of international investment incentives and disincentives. 10 MUCHILINSKI, P. T.: Human Rights and Multinationals – Is Th ere a Problem?, 77 International Aff airs, p. 37. 11 DAVARNEJAD, L.: In the Shadow of Soft Law: Th e Handling of Corporate Social Responsibility Disputes Under the OECD Guidelines for Multinational Enterprises, 2011 Journal of Dispute Resolution, 2011, p. 358. 12 Th eir use is nevertheless signifi cant in signalling development which may ultimately be converted into legally binding rules. SHAW, M. N.: International Law. Cambridge: Cambridge University Press 2008, p. 118. 13 ČERNIČ, J. L.: Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises, 4 Hanse Law Review 2008, p. 82. 14 Ibid. 15 Ibid, p. 79.

54 the Guidelines.16 “Adverse impacts” can be understood as harms to the environment, to people’s safety, to their enjoyment of their human rights, to integrity etc. Essentially, the Guidelines address involvement with adverse impacts across a range of societal concerns that are set out in Chapters III – VIII of the Guidelines. Th e Guidelines have been updated fi ve times since 1976: in 1979, 1984, 1991, 2000, and the most recent revision took place in 2011. Nevertheless, only major amendments can be identifi ed in 2000 and 2011. In a revision underwent in 2000 they received new chapters on corruption and consumer interests with a signifi cant update of the chapter on employment to fully cover the four main areas of ILO core labour standards.17 In 2011, the OECD took an important step towards the application of the Guidelines in the sphere of human rights as it was decided to update the Guidelines and to include new recommendations on human rights abuse.18 Also, guidance on supply chain responsibility was added as well as corporate due diligence forming the general operational principle under the Guidelines. Th e general trend in updating Guidelines therefore leads to the comprehensive scope of their application. Th e current version among other things contains RBC voluntary principles and standards that cover CSR principles, including disclosure, human rights, workers and industrial relations, the environment, good governance, and ethical conduct in the form of combatting bribery, bribe solicitation and extortion, and consumer interests. Th ere is a specifi c chapter on each of these areas which provides more detail of the forms of potential risks 19 and actual impacts which enterprises should avoid and address. It is worth mentioning that the crucial defi nition of multinational enterprises is formulated in an elusive way to cover all kinds of corporations. In fact, the OECD Guidelines apply to all multinational enterprises in all sectors operating in adhering countries.20 Moreover, the Guidelines apply to all the entities within the MNE, parent and local entities, and they apply to state owned enterprises.21 No less important is the territorial scope. Th is is a rather extensive issue because “the [g]overnments adhering to the Guidelines encourage the enterprises operating on their

16 OECD Guidelines for Multinational Enterprises (2011), Chapter II – General Policies, para 11. 17 OECD Guidelines for Multinational Enterprises (2000). 18 In the same year, the United Nations Human Rights Council unanimously endorsed the Guiding Principles which have become subsequently the authoritative global standard on the subject of business and human rights. Th e Guidelines incorporated two elements from the Guiding Principles: importance of due diligence processes in companies’ responsibility to respect human rights and due diligence requirement for all subjects covered by the Guidelines. RUGGIE, J. G., NELSON, T.: Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementation Challenges, 22 Brown Journal of World Aff airs, 2015, p. 170–171. 19 In the sense of an outward facing approach – risks created by enterprises and the negative consequences for the society and the environment if those risks materialise into impacts. 20 Th e Guidelines note that a “precise defi nition of multinational enterprises is not required for the purposes of the Guidelines. Th ese enterprises operate in all sectors of the economy. Th ey usually comprise companies or other entities established in more than one country and so linked that they may co-ordinate their operations in various ways.” Chapter I, para 4. 21 OECD Guidelines for Multinational Enterprises (2011), Chapter I – Concepts and Principles, para 1, 3, 4, 6; Commentary, para 10.

55 territories to observe the Guidelines wherever they operate.”22 Th e territorial extension to business operations in non-adhering countries is important because the majority of adverse eff ects occur in developing countries and not in the OECD member states.23 Th is refl ects the fact that one of the main purposes of the Guidelines is supporting RBC investment at a global, international level.

3. Structure and functioning of National Contact Points Despite the soft law nature of the Guidelines, there is a legal obligation regarding NCPs due to the binding nature of the OECD Council decision from 1984.24 All governments adhering to the OECD Declaration on International Investment and Multinational Enterprises are required to set up a NCP to promote the Guidelines, handle enquiries, and contribute to the resolution of issues that arise in relation to the implementation of the Guidelines in specifi c instances.25 Th e last function is the most important one in relation to situations when non-observance of the Guidelines is alleged.26 In addition, NCPs are also expected to participate in a proactive agenda by engaging at the national level with social partners and other stakeholders to assist them with identifying and responding to risks of adverse impacts associated with business operations.27 In eff ect, the decision of the OECD Council thus “laid the groundwork for the development of NCPs.”28 Moreover, the decision was amended to specify that NCP should have available human and fi nancial resources to fulfi l their responsibilities.29 Th is means that “the Guidelines regime is the only international CSR regime with a built-in, state-based governance mechanism.”30 Such implementation mechanism is a signifi cant comparative advantage in comparison to other international initiatives in the sphere of MNEs regulation.31 NCPs may have various forms, structure, and functioning as these issues are left to the discretion of the adhering States,32 provided the NCP meets the core

22 OECD Declaration on International Investment and Multinational Enterprises, adopted 25 May 2011. 23 DAVARNEJAD, p. 356-357. 24 OECD Council decisions regarding an instrument (i.e. the Guidelines) are legally binding for all OECD member countries (as well as for non-OECD countries if they adhere to the instrument) provided they do not abstain at the time these Decisions are adopted. Available at: https://www.oecd.org/legal/legal- instruments.htm (accessed 15 January 2018). 25 OECD Guidelines for Multinational Enterprises (2011), Decision of the Council on the OECD Guidelines for Multinational Enterprises, C(2000)96/FINAL, as amended, para I.1. 26 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, C. Implementation in Specifi c Instances. 27 OECD Guidelines for Multinational Enterprises (2011), Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises, para 18. 28 VAN T FOORT, S.: Th e History of National Contact Points and the OECD Guidelines for Multinational Enterprises, 25 Journal of the Max Planck Institute for European Legal History, 2017, p. 202. 29 OECD Guidelines for Multinational Enterprises (2011), Decision of the Council on the OECD Guidelines for Multinational Enterprises, C(2000)96/FINAL, as amended, para I.2-I.4. 30 ROBINSON, p. 69. 31 ČERNIČ, p. 83. 32 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, Section I.A.

56 criteria for “functional equivalence”: operating under these four basic principles: visibility, accessibility, transparency, and accountability.33 In addition, the Guidelines specify that NCPs should address specifi c instances in a manner that is impartial, predictable, equitable, and compatible with the Guidelines.34 A survey conducted by the OECD Secretariat shows that adhering governments have taken diff erent approaches when setting up their NCP in terms of structure and in terms of location.35 Th e Canadian NCP, for instance, is described as a multi-ministerial body.36 Other NCPs, such as Norwegian or Danish, are structured as independent agencies separated from governmental institutions.37 In relation to the implementation of the Guidelines, the decision of the OECD Council on the Guidelines designates NCPs to handle enquiries and contribute to the resolution of issues that arise from them.38 NPC provides the resolution of issues that arise from the alleged non-observance of the Guidelines as it may off er its “good offi ces” which basically means an alternative dispute settlement: dialogue or mediation and conciliation services. In the case of some NCPs, other role as fact fi nders,39 in the sense of an independent process by which a neutral arbiter determines the facts relevant to controversy, has been added.40 In this sense, the procedure represents a unique dispute settlement mechanism with the potential of a non-judicial grievance mechanism. Indeed, as is usual for alternative dispute resolution, parties to dispute cannot be compelled to participate in a conciliation or mediation process. Th erefore, NCPs use the active engagement of parties to resolve disputing issues.41 Th e disputes handled before this grievance mechanism are called specifi c instances.42 Any interested party, usually individuals, communities or non-governmental organisations which have been adversely impacted by the activities of a business enterprise or who can demonstrate an ‘interest’, broadly defi ned, in the alleged violation, can fi le a specifi c instance, claiming that certain conduct by an MNE is not in accordance with the

33 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, Section I. Th e core criteria are further explained in para 9 of the Commentary to the Procedural Guidance. 34 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, Section I.C. Th ese four guiding principles for specifi c instances are further explained in paragraph 22 of the Commentary to the Procedural Guidance. 35 OECD. Implementing the OECD Guidelines for Multinational Enterprises: Th e National Contact Points from 2000 to 2015. OECD Publishing, 2016, p. 40. 36 OECD. Annual Report on the OECD Guidelines for Multinational Enterprises 2015. OECD Publishing, 2016, p. 129. 37 OECD. Implementing the OECD Guidelines for Multinational Enterprises: Th e National Contact Points from 2000 to 2015. OECD Publishing, 2016, p. 69-70. 38 OECD Guidelines for Multinational Enterprises (2011), Decision of the Council on the OECD Guidelines for Multinational Enterprises, C(2000)96/FINAL, as amended, para I.1. 39 Th e author is, from sharing experience exercise, aware of a situation when one NCP even hired an on- the-ground investigator to make a determination about the actual events and veracity of the claims in a diffi cult case. Th e process was eff ective at documenting issues that needed addressing by the company, allowing for a very strong fi nal statement. However, the process was very costly and hard to replicate. 40 DAVARNEJAD, p. 365. 41 Ibid, p. 364. 42 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, C. Implementation in Specifi c Instances.

57 Guidelines. It often involves highly complex corporate responsibility questions and covers global supply chains in their entire length. Once a specifi c instance has been submitted, there are potentially four following phases to follow. Th e fi rst step is to determine whether the raised issues merit further examination and meet the criteria as set out in the procedural guidance.43 If the criteria set out in the procedural guidance are met, the NCP off ers good offi ces to examine the issues raised.44 At this stage the NCP tries to bring the complainants and company together to resolve the case. Since the good offi ces proposed by NCPs is a voluntary and consensual procedure, the unwillingness of one or both parties to come to the table can put the NCPs’ capacity to act as a mediator and to contribute to the resolution of issues at risk. Respecting the core criteria of functional equivalence are important to establish confi dence of the parties in the procedures and encourage their participation. Regardless of whether the parties have reached an agreement, the NCP issues a fi nal statement upon concluding specifi c instance processes.45 A fi nal statement may include specifi c recommendations. In some cases, NCPs also make determinations, evaluating whether a company observed the Guidelines or not. An unnecessary part is the follow up when the NCP monitors whether its recommendations were followed and parties act in compliance with an agreement. Specifi c instances are not legal cases and NCPs are not judicial bodies. As such, NCPs cannot impose sanctions nor provide a direct remedy. At the end of the process, the NCP publishes a statement regarding the issues raised and their assessment. NCPs thus cannot impose sanctions, directly provide compensation, nor can they compel parties to participate in the resolution of issues including but not limited to a mediation process.46 It thus remains a question whether NCPs provide access to an eff ective remedy. Nevertheless, they can serve “the court of public opinion” providing naming and shaming possibilities.47 NCPs thus can produce important consequences, as the two examples analysed below demonstrate. A further advantage of mediation is its use as a “relatively quicker alternative for the resolution of certain disputes that either do not require, or for which the complainants prefer not to pursue, judicial or quasi-judicial routes.”48 Since 2000, NCPs handled more than 400 cases relating to MNEs operation in over 100 countries and territories. Th e majority of the cases dealt with employment and workers issues (54%), followed by human rights (28%) and environmental issues (20%). Historically, the most frequent users were trade unions, with workplace complains prevailing. Th e introduction of Chapter IV into the Guidelines has led to the growing number of human rights cases because “under the Guidelines they now include

43 Ibid, para 1. 44 Ibid, para 2. 45 Ibid, para. 3. 46 OECD. Implementing the OECD Guidelines for Multinational Enterprises: Th e National Contact Points from 2000 to 2015. OECD Publishing, 2016, p. 5. 47 VAN T FOORT, p. 205. 48 RUGGIE, NELSON, p. 186.

58 all internationally recognized rights, not merely those a host government has ratifi ed.”49 Numbers easily demonstrated that although labour rights still have the largest portion of complains, issues related to health and housing, destroying sources of livelihood, or the security of persons steadily increase. Th e home countries with the highest number of cases are advanced and high-income economies, especially in Europe – the United Kingdom, the United States, France, Germany, and the Netherlands.50 Th ese numbers can be caused by the actual complained business operations, by companies headquartered in the jurisdictions, as well as stakeholders’ engagement and functionality of a local NCP. What is debated and criticised is the procedural handling specifi c instances because of the divergent approach of respective NCPs.51 Th e Guidelines are open to various kinds of interpretation and NCPs enjoy broad discretion of how to treat them.52 For some observers the greatest shortcoming is the lack of an enforcement mechanism 53 while the issue of an eff ective remedy before the NCPs was also a subject to the scrutiny of the UN High Commissioner for Human Rights under the Accountability and Remedy Project (ARP). Th e UN found room for improvement, e.g. in the case of the Korean,54 Mexican 55 and Brazilian NCPs;56 and called for “a comprehensive improvement of the eff ectiveness of the NCP system [which] would be a signifi cant contribution toward strengthening implementation of the Guiding Principles across a number of countries.”57 Th e mechanism is also criticised by civil society actors.58 Th e increasing number complaints before NCPs nevertheless have been becoming frequently used to test the eff ectiveness of

49 Ibid, p. 179. 50 Ibid, 175-176. 51 DAVARNEJAD, p. 363; ROBINSON, p. 72-73. 52 For some observers this “freedom to choose their procedural rules suggests the autonomy of the normative system within which these entities [MNEs] were judged” strengthens the institutional legitimacy of the NCP process. BACKER, L. C.: Rights and Accountability in Development (RAID) v DAS Air and Global Witness v Afrimex: Small Steps towards an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10 Melbourne Journal of International Law, 2009, p. 301-303. 53 ČERNIČ, p. 94; VENDZULES, S. F.: Th e Struggle for Legitimacy in Environmental Standards Systems: Th e OECD Guidelines for Multinational Enterprises, 21 Colorado Journal of International Environmental Law & Policy, 2010, p. 479. 54 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on its visit to the Republic of Korea, A/HRC/35/32/Add.1, 1 May 2017, par 76. 55 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on its mission to Mexico, A/HRC/35/32/Add.2, 27 April 2017, par 108(u). 56 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on its mission to Brazil, A/HRC/32/45/Add.1, 12 May 2016, par 70(g). 57 UN Working Group on Business and Human Rights Blog: Th e National Contact Point (NCP) System – Aligning NCP Processes with the UN Guiding Principles on Business and Human Rights, Cambridge Core blog, 28 November 2017. Available at: http://blog.journals.cambridge.org/2017/11/28/the-national- contact-point-ncp-system-aligning-ncp-processes-with-the-un-guiding-principles-on-business-and- human-rights/ (accessed 29 December 2017). 58 E.g. OECD Watch. Eff ective NCPs now! Remedy is the reason. November 2017; OECD Watch. Remedy Remains Rare, June 2015; Amnesty International UK. Obstacle course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises, 19 February 2016.

59 the Guidelines and NCP system. Furthermore, the growing body of NCPs’ statements continues “to contribute, incrementally, to institutionalisation of transnational systems of multinational regulation; systems that will have legal eff ect whether or not this is law as classically understood.”59

4. Recent developments in specific instances Th e Guidelines have in NCPs probably the most developed implementation mechanism of all instruments in the fi eld of CSR and RBC. In combination with the new chapter on human rights, NCPs have since 2011 experienced a sharp rise particularly in the numbers of instances concerning human rights issues. Furthermore, there have recently been instances which prove the increasing relevance of the system. 4.1 BWI vs. FIFA A specifi c instance is the one that was submitted by the Building and Wood Workers’ International (BWI), a global trade union federation, against the Fédération Internationale de Football Association (FIFA) regarding construction of the infrastructure related to the 2022 FIFA World Cup in Qatar.60 Th e complaint was presented to the Swiss NCP because FIFA is a non-governmental organisation established according to Swiss law and based in Switzerland. BWI alleged that FIFA failed to comply with the Guidelines in several aspects. Th ey claimed the existence of human rights violations such as discrimination and unequal remuneration, non-payments of wages, charging of recruitment fees, occupational health and safety issues, restrictions on the freedom of association, detention of migrant workers, the lack of safe and decent accommodations, and issues related to access to remedy.61 After considering several questions such as the identity of the parties, applicability of the Guidelines, and legal context and parallel proceedings, the Swiss NCP accepted this submission as a specifi c instance for further proceedings while off ering its good offi ces.62 After a mediation facilitated by an external professional mediator proposed by the Swiss NCP, FIFA accepted “its responsibility to mitigate risks and aimed to build and exercise its leverage whenever possible with all relevant actors in Qatar to contribute to ensuring decent and safe working conditions […].”63 FIFA also recognised that there is room for improvement in addressing the situation of migrant workers. Both sides agreed to strengthen their collaboration and reach out to other relevant stakeholders in collaboration with the competent authorities. In addition, specifi c measures were taken to improve the situation regarding electronic payments. An important aspect of the

59 BACKER, p. 305. 60 Final Statement by the Swiss National Contact Point for the OECD Guidelines for Multinational Enterprises: Fédération Internationale de Football Association (FIFA), 2 May, 2017 [hereinafter NCP FIFA Final statement]. 61 Initial Assessment by the Swiss National Contact Point for the OECD Guidelines for Multinational Enterprises: Fédération Internationale de Football Association (FIFA), 13 October, 2015, p. 1-3. 62 Ibid, p. 7, 63 NCP FIFA Final statement, p. 3.

60 agreement was the introduction of a process for monitoring labour conditions through joint labour inspections.64 Based on the arrangement, the Swiss NCP welcomed the results which included “the resolution of the issues raised by the submitting party” and “the institutionalisation of the dialogue regarding human rights between FIFA and stakeholders”65 among others. 4.2 Former Employees of Bralima vs. Bralima and Heineken As an example of how decisions of NCPs can intervene in post-confl ict areas serves the Bralima/Heineken case.66 Th e dispute was initiated in 2015 by a notifi cation submitted by the representatives of a group of former employees dismissed by Bralima during the period between 1999–2003, to the Dutch NCP. Th is specifi c instance involved allegations of 168 former employees of the Congolese company Bralima, which is a subsidiary of Heineken N.V., a multinational enterprise based in the Netherlands. Since 1987 Heineken has indirectly held around 95% of Bralima’s shares.67 Th e complaint stated that Bralima violated its own workers’ human rights, particularly in the form of serious errors in mass dismissals, irregularities, and deliberate omissions in the individual redundancy schemes for the dismissed workers. Some employees were forced into early retirement in 2000. Others were not paid adequate compensation and were deprived of social welfare. In addition, the procedure of dismissal was contrary to Congolese labour law. Bralima was accused of cooperation with the rebel movement RDC-Goma which was active in the Democratic Republic of the Congo from 2000 to 2003. Th e agreements resulted in mass dismissals that were not authorised by the competent authority, as required by law, but by RCD-Goma. Th is collaboration between Bralima and RCD-Goma is believed to have caused grave consequences for Bralima’s workers and their families.68 Initially, Bralima and Heineken rejected all of these claims and highlighted “the complexity involved with operating in volatile and confl ict-aff ected areas”.69 Nevertheless, the Dutch NCP concluded, after the initial assessment, that the complaint merited further consideration. Both parties agreed to have a constructive dialogue off ered by the Dutch NCP, provided by an experienced mediator. Th e mediator helped to bridge the gap, and the parties resolved the issue and settled the dispute.70 Unfortunately, in this specifi c instance, the parties wished to keep the outcome confi dential. Heineken publicly indicated that it would draw up a policy, including guidelines, on how to conduct business and operate in volatile and confl ict-aff ected countries. Heineken moreover committed itself to analyse its existing policies and processes in the light of the OECD Guidelines and the UN Guiding Principles on Business and Human

64 Ibid, p. 3-4. 65 Ibid, p. 6. 66 Final Statement by the Dutch National Contact Point for the OECD Guidelines for Multinational Enterprises: Bralima and Heineken, 18 August, 2017 [hereinafter NCP Bralima/Heineken Decision]. 67 Ibid, p. 2. 68 Ibid, p. 2-3. 69 Ibid, p. 3. 70 Ibid, p. 5.

61 Rights.71 Regarding the confi dential part, there are reports suggesting that monetary compensation was awarded to the former employees.72

5. Conclusion Th e OECD Guidelines are one of the leading instruments for CSR and RBC concepts, particularly with their own non-judicial mechanism – the NCPs. Despite remaining voluntary for MNEs and being not legally enforceable, the Guidelines are one of the few State-based, non-judicial remedy systems for addressing business-related human rights abuses, consistent with the UN Guiding Principles on Business and Human Rights. An important step in this respect was the inclusion of Chapter IV on human rights in 2011. Aligned with that of the UN Guiding Principles on Business and Human Rights, the Guidelines refl ect relevant recommendations, reports, and other material and input from the Offi ce of the United Nations High Commission for Human Rights. Many National Action Plans on Business and Human Rights/RBC (NAPs) for business and human rights also mention the NCP as an important non-judicial grievance mechanism, and some of the NAPs have adopted actions to strengthen the NCPs. For example, eight of the 15 NCPs completed a NAP by the end of 2017. All of these NAPs include references to both the Guidelines and NCP mechanism. Th e NAP can contribute to the visibility of a NCP and give a national character to NCP operations. Additionally, fi ve of the selected NCPs reported NAPs in progress.73 Statements of G2074 and G7 75 also mention the importance of strengthening the NCPs. It is thus logical that the system of NCPs is an essential element of this instrument and in a broader sense, a part of emerging “alternative governance structures” for MNEs production chain systems.76 Not only are the NCPs required to promote the Guidelines, but they must also deal with complaints against MNEs that have allegedly failed to adhere to the Guidelines’ standards, including human rights. Th e active role of NCPs contributes to development, which transforms the nature of the OECD Guidelines. Pressure stemming from complains and public attention and scrutiny, force adherent countries to implement and observe the OECD Guidelines. Th rough mediation or off er of their good offi ces, NCPs can help facilitate agreements between parties which may even result into a direct remedy to victims of the adverse impact of business operations. Recent specifi c instances, such as the ones concerning FIFA and Heineken, prove the increasing relevance of the NCP mechanism in human rights protection. Th e two recent

71 Ibid, p. 5-6. 72 NIEUWENKAMP, R.: Beer, confl ict and compensation: Heineken-Congo agreement, OECD Insights, 15 September 2017. Available at: http://oecdinsights.org/2017/09/15/beer-confl ict-and-compensation- heineken-congo-agreement/ (accessed 23 December 2017). 73 OECD. Annual Report on the OECD Guidelines for Multinational Enterprises 2016. OECD Publishing, 2017, p. 21-23. 74 G20 Leaders’ Declaration: Shaping an interconnected world, 8 July 2017. 75 Leaders’ Declaration G7 Summit, 7–8 June 2015. 76 BACKER, L. C.: Regulating Multinational Corporations: Trends, Challenges, and Opportunities, 22 Brown Journal of World Aff airs, 2015, p. 165.

62 cases have suggested how the NCP system may have a substantial eff ect even though specifi c instances are not legal cases and NCPs are not judicial bodies. On the other hand, despite the recent progress in strengthening NCP governance structures and processes, stakeholders continue to express concerns about the uneven performance of NCPs and the lack of functional equivalence. Th is trajectory, if unchanged, runs the risk of undermining the eff ectiveness and credibility of the Guidelines as a leading corporate responsibility instrument. Th ese concerns have recently led to a plan for a comprehensive peer-review process, which all NCPs should go through during the coming years. Another response is the ongoing work of the OECD Investment Committee. In order to clarify, apply, and expand the RBC principles in the Guidelines, the OECD has focused on developing the following sectoral tools during the last years: the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Confl ict-Aff ected and High-Risk Areas, the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, the FAO-OECD Guidance for Responsible Agricultural Supply Chains, the OECD Due Diligence Guidance on Responsible Supply Chains in the Garment and Footwear Sector and the Responsible Business Conduct for Institutional Investors, as recommendations for due diligence under the Guidelines. Taking into account all of the above, the OECD Guidelines for Multinational Enterprises remain the most prominent interstate document on CSR and RBC.

63 5 United Nations Human Rights Treaty Bodies’ Approach to States’ Obligations in the Context of Business Activities

Ivana Machoňová Schellongová *

Th e United Nations human rights treaty system consists of nine core human rights treaties 1 and their optional protocols. Th e mandate of m onitoring how the State parties comply with these treaties and protocols is assigned to the nine committees 2 and one sub-committee 3 – generally known as the “human rights treaty bodies”. Except the Sub-Committee on Prevention of Torture, which has a specifi c mandate on monitoring places of detention, all treaty bodies perform three main functions. Firstly, they review State party reports about a treaty implementation and issue recommendations, called “concluding observations”. Secondly, they consider individual complaints on alleged violations of a treaty, provided that the respective State party accepted such mandate, and issue “views” or “decisions” on whether rights under a treaty have been violated in an individual case, and if so, recommend a relevant remedy. Th irdly, treaty bodies adopt “general comments” 4 interpreting treaty obligations and assisting State parties in fulfi lling their reporting obligations. Th is chapter discusses how the human rights treaty bodies have approached State parties’ obligations in the context of business activities, in particular the duties of States to prevent and address the adverse impacts of business activities on human rights. It does not aim to off er an exhaustive and detailed analysis but rather to show a few examples of some trends and developments and to demonstrate the relevance of the United Nations * JUDr. Ivana Machoňová Schellongová D.E.A. is Human Rights Offi cer in the Human Rights Treaties Branch of the Offi ce of the High Commissioner for Human Rights (OHCHR). She is also a lecturer of the international human rights law in the Webster University in Geneva. Th e views expressed in the article are the author’s own and do not refl ect the views of OHCHR. 1 International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW), International Convention from the Protection of All Persons from Enforced Disappearances (ICPPED) and Convention on the Rights of Persons with Disabilities (CRPD). 2 Human Rights Committee (HRCttee), Committee on Economic Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee against Torture (CAT), Committee on the Elimination of Discrimination against Women (CEDAW), , Committee on the Rights of the Child (CRC), Committee on Migrant Workers (CMW), Committee on Enforced Disappearances (CED), Committee on the Rights of Persons with Disabilities (CRPD). 3 Th e Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (SPT). 4 CEDAW and CERD adopt general recommendations.

64 human rights treaties and treaty bodies in preventing and addressing the impact of business activities on human rights. International human rights treaties stipulate obligations of States, e.g. State parties to these treaties, and not of private entities, such as business enterprises. However, States parties have to protect individuals against violations of rights guaranteed in those treaties committed by third parties, including businesses, as part of their duty to protect. Failure to fulfi l this duty may amount to a violation of the State’s treaty obligations. An examination of the treaties, treaty bodies’ recommendations and jurisprudence confi rms that the duty to protect includes preventing corporations – both national and transnational, publicly or privately owned - from infringing rights, taking steps to punish violations and provide reparation to victims when violation of their rights occur.5 Under some circumstances, State parties can be directly responsible for impact of business activities on human rights, for example in the case of publicly owned enterprises or exercise of public contracts, if the business entity acts on the State instructions or is under the State’s control or direction in carrying out the particular conduct at issue.6 Another example of the direct State’s responsibility includes situations when a business entity is authorized to exercise elements of a government authority, such as private prisons or security forces.7 Finally, under the general rules on state responsibility, the adverse impact on human rights by a business entity activity can be also attributed to the State if the later acknowledges and adopts such conduct as its own.8

Provisions of human rights treaties While the earlier human rights treaties do not refer to private enterprises in their provisions, the more recent once, starting with the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) contain a few specifi c references and obligations of States vis-a-vis business entities. For instance, article 2 (e) of CEDAW requests States to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.” Similarly, article 4 (e) of the Convention on the Rights of Persons with Disabilities (CRPD) requires that States “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise”. In addition, article 9 of CRPD contains obligation of State parties to ensure that private entities off ering public services and facilities take into account accessibility to persons with disabilities. Th e Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography refers to legal persons in article 3 paragraph 4. It obliges State Parties to take measures in order to establish the liability of

5 See the Report of the Special Representative of the Secretary General on the Issue of human rights and transnational corporations and other business enterprises, Addendum, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries, A/HRC/4/35/Add.1. 6 Articles on responsibility of States for internationally wrongful acts, art. 8, A/56/10. 7 Ibid., art. 5. 8 Ibid., art. 11; See also General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, E/C.12/GC/24.

65 legal persons for off ences such as sale of children, sexual exploitation of children, and transfer of children organs for profi t or engagement of children in forced labour. Th e International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) refers to employers of migrant workers in article 43 paragraph 3. Th e oldest treaty, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) mentions groups and organizations, which can comprise business entities. Its article 2 paragraph (d) requires prohibition and bringing to an end racial discrimination by any persons, group or organization. Despite omissions and rather limited references to private enterprises in the human rights treaties, the treaty bodies have addressed State parties’ obligation to protect treaty rights from a harmful eff ect of business activities in their concluding observations, jurisprudence and general comments. Two treaty bodies, namely the Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights adopted specifi c general comments on this issue.9

Enterprises in the concluding observations Unlike decisions in individual cases, recommendations in the concluding observations of treaty bodies provide general guidance, address key concerns of compliance with the respective treaty and touch upon more systemic issues of legislation, policy, institutions and practice in treaty implementation. Regarding the business sector, the Governments have been requested to adopt, review or implement legislative, administrative, judicial, policy and other measures to ensure that the relevant treaty rights are not harmfully impacted by the business operations. Th e Committee on the Rights of the Child (CRC Committee) and the Committee on Economic, Social and Cultural rights (CESCR Committee) seem to have addressed the impact of business activities on the respective treaty rights more frequently comparing to other treaty bodies. Th e recommendations of CRC Committee concerning the business sector has related to both the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Th e Committee has often referred to its own General Comment No. 16 10 and to the United Nations Guiding Principles on Business and Human Rights.11 Th e most frequent recommendations of the CRC Committee related to the establishment of the legal or regulatory framework and adoption of legislation;

9 General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, CRC/C/GC/16, 17 April 2013 and General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, E/C.12/GC/24, 10 August 2017. 10 Ibid. 11 Th e Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, endorsed by the Human Rights Council in its resolution 17/4 of 16 June 2011.

66 companies’ assessment, consultations and public disclosure of their human rights impact; legal accountability for human rights violations of companies operating abroad; implementation, monitoring and remedies for victims of violations; and awareness- raising about harmful impact of some practices on children rights. Concerning the legislative and regulatory framework, the CRC Committee has recommended to the State parties on number of occasions “to examine and adapt its legislative framework to ensure the legal accountability of business enterprises and their subsidiaries operating in or managed from the State party ’s territory, especially in tourism sector, in relation to the sale and sexual and labour exploitation of and traffi cking in children” 12 or more generally, “to establish a regulatory framework to deal with the impact of the business sector on children’s rights” 13 or “to establish and implement regulations to ensure that the business sector complies with international human rights” 14 or that “the business activities do not negatively aff ect the rights of the child”.15 Th e CRC Committee has also regularly recommended to States to ensure eff ective implementation of human rights standards by business companies, to monitor such implementation and to provide remedies for victims when violations occur. As a preventive measure, the CRC Committee has suggested to States to require companies to undertake assessment of, consultation in relation to and full public disclosure of the human rights impacts of their business activities and plans to address such impact.16 In this context, the CRC Committee has also referred to the concept of corporate social responsibility, requesting States to adopt corporate social responsibility parameters, including child rights due diligence, for operations of corporations and other businesses both at home and abroad.17 Th e recommendation to undertake awareness-raising campaigns for business sector has been made mainly in relation to the tourism industry. For instance, a recommendation to “undertake awareness-raising campaigns for the tourism industry and the public at large on the prevention of child sex tourism, and widely disseminate the World Tourism Organization Global Code of Code of Ethics for Tourism among travel agents in the tourism industry”.18 Regarding extraterritoriality of human rights protection, some State parties have been requested to take measure so that business enterprises and subsidiaries operating in or managed from the State party’s territory do not violate human rights abroad, including

12 Concluding observations: Saint Vincent and the Grenadines (CRC/C/VCT/CO/2-3), Maldives (CRC/C/ MDV/CO/4-5), Colombia (CRC/C/COL/CO/4-5), Gambia (CRC/C/GMB/CO/2-3), Morocco (CRC/C/ MAR/CO/3-4), Georgia (CRC/C/GEO/CO/4). 13 Concluding observations: Switzerland (CRC/C/CHE/CO/2-4). 14 Concluding observations: Central African Republic (CRC/C/CAF/CO/2), New Zealand (CRC/C/NZL/ CO/3-4), Kazakhstan (CRC/C/KAZ/CO/4). 15 Concluding observations: Ireland (CRC/C/IRL/CO/3-4), France (CRC/C/FRA/CO/5), Chile (CRC/C/ CHL/CO/4-5). 16 Concluding observations: India (CRC/C/IND/CO/3-4), Russian Federation (CRC/C/RUS/CO/4-5), Sao Tome and Principe (CRC/C/STP/CO/2-4), Kuwait (CRC/C/KWT/CO/2), Denocratic Republic of the Congo (CRC/C/COD/CO/3-5). 17 Concluding observations: New Zealand (CRC/C/NZL/CO/5). 18 Concluding observations: Georgia (CRC/C/GEO/CO/4), South Africa (CRC/C/OPSC/YAF/CO/1), Maldives (CRC/C/MDV/CO/4-5), Poland (CRC/C/POL/CO/3-4), Madagascar (CRC/C/OPSC/MDG/ CO/1).

67 through their supply chain and business partners,19 are ensure that companies are legally accountable for any violations of children’s rights and human rights in general.20 As for the business sectors, many recommendations of the CRC Committee have been addressed to tourism industry (in relation to commercial sexual exploitation of children, sex tourism and traffi cking in children), mining (uranium) and extractive industry (gas, oil), and agriculture (including agriculture industry, such as palm oil, soya, cocoa, fi sheries), in some cases also to construction sector, food industry,21 trading companies and fi nancial institutions.22 In addition to human rights in general and children rights in particular, the CRC Committee has referred to compliance with the health, labour and environmental standards 23 with respect to assessment, implementation and monitoring of business activities. Th e Committee on Economic, Social and Cultural Rights has urged State parties to take measures to prevent business enterprises domiciled in its territory or under its jurisdiction from committing human rights violations abroad. In this context, the State parties have been demanded to adopt laws imposing a binging obligation on business enterprises to fulfi l their duty to care with respect to human rights. Th e State party has had to provide victims of human rights violations resulting from the activities of such business enterprises with an access to redress in the courts of the State party.24 Th e Committee has also referred to protection of specifi c right, such as the right to food, requiring State parties, for example, to ensure that activities of the private business sector are in conformity with the right to food.25 Recently, the CESCR Committee has been including a sub-heading on business and human rights into its concluding observations almost systematically. Taking into account developments in the business and human rights agenda, the CESCR Committee has repeatedly recommended developing national plans of action on business and human rights to implement the Guiding Principles,26 and establishing a legal obligation for companies domiciled in the State party to exercise due diligence to identify, prevent and mitigate the risk of violation of the Covenant rights. Th e later obligation extends also to the supply chain (subcontractors, suppliers, franchisees, etc.).27 Th e Committee has also requested to ensure that victims of violations resulting from the activities of the

19 For example, Italy was requested to provide for a clear framework under proposed legislation for eff ective monitoring to ensure that companies domiciled in Italy do not contribute to the use of child labour through their supply chain or business partners abroad. Concluding observations: Italy (CRC/C/ITA/ CO/3-4), see also Finland (CRC/C/FIN/CO/4). 20 Concluding observations: Switzerland (CRC/C/CHE/CO/2-4). 21 Concluding observations: Brazil (CRC/C/BRA/CO/2-4). 22 Concluding observations: Netherlands (CRC/C/NLD/CO/4). 23 Concluding observations: Kenya (CRC/C/KEN/CO/3-5). 24 Concluding observations: France (E/C.12/FRA/CO/4). 25 Concluding observations: Indonesia (E/C.12/IDN/CO/1). 26 Concluding observations: Russian Federation (E/C.12/RUS/CO/6), New Zealand (E/C.12/NZL/CO/4), Mexico (E/C.12/MEX/CO/5-6). 27 Concluding observations: Republic of Korea (E/C.12/KOR/CO/4).

68 State party companies, both at home and abroad, can claim reparations through the State party’s judicial and non-judicial mechanisms;28 to link public procurement with the observance of economic, social and cultural rights; and to strengthen the capacity of national contact points.29 Th e CESCR Committee has recommended measures for both developed and developing States. For example, it has urged France to take measures to prevent business enterprises domiciled in its territory or under its jurisdiction from committing human rights violations abroad. In that connection, it has encouraged adoption of a law imposing binding obligation on such enterprises to fulfi l their duty of care with respect to human rights.30 At its last session in June 2018, the Committee examined the negative impact of extractive activities on health and rights of workers, communities, farmers and agro-pastoralist in Niger. Th e concerns included uranium contamination of a town, consumption and contamination of water and expropriation of land without legal guarantees. Th e State party has been demanded, inter alia, to ensure strict application of the legal framework concerning exploitation of natural resources, conduct independent investigation into the impact of extractive activities on economic, social and cultural rights prior and during the implementation of projects, and conduct inspections of mining sites.31 Th e Committee on the Elimination of Racial Discrimination (CERD Committee) has focused on protection of human rights of vulnerable groups, such as indigenous people, minority groups and persons of African descent, from adverse impact of business activities.32 Th e Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee) has addressed discrimination of women in the private sector, requested adoption of temporary special measures to develop capacity of women entrepreneurs,33 to promote women access to management positions in the business sector 34 and more generally to adopt measures to ensure substantive equality of women with men in the labour market, promote employment of women, eliminate occupational segregation and close the gender wage gap.35 Th e Human Rights Committee has adopted recommendations specifi cally targeting the business sector less frequently. An example of a recommendation would be a request to State parties to set out clearly the expectations that all business enterprises domiciled

28 Ibid. 29 National contact points are established under the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development (OECD) in the Member States of OECD. 30 Concluding observations: France (E/C.12/FRA/CO/4). Th e Concluding observations were issued at 2016 when France considered adoption of the bill on corporate due diligence. Th e law was approved on 21 February 2017 and upheld by the Constitutional Court on 23 March 2017. 31 Concluding observations: Niger (E/C.12/NER/CO/1). 32 Concluding observations: Norway (CERD/C/NOR/CO/21-22), Netherlands (CERD/C/NLD/CO/19-21). 33 Concluding observations: Andorra (CEDAW/C/AND/CO/2-3). 34 Concluding observations: Denmark (CEDAW/C/DENPCO/7), Sweden (CEDAW/SWE/CO/7), Netherlands (CEDAW/C/NLD/CO/4). 35 Concluding observations: Hungary (CEDAW/C/HUN/CO/7-8) Concluding observations: Italy (CRC/C/ ITA/CO/3-4), see also Finland (CRC/C/FIN/CO/4).

69 in the territory or jurisdiction of the State respect human rights standards in accordance with the Covenant throughout their operations.36 Th e Committee has also recommended provision of remedies for victims of activities of business enterprises operating abroad.37 Th e treaty bodies have referred to the various business enterprises and sectors in concluding observations, including agriculture, extractive industry, forestry, development projects, private health or social security scheme and funds, banking, hospitality industry, media and privately operated detention facilities. Th e fact that the treaty bodies have mentioned some particular sectors should not be understood as a sign that they do not consider States responsible for protecting against abuses by other type of enterprises or in other sectors. On the contrary, all treaty bodies may examine States’ obligations in relation to any corporate act in any fi eld of activity.38

Jurisprudence of the human rights treaty bodies Treaty bodies considered number of individual complaints involving operation of business enterprises. Th e question in most of these cases was whether the measures taken by the State party ensured that the business policy and operations have not a harmful impact on human rights protected by a respective treaty. Th e Human Rights Committee has examined allegations of the violation of the Covenant in connection with operations of business entities on several occasions. Some cases involved alleged violations of rights of indigenous people or minorities as a result of business activities. For example, in the case of the Lubicon Lake Band v. Canada,39 the Committee has found the violation of the Covenant in connection with the expropriation of the territory of the Lubicon Lake Band for the benefi t of private corporate interests, including leases for oil and gas exploration. Such developments, according to the Committee, threatened the way of life and culture of the Lubicon Lake Band and were contrary to the article 27 of the Covenant as long as they continued. In Hopu and Bessert v. France,40 the Human Rights Committee has concluded that the construction of a hotel complex on the complainants’ ancestral burial grounds, which represent an important place in their history, culture and life, did interfere with their right to family and privacy. Th e State party has not shown that this interference was reasonable in the circumstances, and did not duly took into account the importance of the burial grounds for the complainants, when it decided to lease the site for the building of a hotel complex. Some cases dealt with by the Human Rights Committee involved consideration of responsibility of State party for acts of a business company. In Hertzberg et al. v. Finland,41 the Human Rights Committee has started from the premise that the

36 Concluding observations: Germany (CCPR/C/DEU/CO/6). 37 Ibid., Republic of Korea (CCPR/C/KOR/CO/4). 38 See the Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, footnote 5, page 18. 39 Communication No. 167/1984 (26 March 1990), U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990). 40 Communication No. 549/1993, U.N. Doc. CCPR/C/60/D/549/1993/Rev.1. (1997). 41 Communication No. 61/1979, U.N. Doc. CCPR/C/OP/1 at 124 (1985).

70 State party is responsible for actions of the Finnish Broadcasting Company (FBC), in which the State holds a dominant stake (90 per cent) and which is placed under specifi c government control. Th e issue of responsibility of the State party for acts of a private company allegedly leading to violation of treaty rights was also raised in the case Love v. Australia.42 Th e State party has argued that the acts in question (dismissals) were carried out by Australian Airlines (Quantas Airlines Limited), e.g. an incorporated company, and while the State party owned all shares in the company at the time of the dismissals; the Government did not intervene in its day-to-day administration. Since the Human Rights Committee concluded that the complainant did not suff er discrimination in violation of article 26 of the Covenant, it did not deem necessary to decide whether the act was directly imputable to the State party, or whether the State party’s responsibility would be engaged by a failure to prevent third party discrimination. Th e Committee on the Elimination of the Racial Discrimination (CERD Committee) examined potential discrimination in policy and practice of business enterprises. For instance, in the case Ziad Ben Ahmed Habassi v. Denmark,43 the CERD Committee considered alleged violation of the Convention in connection with the refusal of a loan by the private bank Sparbank Vest because of nationality of the applicant. Concluding that nationality is not the most appropriate requisite when investigating a person’s will or capacity to reimburse a loan, the CERD Committee found it appropriate for the State party to initiate a proper investigation into the real reasons behind the bank’s loan policy in order to ascertain whether or not criteria involving racial discrimination are being applied. Th e Committee concluded that steps taken by the State party were insuffi cient and that the complainant was denied an eff ective remedy. Th e case Nicolai Hernansen, Signe Edrich and Jonna Vilstrup v. Denmark 44 has raised an issue of an alleged discrimination due to the policy by Th ai Airways that off ered an “ethic discount” to ethnic Th ai travelling to Th ailand. Th e communication was declared inadmissible rationne personae for lack of victim status of the petitioners. However, the company cancelled the discount scheme following the decision by the Complaint Committee for Ethnic Equal Treatment. Th e very fi rst complaint considered by the Committee on the Rights of Persons with Disabilities (CRPD Committee), Szilvia Nyusti and Péter Takács v. Hungary,45 concerned the activities of a private bank, namely the OTP Bank Zrt. credit institution. Th e complainants who were persons with severe visual impairments concluded contracts with OTP, according to which they were entitled to use banking cards. However, they were unable to use the automatic teller machines (ATMs) without assistance, as the keyboards of the ATMs operated by OTP were not marked with Braille, nor do the ATMs provided audible instructions and voice assistance for banking card operations. While they paid annual fees for banking card services and transactions equal to the fees paid by other clients, they were unable to use the services provided by the ATMs at the same level as sighted clients. Th e CRPD Committee found violation of article 9,

42 Communication No. 983/2001, U.N. Doc. CCPR/C/77/D/983/2001 (2003). 43 Communication No. 10/1997, CERD/C/54/D/10/1997, 6 April 1999. 44 Communication No. 44/2009, U.N. Doc. CERD/C/77/D/44/2009 (2010). 45 Communication No. 1/2010, CRPD/C/9/D/1/2010, 21 June 2013.

71 paragraph 2 (b), of the Convention, since none of the measures taken by the State party ensured the accessibility to the banking card services provided by the ATMs operated by OTP for the complainants or other persons in a similar situation. Th e complaint S.C. v. Brazil,46 that was considered inadmissible for non-exhaustion of domestic remedies, concerned practice of the private bank, Banco de Brasil, requiring the demotion of any staff member who remains on medical leave for more than three or six months. Th e complainant alleged that such a policy promotes discrimination based on disability, and argued that she has not enjoyed the same working conditions and opportunities as her colleagues with equivalent skills due to her impairment. Th e complaint F. v. Austria 47 concerned the failure of the State-owned transport company, Linz Linien GmbH, to install an audio system on a tram line to enable visually impaired and hearing impaired people to access all important information without outside assistance. Affi rming violation of the Convention, the Committee requested the State to remedy the lack of accessibility to the information available for all lines of the tram network. A few above examples of treaty bodies’ jurisprudence attest to the relevance and potential of complaint procedure under the respective treaties to examine an impact of business activities on human rights guaranteed by the respective treaty. Th ey also show a variety of concerns that may be raised – from expropriation of land from indigenous people for extractive industry or development projects to a business policy and practice towards the company’s clients or employees, including issues such as discrimination on a basis of race, nationality or disability. While the decisions are addressed to the State parties, they also contain important messages for the business enterprises on how to fulfi l the ever-growing expectations of their compliance with the human rights standards.

Enterprises in General Comments of the treaty bodies General comments of the treaty bodies confi rm the positive obligation of the State parties to protect against abuse by non-state actors, such as “private actors”, “private entities”, “private agencies”, which comprise also business enterprises. While many treaty bodies specifi cally referred to business enterprises in various general comments,48 only two Committees, CRC and CESCR Committee, have adopted specifi c general comments focusing on obligations of State parties in the context of business activities. Th e more recent of the two specifi c general comments, namely the General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities,49 reiterates that discrimination in

46 Communication No. 10/2013, CRPD/C/12/D/10/2013, 28 October 2014. 47 Communication No. 21/2014, CRPD/C/14/D/21/2014, 21 September 2015. 48 For example, CESCR Committee has referred to business activities in its following general comments: No. 14 (2000) on the right to the highest attainable standard of health, No. 4 (1991) on the right to adequate housing, No. 12 (1999) on the right to adequate food, No. 15 (2002) on the right to water, No. 19 (2007) on the right to social security, No. 18 (2005) on the right to work, No. 23 (2016) on the right to just and favourable conditions of work. 49 Th e General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, E/C.12/GC/24, 10 August 2017. Th e General Comment builds on the previous CESCR Committee general comments, its Statement on State obligations related to corporate responsibilities in the context of the Covenant rights (2011) and takes into

72 the exercise of economic, social and cultural rights is frequently found in private spheres. Th is includes workplace, the labour market and the housing and lending sectors.50 Th e Committee has stressed that some groups are often disproportionally aff ected by the adverse impact of business activities, such as women, children, indigenous peoples, ethnic and religious minorities, and are at a greater risk of facing intersectional and multiple discrimination. For example, investment-linked evictions and displacements often result in physical and sexual violence against, and inadequate compensation for, women and girls.51 Th e General comment uses the classical division of State’s obligations under human rights treaties, namely obligations to protect, respect and fulfi l, with the most detailed elaboration of the obligation to protect. Th e obligation to respect is violated when States parties prioritize the interests of business entities over the economic, social and cultural rights enshrined in the Covenant without adequate justifi cation, or when they pursue policies that negatively aff ect such rights. Th is may occur for instance in the context of forced evictions ordered due to an investment project without prior and informed consent of an indigenous population. Th erefore, conclusion of any trade or investment treaty should be preceded by human rights impact assessment to allow for identifi cation of the potentially negative impact and of the measures to mitigate and compensate such impact.52 States parties cannot derogate from the obligations under the Covenant in the trade and investment treaties. Th e obligation to protect requires State parties to prevent eff ectively infringement of economic, social and cultural rights in the context of business activities. Th is includes adoption of legislative, administrative and other measures to ensure protection against harmful impact of business activities on enjoyment of the Covenant rights, and provision of an access to eff ective remedies to victims, if such harmful impact occurs. Th is obligation also entails a positive duty of States to adopt a legal framework requiring business entities to exercise due diligence to identify, prevent and mitigate risks of violation of the Covenant rights by business operations. Due diligence requirement should extend to the business entity’s supply chain, sub-contractors, suppliers, franchises and business partners. Measures to fulfi l obligation to protect sometimes require direct regulations, for example restricting marketing and advertising of certain goods and services in order to protect public health (such as tobacco products), combating gender role stereotyping and discrimination, exercising rent control in the private housing market, establishing minimum wage, progressively eliminating informal forms of employment to enforce protection of workers’ labour rights and social security. While privatization of services traditionally provided by State is not per se prohibited by the Covenant, private providers of such services (such as provision of water, electricity, health care, education) should be subject to strict regulations (quality requirements,

account contribution of other treaty bodies, including the General Comment of the CRC Committee No. 16 (2013). 50 Ibid., paragraph 7. 51 Ibid., paragraph 9. 52 Ibid, paragraph 13.

73 pricing policies) to ensure continuation of enjoyment of economic and social rights by population. Th e provision of goods and services essential to enjoyment of the Covenant rights should not be made conditional on the ability to pay, for instance, the private good-quality education being made a privilege available only to a wealthiest segment of the society while the mainstream public education would not meet the minimum educational standards. Th erefore, States should retain at all times the obligation to regulate private actors to ensure that the services they provide are accessible to all, are adequate, are regularly assessed in order to meet the changing needs of the public and are adapted to those needs.53 Th e obligation to fulfi l refers to steps taken by the State parties to facilitate and promote enjoyment of the Covenant rights, including provision of goods and services essential to such enjoyment. It may include steps such as progressive taxation schemes or seeking business cooperation in implementing the Covenant rights. Th e General Comment examines in detail extraterritorial obligations of States under the Covenant concerning corporate sector.54 Acknowledging a signifi cant increase of activities of transnational corporations, growing investment and trade fl ows between countries and emergence of global supply chains, the Committee confi rms that the State parties’ obligations under the Covenant vis-a-vis the corporate sector do not stop at the national borders. Th e obligations of States under the Covenant are expressed without any restrictions linked to territory or jurisdiction. Th e extraterritorial obligations arise when a State party may infl uence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may contribute to the eff ective enjoyment of economic, social and cultural rights outside its national territory.55 Th is may also include off ering of incentives, such as provisions in public contracts favouring business entities that have put in place eff ective due diligence mechanisms, or introducing direct obligations for companies, such as a duty to report on their policies and procedures to ensure respect for human rights. State parties should provide those whose rights have been violated in the context of business activities with an access to remedy and should ensure corporate accountability for such violations. In this context, States have to address the numerous challenges, such as “hiding behind the corporate veil”,56 diffi culty to access information and evidence to substantiate the claim and lack of collective redress mechanisms. Th e General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights 57 confi rms State parties’ obligations regarding

53 Ibid., paragraph 22. 54 Th e General Comment distinguishes between extraterritorial obligation to protect, extraterritorial obligation to respect and extraterritorial obligation to fulfi l Covenant rights. It suggests range of specifi c measures recommended for State parties to meet these obligations. 55 Ibid., paragraph 28. 56 Th e situations where the parent company seeks to avoid lability for the acts of the subsidiary even when it would have been in a position to infl uence its conduct. 57 Th e General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, CRC/C/GC/16, 17 April 2013.

74 the impact of business activities and operations on children’s rights arising from the Convention on the Rights of the Child and its optional protocols. Th e general comment considers the relationship between State obligations regarding business activities and the general principles of the Convention, defi nes the general nature and scope of State obligations with regards to children’s rights and the business sector, examines the scope of obligations where impact of business activities on children’s rights is the most signifi cant and recommends a framework for implementation.58 Among the specifi c contexts, the general comments also refer to businesses operating in emergencies and confl ict situations where there may be a greater risk of abuse of children’s rights, including child labour and child soldiers. Home States of business enterprises should require that the enterprises undertake stringer child-rights due diligence to address potential risks of harming the Convention rights, and at the same time, the States should provide businesses with guidance and information.59 With respect to transnational feature of corporate operations and extraterritorial jurisdiction, the CRC Committee examines obligations of host and home states of transnational corporations. Host States must ensure adequate regulations and institutional frameworks that ensures that corporations do not adversely aff ect the rights of the child. Home States have also obligations if there is a reasonable link between the State and the conduct concerned. Such link exists when a business enterprise has its centre of activity, is registered or domiciled or has its main place of business or substantial business activities in the State concerned. Th e framework for implementations suggests legislative, regulatory and enforcement measures, including specifi c suggestions concerning children’s rights due diligence by business enterprises, remedial, policy, collaboration, coordination and monitoring measures.60

Conclusion Treaty bodies pay increasingly attention to protection of the rights under their respective treaty against harmful impact of corporate activities. Th ey provide guidance to States on how to prevent and address corporate abuses in concluding observations, general comments and decisions in individual cases. In an absence of a specifi c treaty on business and human rights, such guidance is useful and welcome development. In particular, two specifi c general comments on State obligations in the context of business activities shed more light on some contentious issues, such as extraterritorial obligations, and off ered detailed recommendations on measures to be taken primarily by the State parties but subsequently also by the business enterprises. Decisions in individual cases can also inform policy decisions by both States and business enterprises to ensure compliance with human rights treaties provisions. Recommendations contained in concluding observations seem to comprise increasingly more business related measures, such as risk assessment, due diligence and disclosure policy recommendations. Along with the general comments, the concluding observations tend to refl ect developments in business and human rights agenda, especially the United Nations Guiding Principles

58 Ibid, paragraph 11. 59 Ibid, paragraphs 49-52. 60 Ibid, paragraphs 53-86.

75 on Business and Human Rights,61 but also other instruments, such as the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development (OECD). Th e recommendations included in concluding observations, general comments and decisions in individual cases should inform a broader national dialogue on business and human rights and encourage adoption and enforcement of appropriate measures to eliminate risk of corporate human rights abuses and ensure compliance with international human rights treaties’ obligations.

61 See footnote 11.

76 Part II.

HUMAN RIGHTS CHALLENGES

6 Democracy and the Rule of Law: Judicial Activism in Brazil as a Challenge for Fundamental Social Rights

Lenio Luiz Streck 1

1. Preliminary considerations: the copernican revolution of the law wrought by a new constitutionalism In these post-positivist times, the conditions under which a law may become valid have become an increasingly important topic of discussion, especially if predatory discourses stemming from the fi elds of politics, economics and ethics seek to undermine this validity. Ultimately, post-positivism is about discussing the role, the limits and the normative force of the law in democracies. Th is also appears to be the case in the context of fundamental social rights. In other words, at this point in history, a law that is not legitimized by the indelible stamp of democracy cannot be considered valid. Th us, I contend that the law should preserve its primary achievement since the second post-war period: its degree of autonomy. Jorge Miranda describes the new role of the law as the “Copernican Revolution of Public Law.” Th is concept refers to the new role played by the constitutions of the second post-war period and, likewise, the new role exerted by the constitutional courts, chiefl y in continental Europe. Th erefore, it is important to remember that within this context, theorists from a variety of social science fi elds – especially the sectors related to sociology, political science and law – have begun to address phenomena such as the judicialization of politics and judicial activism. Both issues address the problem of interpreting the law and the type of argument that can legitimately comprise a judicial decision. In other words, what are the conditions of possibility for making decisions via legal arguments? Under what circumstances can one assert that a court is not replacing the legislature and delivering political or moral arguments while interpreting the constitution? On this note, we must mention studies such as Th e global expansion of Judicial Power: the judicialization of politics (Chester Neal Tate and Torbjörn Vallinder),2

1 Pós-doutor em Direito pela Universidade de Lisboa; Mestre e Doutor em Direito pela Universidade Federal de Santa Catarina; Professor Titular do Programa de Pós-Graduação em Direito (Mestrado e Doutorado) da Universidade do Vale do Rio dos Sinos; Professor visitante/colaborador da Universidade Estácio de Sá, Università degli Studi Roma Tre e Faculdade de Direito da Universidade de Coimbra; Ex-Procurador de Justiça do Rio Grande do Sul; Advogado; Avenida Unisinos, 950, Cristo Rei, Caixa postal 275, 93022-000, São Leopoldo, Rio Grande do Sul, Brasil; [email protected]. 2 TATE, N. C.; VALLINDER, T.: (eds.). Th e global expansion of Judicial Power. New York: New York University Press, 1995.

79 On law, politics & judicialization (Martin Shapiro and Alec Stone Sweet)3 and Towards juristocracy: the origins and consequences of the new constitutionalism (Ran Hirschl).4 From another perspective, the article Decision-making in a Democracy: Th e Supreme Court as National Policy Maker (Robert A. Dahl) points to the incisiveness of judiciary power in driving political life.5 Th is issue is the great contemporary dilemma. To overcome the forms of rationalistic/ exegetical positivism (exegetical forms), jurists must (but have not yet) succeed in creating the conditions needed to control proactive positions. Th ese conditions are no less positivist if they are registered by betting on the discretionary power of the judges. If the interpreter was previously subjugated to a pre-established framework, then starting from the twentieth century, the interpreter has faced a new dilemma. Th at is, how does one establish controls for the interpretation of the law and prevent judges from co- opting the democratically constructed legislature? One symptom of this problem resides in the growth of judicial activism, especially in countries such as Brazil. Judicial activism undermines the degree of autonomy achieved by the law in this new paradigm, and this is exactly why it poses such a challenge for fundamental rights in the 21st Century.

2. Judicial activism: an example of how the theory has been incorrectly presented in Brazil Th e term judicial activism has also been used in Brazil as a tabula rasa. In the U.S., the tenure of judges and judicial activism has been discussed for more than two hundred years. However, we cannot forget that judicial activism in the U.S. was initially conducted in reverse such that one cannot consider activism to always be a benefi cial force. A typical case of reverse activism was the position of the U.S. Supreme Court regarding the New Deal. Clinging to the principles of laissez-faire and economic liberalism, the Supreme Court ruled that the interventionist measures established by the Roosevelt administration were unconstitutional.6 Interventionist attitudes in favor of basic human rights occur in a context that depends much more on the individual actions taken by an established majority than on the result of an activist ideal. For example, the case of the Warren Court was the result of the personal conceptions of a certain number of judges and not the result of a constitutional sentiment on the issue. In Brazil, the thesis of judicial activism has taken on an air of drama. We can draw an example of the judicial activism that pervades the minds of Brazilian jurists from the question brought to trial in the Action of Breach of Basic Law (Arguição

3 SHAPIRO, M.; SWEET, A. S.: On law, politics & judicialization. New York: Oxford University Press, 2002. 4 HIRSCHL, R.: Towards juristocracy: the origins and consequences of the new constitutionalism. Cambridge: Harvard University Press, 2007; also by the same author: Th e new constitutionalism and the judicialization of pure politics worldwide. Journal of Administrative Law, n. 251, May/August, 2009, pp. 139-175. 5 DAHL, R. A.: Decision-Making in a Democracy: Th e Supreme Court as National Policy Maker. Journal of Administrative Law, n. 252, September/December, 2009, pp. 25-43. 6 Cf. WOLFE, C.: Th e Rise of Modern Judicial Review. From constitutional interpretation to judge-made law. New York: Rowman & Littefi eleld, 1994.

80 de Descumprimento de Preceito Fundamental – ADPF)7 n. 178. Essentially, the Federal Public Prosecutor’s Offi ce fi led this measure in 2009 to offi cially recognize stable unions between same sex couples and guarantee them the rights aff orded to heterosexual unions. Th e action initially intended to recognize and remedy the alleged failure of the Legislature to regulate the rights of homosexual couples, though art. 226, § 3 of the Constitution points out that “for the purpose of protecting the State, the stable union between a man and woman is recognized as a family entity, and the law should facilitate its conversion into marriage.” Rejected outright, the Federal Public Prosecutor’s Offi ce presented the petition again and now seeks a verfassungskonforme Auslegung (constitutional interpretation) of art. 1.723 of the Civil Code 8 to provide full protection to homosexual unions. Th e perplexity that arises is due to the following question: how could such an omission exist if the Constitution itself states that the State’s duty is to protect the union between a man and a woman? Where would the omission be given that a constitutional command has determined that the State’s obligation is to protect the union between a man and a woman? We cannot speak of a hierarchy among constitutional norms. If we do, then we would have to accept Otto Bachof’s thesis regarding the possibility of unconstitutional constitutional norms. Th e most incredible aspect of ADPF is that it also intends to nullify the various decisions that have literally fulfi lled this constitutional command. Th us, this measure constitutes a form of hyper-activism. By outline, the following question is also of interest. Executing an important measure of this would transform the Court into a body with permanent powers to amend the Constitution such that the Court could assert a type of Verfassungswandlung (constitutional change) that would function, in fact, as a real Verfassungsänderung (amendment to the Constitution), which only can make via a constitutional amendment. Th e risk that arises from this type of action is that a judicial legislators of this type produces serious side eff ects. In other words, there are problems that simply cannot be resolved through an erroneous idea of judicial activism. Th e judiciary cannot replace the legislators. It is important to remember the diff erence between activism and judicialization: the former undermines the autonomy of law, whereas the second is contingent.9 We need not mention the numerous court decisions that oblige

7 In general, we can say that ADPF is a measure similar to the Verfassungsbeschwerde of German law or the Spanish and Mexican amparo (right to protection). However, law n. 9882/1999, which regulates the provisions of § 1 of art. 102 of the Federal Constitution, ultimately restricts, in an unconstitutional manner, the ability of legitimate parties to propose this important instrument to implement fundamental rights. Th e importance of this mechanism to the interpretation of the Constitution is shown by the topics debated in the following: ADPF n. 54, which debates the constitutionality of the criminalization of abortion in cases of anencephaly; ADPF n. 130, whose central issue revolved around the freedom of the press and the (im)possibility of censorship; and ADPF n. 153, which addressed the possibility of prosecuting and punishing off enders for crimes of torture that occurred during the military regime. To establish that ADPF n. 130 was fully upheld by the SFC, having been decreed a non-receipt of the press law (Law n. 5.250/1967). ADPF n. 153 was dismissed. ADPF n. 54 is still pending. 8 Article 1.723. “Th e familiar unit is recognized as a stable union between a man and woman, confi gured as a public, continuous and lasting living partner and established with the goal of forming a family.” 9 Note that a considerable number of Brazilian authors are concerned with the problems arising from this misguided conception of judicial activism in Brazil. On this note, we point out Vanice Lírio do Valle, José

81 governments even outside of Brazil to fi nance experimental medical treatments and provide drugs for various disorders, such as male erectile dysfunction and baldness. Th e procedural chaos generated by the case regarding homosexual unions shows how the discussion on the role of the judiciary in a constitutional democracy causes turmoil in Brazilian law. As previously mentioned, in the decision that healed the process, the then Chief Justice, Judge Gilmar Mendes, correctly indicated that the ADPF did not seem to be the best mechanism for resolving the dispute because the alleged omission of the State and the degree to which it helped defi ne the issue were unclear. Th us, as a consequence of this need for an adequate procedural remedy, ADPF 178 was transformed into ADIn (Ação Direita de Inconstitucionalidade – Direct Action of Unconstitutionality) and inscribed with the serial number 4277. To make the issue even more complex, even before the Attorney General of the Republic had fi led ADPF n. 178, the Governor of the State of Rio de Janeiro had already questioned the constitutionality of the lack (sic) of State protection for homosexual unions in ADPF n. 132. Th us, in May 2011, the FSC ruled on ADPF n. 132 and ADIn 4277. Th e Governor of the State of Rio de Janeiro fi led the former, and the Attorney General of the Republic fi led the latter. Th e actions were judged partially valid because the Court had unanimously recognized the State’s duty to protect homosexual unions. Th e Court interpreted art. 1723 of the Brazilian Civil Code in a manner that conformed with the Constitution. Th e arguments that comprised the discursive web present in the votes are, for the most part, sociological and/or moral. Th e majority of the ministers avoided confronting the principal legal question regarding the right of the judiciary to override a constitutionally derived power and thereby change the text of the Constitution. Rather, the judges merely asserted that the idea of judicial restraint in this case represented an “oblique vision” (sic) of the functions of the judiciary in modern law, as Judge Marco Aurelio stated in an aside during Judge Gilmar Mendes’s vote. During the voting process, the rapporteur wrote that “the sexual organ is a plus, a bonus, a gift of nature. It is not an onus, a burden, an encumbrance, much less a rebuke of the Gods.” Another judge wrote, “Homosexuality is a personality trait, not a belief, ideology or lifestyle choice.”10 From these examples, one can see that the judgment guiding the judges’ votes was determined more by the judges’ personal understanding of the subject rather than by their technical interpretations of the Constitution.

Ribas Vieira, et al. (2009) (ed), for research on this issue (Judicial Activism and the Federal Supreme Court: laboratory for analyzing the jurisprudence of the FSC, Publisher: Juruá). It is always helpful to remember that, although judicial activism is inextricably linked to an act of will by the adjudicatory body, the judicialization of political or social issues does not depend on this act but rather stems from the expansion of society, which becomes increasingly more complex, and from the crisis of democracy itself, which tends to produce a colossal number of regulations through various measures, such as laws, provisional measures, decrees, and ordinances. Th ese measures fi nd their point of capillarization in the judiciary and, principally, in issues whose demarcation involves acts of constitutional jurisdiction. 10 We pose the following question: if homosexuality was a belief, ideology or lifestyle choice, then should the protection of the State be rejected? Additionally, is the freedom of expression also a constitutional guarantee? Moreover, what is the scientifi c basis for the argument that homosexuality is a personality trait? In this instance, would the judiciary be correct to assert that psychologists have not yet reached a consensus with regard to this argument?

82 Moreover, we can clearly identify the activism of the court in this case. In one of the votes, a minister noted that the recognition of homosexual unions for the purpose of State protection can help to reduce discrimination and even curb violent practices stemming from homophobia. Certainly, reducing discrimination is a benefi cial objective, and any violent activities towards homosexuals should be repudiated. As Norbert Elias says, one must believe in the civilizing process. However, one wonders whether this type of opinion, which is pointedly political and lacking an empirical basis, could serve as the foundation for a judicial decision. Regardless, both the origin and the outcome of this case represent how the Brazilian legal fi eld discusses the interpretative activism of the Federal Supreme Court.

3. The reaction of the establishment to judicial activism, panprincipalism and jurisprudential fragmentation In countries such as Brazil, the so-called era of principles, which has given rise to constitutional texts with social-policy characteristics, developed while heavily dependent on traditional methods and their variations, which had been derived by theorists ranging from formalists to supporters of alternative approaches to rights (i.e., realists, Critical Legal Studies). On the one hand, doctrine and jurisprudence were still linked to traditional juridical dogma and continued to sustain normative practices, though these practitioners struggled greatly to understand the advent of a new theory of sources. On the other hand, sectors still engaged in implementing the Constitution began to bet on the judiciary as a driver of this process but did so without performing a corresponding refl ection on the conditions of possibility for this protagonism. Th at is, the lack of adequate theories on the demands of the Constitutions in countries such as Brazil permitted a strong judicial protagonism to form. As a consequence, even against a constitutional text uniquely rich in fundamental social rights, Brazilian interpreters are still trying to fi nd hidden values underneath this strained legal fabric. One of the foundations of judicial activism that has led to fragmentation in the judicial application of law was the phenomenon of panprincipalism. Under panprincipalism, the Court announced that the constitutional principles, the circumstances that facilitated their creation (sic), and, in the second phase of panprincipalism, all types of principles (sic), such as the paradigm of the democratic state of law, were the “philosopher’s stone of principled legitimacy” from which the Court could extract both the principles and the rationales needed to solve diffi cult cases or correct (sic) the uncertainties of language. Hundreds of principles overran the realm of interpretation and the application of the law. Th ese principles greatly undermined the autonomy of the law and the normative force of the Constitution itself. Some of these principles include the principle of proportionality, the principle of least astonishment, the principle of trust, the principle of care, the principle of fait accompli (res judicata), the principle of procedural economy and the principle of confi dence in the presiding judge. Are these really “legal principles” in a civil law country? Th is activism also shows that its ratio has a solipsistic origin, which becomes problematic because democracy and progress depend on the individual positions of judges and courts.

83 In any case, one can only speak of the problem of judicial activism before an eff ective constitutional jurisdiction is consecrated. One must consider that the constitutionalism that has emerged since the second post- war period is fundamentally post-positivist. All constitutional texts, which are now sets of principles, harbor this new perspective of the law. In this context, the search to preserve the normative force of the Constitution always runs the risk of being undermined by misconceptions founded on the alleged openness of the interpretation process because the surfeit of principles introduce the practical world that have been expunged by the various positivist positions to the law. At this point, the interpretation process transitions from a subject-object scheme to a subject-subject relationship on philosophical grounds. As pointed out by Dworkin in his debate with Hart, positivism is understood,11 to the limits of this text, by its primary characteristic, discretion, which can be found in the delegation of the power to solve diffi cult cases to the judges. Undoubtedly, positivism represents the relationship between discretionary behavior (delegated by Hart to the judge) and Kelsen’s decisionism. Th us, under a positivist scheme, the judge/interpreter will be given the discretionary power to choose a solution among several alternatives. Th e problem with this approach lies in knowing whether the alternatives are legitimate and whether the choice fi ts the circumstances. Moreover, one must consider the problems caused by this ability to delegate in cases that lie at the mercy of the judge’s discretionary interpretation. Th e context for all of the evidence was (and still is) the discussion about the conditions of the possibility of achieving a democracy. After all, if someone has to ultimately make a decision, then how can we avoid undermining the legislature, the alleged product of a representative democracy (i.e., a democratic production of the law), through the lack of jurisdictional legitimacy? From both an operational and doctrinal perspective, we can discern at least two types of manifestations for the paradigm of subjectivity, which involves the same questions regarding activism, decisionism and the admission of discretionary power. Th e fi rst addresses the problem more explicitly by assuming that the act of judging is an act of will, as stated by Kelsen in the eighth chapter of Pure Th eory of Law.12 Within this fi rst group, decisions that implicitly address the interpretation in a solipsistic manner

11 It should be noted that, for the purposes of this treatment in the text, we consider exegetical or legalistic positivism must be overcome. With Kelsen, there was a semantic twist on the interpretation of the law: an isomorphic identity between the words of the law and the factual reality no longer exists. For Kelsen’s clear- cut positivism, the interpretation of law is an act of will that slides inside an open structure metaphorically nominated as a frame of the norm (Pure Th eory of Law, Chapter VIII). At this point, we fi nd the space of the discretionary power of the interpreter who applies the norm. I point my weapons at the conformation of this dimension. 12 See how Kelsen’s question of positivism is not superseded in Brazil. On the FSC, one of the oldest ministers frequently argues that interpretation is an act of will, as stated by Kelsen in Chapter VIII of his Pure Th eory. In a recent pronouncement, the minister affi rmed that the decision is a split act in which the fi rst step represents the ideal (sic) construction of a solution for the case and that only in a second phase would he seek a justifi cation of the decision in the legal framework. In the words of Judge Marco Aurelio de Mello, “I idealize for a specifi c case, the fairest solution and then go to the normative framework. I go to the dogma to seek support. And as the interpretation is above all an act of will, in most cases, I fi nd the necessary support.” (Available at: http://www.stf.jus.br/portal/cms/verNoticiaDetalhe. asp?idConteudo=154675 accessed on: 06.07.2010; also see: http://www.conjur.com.br/2010-jul-06/ idealizo-solucao-justa-depois-vou-ar-normas-marco-aurelio. Accessed on 06/07/2010.

84 should be included. Th ese decisions are based on a set of methods that are sometimes incompatible or inconsistent with each other or even based on misreadings of authors such as Ronald Dworkin or Hans-Georg Gadamer, as the judges may confuse the “overriding” of methods with a “free allocation of meaning.” Th us, the defense of judicial activist positions, the growth of panprincipalism and jurisprudential fragmentation are all caused by the same core problem: the subtle reservation of the philosophical paradigm of consciousness in constructing the theories and doctrines of the law. Judges to justify his or her individual decisions invoke a primitive pragmatism. Th ese decisions do not lead to a consistent point that is capable of unifying disparate sentiments and accommodating them within a context of integrity. Th us, interpretive chaos comparable with Hobbes’s state of nature (i.e., a type of State with a hermeneutic nature) eventually occurs. Given this vexing, fragmented decision-making process, the legal establishment has responded by creating bureaucratic mechanisms that ostensibly off er an answer to this maze of decisions and, at the same time, lead to streamlined access to justice that, by virtue of the constitutional extension of demands, has also exhausted the system. Th us, the reform undertaken by Constitutional Amendment 45/2004, which became known as Judicial Reform, has established two mechanisms in the wake of the issues raised on this topic (i.e., the súmulas vinculantes [binding precedents]13 and the repercussão geral [general repercussion]).14 Th esetwo mechanisms are structural responses to a paradigmatic problem. Th us, there is no point in establishing precedents or other binding mechanisms, as is the case with general repercussion, if we do not address the problem that caused the current legal framework to become fragmented, relativistic and subjective. In other words, we must overcome the philosophy of consciousness and its resulting creation: the solipsistic subject (Selbstsüchtiger). Knowledge is more than a relationship that exists between a subject and an object. Rather, knowledge is an encounter that occurs from a history and a tradition. Overcoming these problems is a hermeneutic task.

13 Súmulas Vinculantes (Binding precedents) are statements created by the Supreme Court. In these statements, there are decisions iterated by the court on certain matters put on trial. Th e Brazilian system is peculiar in that these binding statements are binding on the Supreme Court itself, on lower courts and on administrative bodies (cf. Art. 103-A of the FC). What is puzzling is that the precedents are not exactly unprecedented because they are abstract, general statements that purport to resolve future cases, whereas the common law precedents are established from particular experiences to solve the primal case in dispute and only indirectly have repercussions on future decisions. However, common law precedents are also not law because they emanate from the highest body of the judicial branch. Th e binding precedents represented a longstanding vindication for a signifi cant portion of the Brazilian jurists. Th e justifi cations for adopting such mechanisms have always conformed to a pragmatic factor: an excessive number of repetitive demands whose cause is always charged to the constitution (Art. 5, paragraph XXXV), which signifi cantly expanded access to justice and the diffi culty of controlling the meanings of the judges’ interpretations. 14 In line with problems involving excess processes, the exhaustion of the system because of the proliferation of resources and the means to review decisions to be judged by the courts, the mechanism of Repercussão Geral (General Repercussion) appears to hinder the entry of new features that are to be analyzed and judged by the FSC. To this extent, the extraordinary resources bandied about will only be accepted if they can demonstrate, in the theory underlying the demand, the existence of the General Repercussion previously recognized by the court. Th erefore, the general repercussion is a fi lter designed to prevent any demand from reaching the Supreme Court of Brazil.

85 4. A hermeneutic response to activism I propose hermeneutics in a sense that is strongly anti-relativist and anti-discretionary. To use hermeneutics in this manner, one must discern the two factors that will allow us to overcome the paradigm of the philosophy of consciousness. My theory addresses two Copernican revolutions that occurred in the twentieth century and that radically changed the paths of law and philosophy. In the legal fi eld, the Copernican revolution of public law moved the legal system’s center of gravity. Instead of codes of private law, the constitutions now exercise the capillary function of the law. Th is radical change has also resulted in a methodological revolution: the traditional methods of private law, which were permeated by the philosophy of consciousness, were not capable of handling the new constitutional texts, which were designed to enforce a democratic order that, in addition to any solipsism, should lead to a public sphere and to an intersubjectivity that legitimatizes the acts of power by the State. Th us, another Copernican revolution has come into play. Th at is, we must take care of the so-called linguistic turn, which operates to redefi ne the role of language in the knowledge creation process and opens new avenues to discuss the method of law. In the wake of this transformation wrought by a linguistic turn (i.e., a linguistic- ontological turn),15 the hermeneutics of Hans-Georg Gadamer appeared. Th e Wahrheit und Methode clearly showed that the truth of the humanities (i.e., the sciences of the spirit) can be seen through art, history and language. Th us, Gadamer unleashed a sharp blow against the methodologism that predominated the epistemology of these sciences. Th is methodologism claimed that truth is ultimately opposed to the method. Rather than ensuring the objectivity of the interpretation process, the method represents the peak of subjectivity and eventually leads to relativism (e.g., in the legal fi eld, the method leads to the question of balancing). Th erefore, I posit that Gadamer’s objection to methodological relativism is echoed in Ronald Dworkin’s criticism to the discretionary power of judges. Th is criticism is implied in Dworkin’s debate with Herbert Hart. Th us, I present my proposal as an imbrication between Gadamer and Dworkin. Following Dworkin, who will speak of the only right answer, I propose that all citizens who live under the mantle of democratic government have a fundamental right to obtain a constitutionally appropriate response from the courts. However, my proposal does not establish a methodological procedure that ensures this response will occur. Rather, my proposal rejects any attempt to proceduralize the decision-making process. To discuss the conditions that comprise a constitutionally adequate response, we need to analyze these conditions under a decision, adjudication theory. Th is decision theory must successfully remove the misconceptions arising from the erroneous theoretical interpretations made by Brazilian constitutionalists and should be able to produce a rigorous process designed to justify the decisions that fl ow among the suspension of the interpreter’s pre-judgments (in the sense that hermeneutics should be understood in the following manner: they who decide on political issues have

15 In this sense, see STRECK, L. L.: Hermenêutica Jurídica e(m) Crise. 10th. ed. Porto Alegre, Livraria do Advogado, 2011.

86 the legal duty to clarify in advance the concepts under which they are operating at the time of the decision), the circumstances that comprise a specifi c case and the coherent reconstruction of the institutional history of the law, which includes the legislation, jurisprudence and doctrine of the law. As a result, we reject the procedures and methodologies outright. Th e only way to demonstrate the validity of this thesis is to reconstruct a specifi c case in which one can discern a constitutionally appropriate response. 4.1 Hermeneutics and principles that conform the application of law in a democratic state Th erefore, a new hermeneutic perspective has been forged within the Brazilian doctrine16 from two paradigmatic ruptures: the revolution of constitutionalism, which institutionalized a high degree of autonomy for the law, and the revolution caused by the linguistic-ontological-turn. On the one hand, the existence of the Constitution requires a defi nition of the substantial duties of public powers that goes beyond liberal constitutionalism and reduces the legislature’s degree of discretion as well as that of the judiciary in so-called hard cases. On the other hand, based on the advances in the theory of law, one can argue that a priori responses do not exist with regard to the meaning of a law that arises from procedures or methods of interpretation. In this sense, concepts that claim to encompass a priori all of the assumptions of the interpretation process do nothing more than reduce the interpretation to an analytical process. Th is process systematically and logically analyzes the language to discover the meaning of the diction and the statements. Th us, this process renders the language hostage to what Dworkin calls a semantic sting. We do not perceive (split) the texts in a distinct way and then attach meaning to them. Th at is, if the act of interpretation, which is always comprehensive/applicable, is singular, then the text (i.e., the Constitution) is not and does not appear to us to be naked, as if the text was at our disposal. However, this distinction disappears between structure and normative content. Th erefore, we cannot forget that the various forms of subjectivism have found the means to politically and ideologically control the interpretation process by showing the hermeneutic as the product of a reasoning that is performed in stages. Hence, we place great importance on the method, which has always had the function of isolating the norm (i.e., the meaning of the text) from its implementation. Moreover, we point out that, compared with our understanding of other phenomena, a juridical hermeneutic has one specifi c nature. Th at is, the hermeneutical process has an array of meaning, which is the product of a constitutional process that cannot be changed except through the same rules present in the originating process itself. Th is diff erence is critical. Th e Constitution is the content link that connects politics and law.

16 Th e proposals presented here can be reviewed in the following works: STRECK, L. L.: Verdade e Consenso. 4th ed. Rio de Janeiro: Lumen Juris, 2011; STRECK, L. L.: O que é isto – decido conforme minha consciência? Porto Alegre: Livraria do Advogado, 2011. In line with the projections made in this work, the following works are also important: RAMIRES, M.: Crítica à aplicação de precedentes no direito brasileiro. Porto Alegre: Livraria do Advogado, 2010; TOMAZ DE OLIVEIRA, R.: Decisão Judicial e o Conceito de Princípio: hermenêutica e (in)determinação do direito. Porto Alegre: Livraria do Advogado, 2008.

87 Based on this link, we can argue that the big paradigmatic jump at this stage of history lies in the fact that the law should serve as a guarantee of democracy. Th us, insofar as we agree that the Constitution has special features that arise from a profound paradigmatic shift, the role of hermeneutics is to fundamentally preserve the normative force of the Constitution and the degree of autonomy of the law against attempts to usurp it via the political process, which is understood as lato sensu. In this context, the substantial engineering is to preserve the normative force of the Constitution and to prevent politics from impacting the law. Th is (inter) mediation is the role played by the principles forged in the tradition of the democratic rule of law. Th us, the principles function as a Leitmotiv of the interpretive process, as if to show that each judicial statement has a motivation (Jede Aussage ist motiviert, as Gadamer would say). Principles are meant to show/denounce the break with the plenipotentiarity of the rules. In this sense, the law does not relieve the interpreter of any commitment with reality. For these reasons, it is essential to understand that constitutional methodology does not require canon, rules or meta-rules but rather a way to implement the Constitution (i.e., the manner by which the Constitution should be eff ectively interpreted). Th us, I proposed a minimum set of principles (i.e., hermeneutics) to be followed by the interpreter. Such principles, supported by the historicity of understanding, only become evident if they are placed in a context of refl ection that is radically practical and specifi c, as they represent a historical context of meanings that are shared by a particular political community. Th e interpretation of the law only has meaning if it entails a strict control of judicial decisions because interpretation is an issue that strikes at the heart of this new paradigm (i.e., democracy). Th ere seems to be no disagreement over this argument. 4.1.1 Principle one: the preservation of the autonomy of law In this new paradigm, the law should be understood in the context of increasing its autonomy, which is achieved through successful attempts to control arguments from politics. Th us, the Constitution is a manifestation of the (marked) degree of autonomy of the law, which should be understood in its autonomous dimension compared with the other dimensions (e.g., politics, economics and morality) that are interchangeable with the law. One must pay special attention here because morality has been used as a “gateway” by adjudicating discourses with corrective intentions for the law (i.e., by discourses that incorporate political and economic analysis of the law). Within this context, the resumption of morality by the law should be viewed from that which Habermas named co-originality. Th is empowerment takes place in the historical context of the twentieth century and reached its peak with the drafting of the constitutions in the second post-war period. 4.1.2 Principle two: hermeneutic control of constitutional interpretations to overcome discretionary power To preserve the level of autonomy achieved by the law, states must implement control mechanisms of judicial decisions, which are the repository for the tension pole shift

88 of the legislature toward the jurisdiction of the law. In other words, the autonomy of the law and its intimate connection with the democracy-constitutionalism dichotomy requires a hermeneutic refl ection on its nature based on constitutional theory. Moreover, it should be noted that defending the eff ective hermeneutic control of judicial decisions, regards to the fundamental duty of justifi cation and the autonomy of the law, does not indicate that propositional activity by the judiciary is never advisable or necessary (Constitutional Justice), especially if we consider that constitutionality must be controlled, even in the worst case, through public policy. However, the defense of the substantialist and specifi c positions regarding the use of the constitutional court imply inexorable improvements over the traditional self-restraining positions. Th ese positions cannot be confused with the decision-making processes and pragmatic attitudes in which the judiciary substitutes for the legislature such that judicial protagonism increases inordinately. We call this type of behavior activism. 4.1.3 Principle three: respect for the integrity and consistency of the law To prevent the self-fragmentation of pragmatist theories in general, respect for integrity and consistency includes principles that are sometimes confused with methods of interpretation and that are built over the years by constitutional theory. Examples of such principles include the principle of the unity of the Constitution, the principle of practical concordance between the norms and harmonization, the principle of effi cient integration or eff ective integration and even the principle of proportionality, despite its injudicious use. Its functionality depends on another constitutional guarantee: the need to justify decisions (art. 93, X, of the Constitution of the Republic of Brazil). In this context, the need to justify decisions constitutes a fundamental judicial duty and a fundamental right of citizens. Because integrity is inextricably linked to democracy, judges must build their arguments in a way that integrates the law. Th erefore, the interpretation process must have “articulate consistency”. Under this perspective, the law moves away from both the objectivist point of view, where “the text carries its own norm” (i.e., the law is the law unto itself), and the subjectivist-pragmatist point of view, where the norm can overturn the text. In other words, this respect for tradition inherent to integrity and consistency is substantially anti-relativist and should serve as a shield against subjectivism and objectivism. 4.1.4 Principle four: the fundamental duty to justify decisions If we agree that the hermeneutics being practiced in a democratic state of law cannot delegitimize a democratically produced judicial-constitutional text, then the state appears to hold its judges and courts strongly accountable. Th is circumstance was enshrined in the Constitution in art. 93, IX, which states that a judge must specify the conditions under which he understands the law. Th e duty to justify not only the fi nal decision but also all those decisions in the iter depends on the degree to which the parties participate in the decision-making process. Th e reasoning is linked to the control of decisions. Th e control over decisions depends on whether a paradigm shift occurs with regard to the role of the parties in the judicial-procedural relationship. Th erefore, the judicial-procedural protagonism

89 should be overturned by an adequate guarantee to the contrary and the previously outlined principles. Decisions with a cognitive character, took ex offi cio, or that still seek the real truth pretend to be immune to intersubjective control. For this reason, these decisions are incompatible with the paradigm of a democratic state. Th e Federal Supreme Court of Brazil (MS 24.268/04, Rep. Judge Gilmar Mendes) shows seasonal signs of incorporating this democratization process based on the jurisprudence of the Bundesverfassungsgericht, which represents the claim to legal protection in accordance with the guarantees enshrined in art. 5, LV, of the FC. Th is article contain the following rights: the right to information (Recht auf Information), which requires the judicial body to inform the other party of the acts practiced in the process and of the elements contained therein; the right to expression (Recht auf Äusserung), which ensures that the defendant has the opportunity to express him/herself orally or in writing with respect to the factual and legal elements of the process; and the right to see their arguments considered (Recht auf Berücksichtigung), which requires the judge to have the capacity, apprehension and relief of mind (Aufnahmefähigkeit und Aufnahmebereitschaft) to contemplate the arguments given by the defendant. Th e same ruling from the Brazilian Supreme Court incorporates the doctrine of Dürig/Assmann, which maintains that the duty to devote one’s attention to the rights of the parties is not just an obligation to know (Kenntnisnahmeplicht) but also an obligation to seriously and carefully consider the arguments presented in the court (Erwägungsplicht). 4.1.5 Principle five: the fundamental right to a constitutionally appropriate response Th is principle has a relationship of strict dependency to the fundamental duty to justify decisions and to the principles or sub-principles coined by the constitutionalist tradition that address the integrating eff ect, which is linked to the principle of unity in the Constitution, the practical compliance or harmonization, the maximum eff ectiveness and the interpretation according to the Constitution. As a founding principle of the jurisdiction-democracy relationships, the obligation to justify decisions, which is not a foundation for an apodictic character, aims to preserve the normative force of the Constitution and the deontological character of its principles. Th erefore, this principle represents a shield against delegitimizing interpretations of content that supports the normative domain of constitutional texts. Th is principle exists to replace any solipsistic pretense for specifi c historical conditions by always adhering to the principles of tradition, consistency and integrity, which may be capable of addressing the problems of hermeneutic interpretations that attempt to overcome the subject-object scheme. Th ere is a fundamental obligation to comply with the Constitution. Moreover, there is a fundamental right to an appropriate response to the Constitution (i.e., a constitutionally appropriate response or even a hermeneutically right response with regard to the Constitution). Before performing any further analysis, one should always scrutinize the compatibility of the judicial norm with the Constitution and the existence of any possible contradictions. One should always ask whether, in light of the principles and the constitutional precepts, the norm is applicable to the case. Moreover, one must determine in what sense the norm points to a precedent (Vor-verständnis), which is a prerequisite to understanding the phenomenon. To interpret, one must understand

90 (verstehen) what one wants to interpret. Th is precedent (ver-stehen) is the condition of possibility for the jurists: the Constitution. Th e fundamental right to a constitutionally appropriate response does not imply the systemic development of defi nitive responses because the pretense of seeking defi nitive answers is, in itself, anti-hermeneutic in the sense that doing so would freeze meanings. Th e fundamental right to an appropriate response to the Constitution is more than a settlement from a democratic perspective, such as equitable treatment and respect for the contradictory and democratic output of the legislature. Rather, this right is a philosophical product because it is a standard-bearer of a new paradigm that goes beyond the subject-object scheme prevalent in both classic and modern metaphysics.

91 7 Land grabbing as a human rights challenge

Martin Faix 1

1. Introduction One of the most signifi cant trends which emerged out of the 2008 worldwide food crisis,2 the worst fi nancial and economic crisis since the Great Depression of the 1930s, was the large-scale acquisition and leasing of land. Soon the “green rush” trend, denoted nowadays commonly as land grabbing, has been identifi ed as having two faces: foreign investments bear opportunities for improvement of agricultural structures, economic growth, and prosperity. However, they also have a dark side, as it was described for example by Nevem Mimica, the EU Commissioner in charge of International Cooperation and Development: “Millions of people around the globe depend on farmland, fi sheries and forests for their livelihoods. But the increasing pressures on our precious natural resources carry multiple social, economic and environmental threats. In their most serious expression, they can lead to confl ict, displacement and hunger. So it’s no exaggeration to state that the issues … are fundamental issues of human rights and relate to the future of humanity”.3 It is apparent that land grabbing raises several international law issues, most importantly issues in the fi eld of human rights. It is therefore the goal of this contribution to identify such legal implications. However, this will be done in a diff erent way than how the topic is usually looked at. Th is chapter shall also serve the goal of contributing to a very fresh debate refl ecting and recognizing the fact that land grabbing has become a truly global phenomenon. For the last two decades the discussion on the consequences of land grabbing focused on the context of developing countries, however, largely neglecting the fact that this phenomenon is also equally problematic in the developed world, e.g. within the European Union. Th e EU countries which acceded to the Union in 2004 provide an example that the “green rush” phenomenon, especially in the form of the so-

1 JUDr. Martin Faix, Ph.D., MJI, is a Senior Lecturer of International Law and a member of the Centre of Excellence – Research Centre for Human Rights (UNCE) at Charles University in Prague, and a Senior Lecturer of International Law at the Palacký University in Olomouc, Czech Republic. He serves also as Alternate Member for the Czech Republic in the Management Board of the EU’s Fundamental Rights Agency. Th is contribution was produced with the support of the Charles University Programme UNCE No. 204006. 2 For details on the crisis from the perspective of the United Nations see e.g.: United Nations. Th e Global Social Crises. Report on the World Social Situation 2011, ST/ESA/334, New York, June 2011, available online at: http://www.un.org/esa/socdev/rwss/docs/2011/rwss2011.pdf (accessed 14 January 2018). 3 Neven Mimica’s (EU Commissioner in charge of International Cooperation and Development) intervention in the opening remarks of the high-level event to commemorate the 5th anniversary of the VGGT – the Voluntary Guidelines for Responsible Governance of Tenure of Land, Fisheries and Forests. Th e event was jointly organized by the FAO and the EU on 10 October 2017 at the FAO Headquarters in Rome. Information available online at: https://europa.eu/capacity4dev/hunger-foodsecurity-nutrition/discussions/ high-level-event-commemorate-5th-anniversary-vggt-main-messages-rome (accessed 14 January 2018).

92 called “foreignization” of land, constitutes a signifi cant challenge, which these countries attempted to fi ght with statutory moratoriums on land sales. Consequently, the contribution will, in the fi rst step, draw basic contours of the recent discussion on land grabbing from the perspective of international law and especially international human rights law. In the second part, the contribution will provide examples of how the European Union contributes, or even fosters land grabbing, and explain why land grabbing constitutes a signifi cant problem within the EU. Since land grabbing is a complex phenomenon (of course not only in legal terms), it is not attempted to produce any surprising arguments or search for defi nite answers. Th e aim is rather to lift up the problem, highlight its relevance, frame it in international law, and look at its specifi c implications in Europe. As a preliminary remark, two methodological challenges in researching and writing on the topic of land grabbing from the international law perspective have to be noted, since they impact and delineate to a certain extent the scope of this contribution. For every academic contribution which attempts to put an issue into a legal perspective, a defi nition of the crucial term (here “land grabbing”) is the natural starting point. Th e term “land grabbing” may denote many diff erent situations and de lege lata there is a lack of clarity as to what “land grabbing” means. As it will be shown, the term is contested. Moreover, research and publications on land grabbing tend to focus on the so-called “foreignization” of land, i.e. acquisitions and leases of the land by foreign investors, however, largely neglecting an equally important form of land grabbing – land concentration – which is particularly problematic (though not exclusively) with regard to Central and Eastern European (CEE) Member States of the European Union. In order to assess the scale and the severity of the problem, relevant data should be presented, providing the necessary context for this contribution. However, providing accurate fi gures and gaining access to relevant data is often a harsh undertaking due to the lack of transparency and other data-gathering aspects concerning land deals and situations denoted as land grabbing. With regard to many (harshly impacted) regions, such as Africa, data on land acquisitions is scarce and often of limited reliability. Th is is not surprising taking into account that none of the subjects involved in the “green rush” (States, companies, etc.) are very keen to make the conditions of land deals public, may these be corrupt offi cials, States fearing sensitivity of the information, or companies concerned about commercial confi dentiality. Restrictions in the access to relevant data and the lack of accurate fi gures constitute a signifi cant challenge when researching the problem of land grabbing. Th is study however takes a more general approach and the examples and data used are suffi cient to provide a basic picture of why and how large- scale land acquisitions are problematic from the perspective of international law. 1.1 The Context Foreign investments in agricultural land are a phenomenon of the last decade, during which they signifi cantly increased, becoming at the same time truly global, entering new dimensions and aff ecting virtually everybody.4 Originally, this phenomenon was (and

4 Th ere is currently a signifi cant body of literature on land grabbing and legal aspects of this phenomenon. C.f. JACUR, Francesca Romanin, BONFANTI, Angelica, SEATZU, Francesco (eds.). Natural Resources

93 still is) associated with the Global South. Th e World Bank described in its report from 2011 the tremendous increase of demand and interest following the food crisis in 2008: “Compared to an average annual expansion of global agricultural land of less than 4 million hectares before 2008, approximately 56 million hectares worth of large-scale farmland deals were announced even before the end of 2009”.5 At the same time, it draws the attention to the fact that over 70 percent of this demand concerned African countries such as Ethiopia, Mozambique, or Sudan, which already some ten years ago transferred millions of hectares to investors.6 Another example of land grabbing and its impact provides the situation in Tanzania, which was so urgent that the European Parliament addressed the issue by a resolution.7 Th e situation concerned the plan of Tanzanian authorities, according to which some 1,500 square kilometres of Maasai land in the area of Western Serengeti were to be transferred to a private company from the United Arab Emirates. A part of the plan was the eviction of 40,000 Maasai pastoralists. Following international pressure, in November 2014 Tanzanian authorities announced their decision to drop the plan. Nevertheless, regardless of this announcement, thousands of Maasai were evicted from their lands. Reports indicate that more than 200 houses have been destroyed and livestock were confi scated by the Tanzanian authorities, causing more than 3,000 people to become homeless as a result.8

Grabbing: An International Law Perspective, Brill/Nijhoff , 2015; EDELMAN, Marc, OYA, Carlos, BORRAS, Saturnino M. (eds.), Global Land Grabs: History, Th eory and Method. Routledge, 2015; COTULA, Lorenzo. Human Rights, Natural Resource and Investment Law in a Globalised World: Shades of Grey in the Shadow of the Law, London and New York: Routledge, 2012; ZOOMERS, A., 2010. Globalisation and the foreignisation of space: seven processes driving the current global land grab. Journal of Peasant Studies, 37(2), pp. 429-447; VISSER, Oane, MAMONOVA, Natalia, SPOOR, Max. Oligarchs, megafarms and land reserves: understanding land grabbing in Russia, Journal of Peasant Studies, 2012, Vol. 39, Issue 3-4, pp. 899-931; De SCHUTTER, Olivier, Th e green rush: the race for farmland and the rights of land users. Louvain: A working paper published by the Catholic University of Louvain, Belgium, November 2010; Special Rapporteur on the right to food, Addendum to Report of the Special Rapporteur on the right to food, Olivier De Schutter: Large-scale Land Acquisitions and Leases: A Set of Minimum Principles and Measures to Address the Human Rights Challenge, delivered to the 13th Session of the Human Rights Council, U.N. Doc. A/ HRC/13/33/add.2 (28 December 2009) [hereinafter De Schutter, Large-scale Land Acquisitions and Leases], available at http://www.srfood.org/images/stories/pdf/offi cialreports/20100305_a-hrc-13-33-add2_land- principles_en.pdf; BORRAS, Saturnino, FRANCO, Jennifer C. From threat to opportunity? Problems with the idea of a ‘code of conduct’ for land grabbing. Yale Human Rights and Development Law Journal, 2010, Vol. 13, Issue 2, pp. 507-523, available online at: http://digitalcommons.law.yale.edu/cgi/viewcontent. cgi?article=1096&context=yhrdlj (accessed 2 February 2018). 5 DEININGER, Klaus, BEYERLEE, Derek, et al. Rising Global Interest in Farmland: Can it Yield Sustainable and Equitable Benefi ts?, Washington DC, World Bank, 2011, p. xiv, available online at: https://siteresources. worldbank.org/DEC/Resources/Rising-Global-Interest-in-Farmland.pdf, (accessed 6 February 2018) (hereinafter only: Th e World Bank, Rising Global Interest in Farmland). 6 Ibid. 7 Resolution of the European Parliament of 12 March 2015 on Tanzania, notably the issue of land grabbing (2015/2604(RSP), OJ C 316, 30 August 2016, p. 122-125. 8 Ibid., para. B and C.

94 Tanzania witnessed a signifi cant increase in foreign and domestic attempts to establish large-scale biofuel plantations in the country between 2005 and 2008, when around 640,000 hectares of land were allocated to investors, thus depriving peasants and rural households of their lands and livelihoods and increasing their food insecurity. According to the African Development Bank, 75% of the population of Tanzania are small- scale farmers; whereas pastoralists represent some 10% of the population of Tanzania (including the Maasai), but continue to face the massive loss of their land arising from the sale of land without the adequate knowledge of the legal and practical consequences, corrupt and illegal allocation of land to foreigners, and the classifi cation of land as trust land, reserves or national parks by the authorities.9 Th e above-mentioned cases are just examples of a surge following the food crisis in 2008.10 It has to be noted however that this is just one momentum, following earlier waves of land sales, fi rst of which can be tracked back to the colonial times (especially in Africa). 1.2 Definition Land grabbing is (similarly to alternative formulations, e.g. “large-scale land acquisitions”, “large-scale land deals”, “green rush”) a term used in the media and literature to describe an empirically proven global trend of land acquisition. It is a phenomenon, which has a complex and multi-dimensional interface and is rapidly evolving. Th is makes land grabbing a contested term. Land deals are a very normal part of everyday life, so not every such deal of course qualifi es as “land grabbing”. Hence identifi cation of the key aspects or parameters, serving for the determination of a “land grab deal”, may not be easy. Whether a deal can be denoted as “land grabbing” certainly depends on the specifi c (socioeconomic, ecological, legal and other) circumstances. A consensus on a defi nition has not been reached yet. Nevertheless, this contribution will make use of one of the most notable attempts in this regard – the defi nition developed by the International Land Coalition (ILC),11 a global alliance of civil society and farmers’ organizations, United Nation’s agencies, NGOs, and research institutes. Th e ILC, in its Tirana Declaration (2011) defi ned land grabbing as acquisitions or concessions that are one or more of the following: clear violation of human rights; displacement of aff ected local communities is carried out without free, prior, and informed consent; acquisitions or concessions not based on transparent contracts; are in disregard of social, economic, and environmental impacts, including the way they are gendered.12

9 Ibid., para. J. 10 For more detailed assessment see e.g.: COTULA, Lorenzo, VERMEULEN, Sonja, LEONARD, Rebeca, KEELEY, James. Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa, Rome/London, FAO, IFAD, IIED, 2009, available online at: http://www.iied.org/ pubs/display.php?o=12561IIED (accessed 7 February 2018); Th e World Bank, Rising Global Interest in Farmland, op. cit. 5. 11 For more information on the International Land Coalition, see http://www.landcoalition.org/en/about- ilc (accessed 2 February 2018). 12 International Land Coalition, Tirana Declaration (para. 4). Th e Declaration was adopted by the International Land Coalition’s Assembly of Members on 27 May 2011. Th e Declaration is available online

95 2. Land grabbing and international (human rights) law Land grabbing in general has a negative connotation, but it is a phenomenon which can certainly be described as Janus faced. Th e “devil” face of land grabbing is more a focus of public discourse, since the negative consequences include e.g. forced displacement and marginalisation of small-scale local farmers, and the loss of local decision-making power over vast areas of agricultural sector and its earnings. Moreover, many argue that the contribution towards the development of the recipient country is low. However, some emphasize the positive role and contribution of large-scale land investments to the modernisation of agriculture, raising productivity, help to countries suff ering from under-investment, and in general their contribution to economic growth. Regardless the way one may interpret politically large-scale land acquisitions or concessions, there is no doubt that the green rush happens in the realm of international law and calls for an analysis of the role of international law in this regard. 2.1 What is the role for International Law? International law has been identifi ed as playing a role in two contradictory ways, as explained accurately by von Bernstorff , who points out the paradoxical role of international law, which “is on one hand complicit in the structures that make the global land grab possible, and on the other hand it is a language used to challenge and contest the negative consequences … of land grabbing”.13 Indeed, international law facilitates land grabbing. Th is is not a surprise, since international law is a tool serving the needs of the international community and providing legal framework of the co-existence of its members. As such, it is also naturally used for making the large-scale sale and lease of land possible. Already the very cornerstones of the international law system can be seen as facilitating land grabbing, most notably the sovereignty (and the connected notion of jurisdiction), denoting the ultimate authority of the State over the territory and the people living on it. It is thus the State, which has the power to make the ultimate decision on the sale or lease of land. One has to remember that the property relations in many countries are diff erent from property relations in Western States. Formalized property tenure or possession over the lands for example in Africa, where most of the land used for agriculture is formally owned by the State, is much more limited. A similar situation was in Central and Eastern European States before the fall of the Iron Curtain, i.e. before 1989, when most of the land used for agriculture was formally or eff ectively in the hands of the State.14 Von Bernstorff however rightly points out also the emancipatory and dynamic dimension of sovereignty, which he understands as aspiring to a collective right “to end external

at: http://www.landcoalition.org/sites/default/fi les/documents/resources/tirana_declaration_ilc_2011_eng. pdf (accessed 2 February 2018). 13 BERNSTORFF, Jochen von. Th e Global “Land Grab”, Sovereignty and Human Rights. ESIL Refl ections, Vol. 2, Issue 9, 18 October 2013, available online at: http://www.esil-sedi.eu/node/426 (accessed 2 February 2018). 14 Privately owned land used for agriculture was collectivised after 1948, i.e. transferred step by step to State- run farms, the model of which corresponds with the Soviet “kolhoz” (in Czech “Jednotné Zemědělské Družstvo”, in German “Landwirtschaftliche Produktionsgenossenschaft”).

96 domination and to establish self-rule”, to be understood under current international law (also) as “food sovereignty”.15 Nevertheless, it has to be noted that historically such a right was directed against colonial powers; nowadays land grabbing involves a variety of actors (States, international institutions, and foreign public or private investors) with their complex interactions.16 Moreover, land grabbing currently involves almost inevitably the own State as one of the main actors. Th us, whereas the historical sovereignty claims to end external domination and establish self-rule was directed against colonial powers, current involvement of the own State in land deals puts such understanding of (the emancipatory dimension of) sovereignty in question. 2.2 Land grabbing and Human Rights Th e negative eff ects of land grabbing are particularly visible when trying to phrase this phenomenon in human rights terms. With the rising private and public-sector interest in the agriculture of developing countries and the following “green rush” it soon became clear that fundamental human rights were at stake. International community, advocacy groups, and a growing body of scholarly writings soon recognized this tension and the need to apply human rights as the normative standards for the evaluation of the processes and consequences of large-scale land deals.17 Among the notable actions taken were the Report 18 of Olivier de Schutter, the then UN Special Rapporteur on the Right to Food,19 who stated very clearly in his recommendations that “Agreements to lease or cede large areas of land should under no circumstance be allowed to trump the human rights obligations of the States concerned.”20 In 2012, a global consensus on internationally accepted principles and standards for responsible practices in terms of governance of tenure was reached in the form of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT), which were endorsed by the Committee on World Food Security on 11 May 2012. Th e Guidelines, which contain principles for States and non-state actors, including business enterprises, can be used by the stakeholders when developing strategies, policies, legislation, programmes, and activities to improve and promote responsible (land-based) agricultural investments. It has to be noted that the “voluntary”, i.e. legally non-binding, nature of the Guidelines does not necessarily mean that States and other stakeholders can deviate from the principles anchored therein. Th e Guidelines constitute an authoritative interpretation, clarifi cation, and application of human rights obligations in the context of the right to adequate food and connected human rights.

15 Ibid., pp. 4-5. 16 Ibid., p. 5. 17 WISBORG, Paul. Human Rights Against Land Grabbing? A Refl ection on Norms, Policies, and Power. Journal of Agricultural and Environmental Ethics. December 2013, Vol. 26, Issue 6, pp. 1199-1222. 18 De SCHUTTER, Large-scale Land Acquisitions and Leases, op. cit. 4. 19 Th e decision to appoint a UN Special Rapporteur on the Right to Food was made at the fi fty-sixth session of the Commission on Human Rights by the resolution 2000/10 of 17 April 2000 with the aim to respond fully to the necessity for an integrated and coordinated approach in the promotion and protection of the right to food. 20 De SCHUTTER, Large-scale Land Acquisitions and Leases, op. cit. 4, p. 13.

97 In the following section a brief overview of relevant human rights at stake shall be given, even though space constrains prevent a more detailed discussion of the multi- dimensional and complex relationship between human rights and land grabbing. ICCPR and ICESCR (the two principal human rights covenants of 1966) contain, as is well known, common Article 1, which enshrines the collective right to self- determination and in its para. 2 the right of all peoples “for their own ends, freely dispose of their natural wealth and resources”. With regard to land grabbing, in particular the last sentence of Art. 1 para. 2 is of importance, stipulating that “In no case may a people be deprived of its own means of subsistence.” Th e issue of the loss of access to land and resources has indeed become one of the focuses of public discourse on human rights impacts of land grabbing.21 Even though international law de lege lata does not recognize a right to land as such, land rights are closely interrelated with the realisation of other human rights, such as the right to property;22 right to adequate food, where the food security of people depends on land and natural resources;23 right to adequate housing, being part (similarly to the right to adequate food) of the right to an adequate standard of living;24 and rights of minorities and indigenous people.25 Th ere is another group of human rights, which do not constitute the central part of the land grabbing discourse but are inherent in this issue and thus also at stake. One part of them can be identifi ed on the basis of the fact that large land deals can lead e.g. to an increased use of agrochemicals, higher demand for water or its contamination, thus generally having an impact on the environment. Consequently, relevant enjoyment of relevant human rights may be in danger, such as of the right to health,26 the right to

21 European Union, Policy Department DG External Policies. Addressing the human rights impacts of “land grabbing”, December 2014, p. 16. Th e report provides further information and links to report of land dispossession (p. 16) (hereinafter: EU, Addressing the human rights impacts of “land grabbing”). 22 Article 17 UDHR. 23 See especially De Schutter’s report, which addresses specifi cally this issue, i.e. the relationship between the right to food and land access. De Schutter points out that every State is obliged to “refrain from infringing on individuals’ and groups’ ability to feed themselves where such an ability exists (respect), and to prevent others - in particular private actors such as fi rms - from encroaching on that ability (protect). Finally, the state is called upon to actively strengthen individuals’ ability to feed themselves (fulfi l).” (De Schutter, Large-scale Land Acquisitions and Leases, op. cit. 4, p. 2). 24 Article 25 UDHR; Article 11 ICESCR. Cf. also General Comment No. 7, “Th e Right to Adequate Housing (Article 11 of the Covenant): Forced Evictions”, Committee on Economic, Social and Cultural Rights, 20 May 1997. According to the General Comment, forced evictions constitute prima facie violations of the right to housing. 25 Access to land for indigenous people enjoys specifi c forms of protection according to the ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples. Article 10 of the latter instrument enshrines the right not to be forcibly removed from one’s lands or territories and stipulates as the precondition for relocation the free, prior, and informed consent of the indigenous people after agreement on just and fair compensation as well as, where possible, the option of return. Th e UN Declaration on the Rights of Indigenous Peoples contains a similar rule: any change in land use should take place only with the free, prior, and informed consent of the local communities concerned. States are also obliged to provide eff ective mechanisms for prevention of, and redress for, any action, which has the aim or eff ect of dispossessing indigenous peoples of their lands, territories or resources. 26 Article 12 ICESCR.

98 a healthy environment,27 or the right to respect for private and family life.28 It has also been argued that (agricultural sector) land grabbing raises specifi c concerns with regard to labour rights and political rights, including rights of freedom of expression, assembly and association.29

3. Land grabbing and the EU It is no doubt that land grabbing is a global phenomenon. As it was argued already in the introduction, it is an established fact that nowadays even Europe and the European Union itself are exposed to land grabbing. Th is has been recognized by the EU itself30, as well as in scholar writings and studies31. Nevertheless, the EU can be considered not only a “victim” of land grabbing, but also its driver and facilitator. 3.1 EU as a driver of land grabbing outside the EU borders Th e European Union is involved in global land grabbing in two main ways. First, through involvement of EU based corporations and capital in land grabbing outside of the EU32, and second, through the shaping of various EU policies, which facilitate or foster large land deals. An example of the latter, which will highlight some of the challenges, is the experience with the trade preferences of the EU (the so-called EU General System of Preferences, including the “Everything But Arms Initiative” [EBA Initiative]33), which were shaped as tools to promote the development of poorer countries. Th e European Commission may suspend the preferences among others in cases of serious and systematic violations of internationally recognized human rights.34 Such a case was reported to the European

27 Article 24 ACHPR. 28 Article 8 ECHR. According to the jurisprudence of the ECtHR, a government’s failure to manage the pollution risks related to economic activities, or to provide information about those rights, can lead to a violation of Art. 8 ECHR (see e.g. ECtHR, López Ostra v. Spain, Judgment, 9 December 1994, Application No. 16798/90; Guerra and Others v. Italy, Judgment, 19 February 1998, Application No. 116/1996/735/932). 29 European Union, Addressing the human rights impacts of “land grabbing”, p. 20-22. 30 European Parliament, Extent of Farmland Grabbing in the EU (study), May 2015, available online at: http://www.europarl.europa.eu/RegData/etudes/STUD/2015/540369/IPOL_STU(2015)540369_ EN.pdf (accessed 2 February 2018). 31 C.f. BORRAS, Saturnino M., FRANCO, Jennifer C. (eds.), Land concentration, land grabbing and people’s struggles in Europe, 2013, Transnational Institute for the European Coordination Via Campesina, available online: https://www.tni.org/en/publication/land-concentration-land-grabbing-and-peoples-struggles-in- europe (accessed 2 February 2018). 32 See especially the study for the European Parliament entitled “Land Grabbing and Human Rights: Th e Involvement of European Corporate and Financial Entities in Land Grabbing outside the European Union” (European Union, Land Grabbing and Human Rights: Th e Involvement of European Corporate and Financial Entities in Land Grabbing outside the European Union. 10 May 2016, available online at: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578007/EXPO_STU(2016)578007_ EN.pdf, (accessed 2 February 2018)). 33 Th is initiative allows duty and quota free imports from the least developed countries, with the only exception of armaments. 34 Article 19 of EU Regulation No. 978 of 2012.

99 Commission with regard to the production of sugar in Cambodia, where the EBA Initiative was a key factor in grabbing land used for the production of sugar for export to the EU under the EBA Initiative. Besides international and Cambodian NGOs, the European Parliament also called on the EU Commission to investigate this situation and to suspend the EBA preferences if human rights violations were identifi ed.35 An investigation was undertaken with regard to alleged human rights violations for example in Myanmar in 1997, Belarus in 2007 or in Sri Lanka in 2010.36 Another example of EU tools and policies that allow us to denote the EU as fostering land grabbing is renewable energy legislation. Pursuant to the EU’s Renewable Energy Directive (RED) 37 each Member State is to ensure that the share of energy from renewable sources in all forms of transport in 2020 is at least 10% of the fi nal consumption of energy in transport in that Member State. Th is has created a strong incentive for land grabbing, which will enable large-scale production of agrofuels (crops such as palm oil, sugarcane, corn, and jatropha) grown as a source of liquid fuel. It may be noted that the EU recognized the problem and amended the RED through the EU Directive to reduce indirect land use change for biofuels and bioliquids,38 stating that: “Good governance and a rights-based approach, encompassing all human rights … are essential, and coherence between diff erent policies should be pursued in cases of negative eff ects on food and nutrition security. In this context, the governance and security of land tenure and land-use rights are of particular importance.”39 Both examples clearly show that trade policies, but e.g. also free trade agreements, can generate strong incentives for land grabbing. 3.2 Land grabbing within the EU For a long time, the phenomenon of land grabbing has been believed to be an issue of the Global South, but Europe itself has been a target: Western European companies have been accumulating land especially in Eastern Europe; within its borders the EU is facing the problem of signifi cant land and wealth concentration supported by the

35 Resolution of the European Parliament of 26 October 2012 on the situation in Cambodia (2012/2844(RSP)), available online at: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/dase/dv/1129_13_ epres_cambodia_10oct12_/1129_13_epres_cambodia_10oct12_en.pdf, para. 6 (accessed 5 February 2018). On the human rights situation in Cambodia see the Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P. Subedi, “A Human Rights Analysis of Economic and Other Land Concessions in Cambodia”, 24 September 2012, UN Doc A/HRC/21/63/Add.1, esp. para. 129. 36 EU, Addressing the human rights impacts of “land grabbing”, op. cit. 22, p. 28. 37 Article 3(4) of the Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable energy sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ L 140, 5 June 2009, p. 16). 38 Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive 2009/28/EC on the promotion of the use of energy from renewable sources (Directive to reduce indirect land use change for biofuels and bioliquids). 39 Ibid., para. 26. Th e Directive to reduce indirect land use change for biofuels and bioliquids furthermore recognized that: “Member States should respect the Principles for Responsible Investment in Agriculture and Food Systems, approved by the Food and Agricultural Organisation Committee on World Food Security (CFS) in October 2014. Member States are also encouraged to support the implementation of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, adopted by the CFS in October 2013.” (Ibid.).

100 Common Agricultural Policy. In 2013 large farms (agricultural holdings of 100 ha and more) made up only 3,1% of all farms in the EU, but they controlled 52,2% of farmland in Europe; by contrast, 76,2% of farms had the use of only 11,2% of the agricultural land.40 Both, “foreignization” of the land, as well as generic land concentration, have been particularly problematic in Central and Eastern European (CEE) Member States, such as Hungary, the Czech Republic, Slovakia, or Poland, but also Romania and Bulgaria are currently hotspots. Accession to the EU resulted in fl ooding their markets with subsidized agricultural products, which fi nally brought bankruptcy to many farmers in the new member states, leading to sales of farms and large parts of the land for low prices. Aware of the need to protect the agricultural structure from the consequences resulting from diff erences in land prices and other factors when compared to the rest of the European Union, the CEE States had already requested during the course of accession negotiations to maintain or to introduce moratoriums on acquisition of agricultural land (or forests) by foreigners. Consequently, a transitional period of 7 years was granted to the Czech Republic, Estonia, Hungary, Latvia, Lithuania, and Slovakia; and 12 years to Poland. However, restrictions on land sales failed to deliver. An example of such a failure in Hungary was the practice called “pocket-contracts”, denoting sales of land without a specifi ed date of purchase, when the contract is held secret (in the pocket) until the moment when the restrictions on land sales are lifted. Understandably, such contracts could not be registered in the land register, thus the Hungarian seller remained offi cially the owner, while the land was in practice owned by a foreign person, circumventing in this way legal restrictions. Despite the fact that Hungarian legislation criminalized such practice by the new Criminal Code of 2012, “pocket-contracts” continue to constitute a problem, referring nowadays to contracts that in general aim to circumvent legal restrictions on land acquisitions.41 Another typical way of circumventing the moratoriums included the use of substitute or “dummy” buyers. According to local sources in West Pomorania, Poland, some 200,000 ha of land in the region has been acquired by foreign companies by using “dummy” buyers.42

40 European Parliament resolution of 27 April 2017 on the state of play of farmland concentration in the EU: how to facilitate the access to land for farmers (2016/2141(INI)), p. 1; see also study entitled ‘Extent of Farmland Grabbing in the EU’ by the European Parliament’s Committee on Agriculture and Rural Development, p. 24 (PE 540.369). 41 KAY, Silvia. Land Grabbing and Land Concentration in Europe: A Research Brief. Amsterdam: Transnational Institute for HOTL, December 2016, p. 8, available online at: https://www.tni.org/fi les/publication- downloads/landgrabbingeurope_a5-2.pdf (accessed 8 February 2018); see also: CIAIAN, Pavel, KANCS, D´Artis, SWINNEN, Jo at al. Sales Market Regulations for Agricultural Land in the EU Member States and Candidate Countries, Factor Markets Working Paper No. 14, February 2012, Brussels, CEPS, available online at: https://www.ceps.eu/system/fi les/book/2012/02/FM_WP14%20CEPS%20on%20 Sales%20Market%20Regulations_D15.1_Final.pdf; FIDRICH, Robert. Th e Return of the White Horse: Land Grabbing in Hungary, in: Land Concentration, Land Grabbing and People’s Struggles in Europe, edited by Jennifer FRANCO and Saturnino BORRAS, Amsterdam, Transnational Institute, 24 June 2013, pp. 128-145, available online at: https://www.tni.org/fi les/download/land_in_europe- jun2013.pdf (accessed 8 February 2018). 42 DOUWE VAN DER PLOEG, Jan, FRANCO, Jennifer C., BORRAS, Saturnino M. Land concentration and land grabbing in Europe: a preliminary analysis, Canadian Journal of Development Studies / Revue canadienne d’études du développement, Vol. 36, Issue 2, pp. 147-162 (153).

101 How problematic the “foreignization” of land is can be illustrated in the fact that some of the EU Member States (e.g. Slovakia 43 ) retained legislation restricting sales of lands to foreigners despite the end of the period agreed to with the EU and despite the fact that such moratoriums run counter to the free movement of capital as one of fundamental freedoms, which the EU is based on.

4. Conclusions Large-scale acquisitions and leases of land constitute a complex and multi-faceted phenomenon, which the international community will continue to face simply because its key driver is the growing demand for agricultural commodities. Th us, there is no doubt that land grabbing requires coordinated response of all actors involved and requires action at both the international community level as well as the national level. International community is thus called to action to share best practices and create common standards. Th is is particularly important since those facing the negative consequences of land grabbing are usually in a considerably weaker position to their opponents. Finally, what is at stake are human rights, and human rights are a vitally important common value. States are obliged to respect, protect, and fulfi l human rights at stake (right to food, which includes the extra-territorial obligation of states to prevent anybody under their jurisdiction from undermining the applicable human rights, such as the right to adequate food; right to property; right to adequate housing; right to an adequate standard of living; and rights of minorities and indigenous people). As De Schutter points out, “these principles are not optional; they follow from existing human rights norms”.44 Not only states, but international organisations also play a crucial role. As it has been shown in the example of the EU, they can equally be the drivers of land grabbing, either through the involvement of EU based corporations and capital in land grabbing outside of the EU, or through the shaping of the various EU policies. Th e EU (or more precisely the European citizens and small farmers) is also a “victim” of land grabbing, since foreignization of land and land concentration constitute a problem, the severity of which has been already recognized by EU institutions. Th eir human rights dimension is inherent and thus the solution must refl ect this fact. Taking this as a starting point it becomes apparent that land grabbing is another example of a challenge that the international community is facing today, the challenge of how to ensure eff ective implementation of human rights.

43 Th e end of the moratorium period was scheduled for 30 May 2014. Slovakia however adopted new legislation on 2014 (zákon č. 140/2014 Z.z. o nadobúdaní vlastníctva poľnohospodárskeho pozemku), keeping the limitations on acquisitions of land by foreigners. 44 De SCHUTTER, Large-scale Land Acquisitions and Leases, op. cit. 4, para. 5.

102 8 Entrepreneurial Adverse Impacts on Human Right to Social Security: A discussion upon concerns set forth in sensitive international standards

Carlos Luiz Strapazzon 1

1. Introduction In Brazil the human right to social security is virtually invisible. Whenever it shows up it comes with the restrict connotation of social insurance. Th e imprecise use of the Portuguese term “seguridade social” (borrowed from Spanish = seguridad) actually created enormous confusion upon the eff ective existence of human or fundamental constitutional right to social security in Brazilian legal order. It turns out that the human right to social security exist. It is formally enshrined at Article 25 of the Universal Declaration of Human Rights, as well as at Article 9 of the International Covenant on Economic, Social and Cultural Rights – ICESCR. Social security law schemes are many. And classifi cation criteria might also vary considerably. If Esping-Andersen’s theoretical approach (2012) were to be adopted, then diff erences arise from the way social security is arranged between three actors: state, family and market. According to this perspective, there are three ideal types of social security arrangements: a liberal, a conservative-bureaucratic and a social-democratic. By contrast, if Richard Titmuss’ criteria were to be (1958) adopted, so three other models might appear: the residual, in which the State acts in case of protection failure performed by families or by market mechanisms; the meritocratic and the institutional redistributivist. Whatever one considers social security is about, all theoretical models assume that some portion of private institutions might coexist with public ones. Hence, if some schemes are more liberal than others, meaning that some schemes may be more market- oriented while some are more state-oriented, in reality all of them admit market-and- family oriented rules 2. Th at is to say, mixed models with signifi cant dependency of private, not with purely market mechanisms though. As a consequence, it is expected some of so called mixed models may be more redistributive and egalitarian than others.

1 Professor of Constitutional Law. Professor of the Fundamental Rights Program at the Western University of Santa Catarina State School of Law, UNOESC, in Chapecó-SC State, Brazil. Editor-in-Chief of the EJJL (2011-2016). I am also Professor of Constitutional Law at University Positivo School of Law in Curitiba, Paraná State, Brazil, Contact: [email protected]. 2 STRAPAZZON, C. L.: O Direito Humano a Segurança Social: o Regime Constitucional do Brasil Comparado com 20 modelos estrangeiros. Revistas Magister de Direito Previdenciário/Revista IBDP, 34, 2016.

103 Market mechanisms play a crucial role in all of social security models, however, in underdeveloped and developing States it is of utmost signifi cance. In consolidated democracies, social security rights fl ourish with supra partisan political support: social coalition yields strong social security schemes. As a consequence, most successful experiences with this right prove a high level of interdependency between social security arrangements along with democracy, policies of economic growth and employment. Accordingly, social security scheme may very well either become a political instrument of poverty reduction, gender equality, either it can perform many other economically relevant roles, such as the protection of household income, job creation or increasing or productivity. In this chapter the social right is admitted as fundamental human right. Considering the existence of such right, the paper seeks at highlighting duties with social security human right protection through a market (or private) ground. Several guidelines established by international instruments of human rights pointed out ways for companies and corporations to establish business approach for the protection of human rights. We focus, here, at three of them: General Comment n. 24 (Committee of ESC, UN, 2017), Tripartite Declaration of Principles concerning Multinational Enterprises (ILO, 2017) and the Guiding Principles on Business and Human Rights (ONU,2011).

2. Business are bound to protect, respect and remedy adverse impacts on human right to social security Insofar the Universal Declaration of Human Rights (UDHR) is carefully regarded one might realize how signifi cant are the following two provisions on the human right to social security to the rest thereof. Art. 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national eff ort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Art. 25 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. To some extent, considering all previous normative developments in the fi eld, it is fair to admit these articles, in spite of their binding eff ect, as truly declaratory. Th at is so because by the time the UDHR was issued, three other instruments had already been released with the view to recognize social security as a real universal right of all persons.

104 Although the fi rst instrument is not to be assumed as a genuine convention or rule, it had an overarching impact on the UN Charter as well as on future human rights instruments 3. Th e “Atlantic Charter” stemmed from 1941, issued as a declaration of intentions during the World War II. Altogether, it enunciated eight political principles as well as the so-called “four freedoms”. As far as social security is concerned, the fi fth principle is pivotal to the meaning of “freedom from want”. Th erefore, such kind of acknowledgement also provides an accurate picture to the centrality of social security as a main dimension of the meaning of freedom within a new era of capitalism jointly with universal human rights. Nonetheless, without a thoughtful contextualization such document sounds like a declaration straightly concerned with the destiny of only two nations. One particular passage might be highlighted so as to clarify this point. As long as Th e President of the United States and the Prime Minister, Mr. Churchill, representing H. M. Government in the United Kingdom, being met together, deem it right to make known certain common principles in the national policies of their respective countries… it appears to be obvious that the agreement do not encompass a universal envision. Even though such sort of approach to the introductory message of the Charter is likely to indicate that the Charter underpins principles of hope only for the future of United States alongside with Great Britain, as a matter of fact this is not the case. Such “Charter” had far wider political ambitions. In order to be eff ective, the agreement was to be adopted by those two countries’ allies throughout the world. Had them fail with that goal, the agreement would not have been adopted as a guide for basic rights to all the world 4. Th at is the reason why the above mentioned fi fth principle actually might be assumed as an ethical pillar that, into some extent, helped to pave the way to the promotion of social security, later on, to the status of a universal right within the UDHR. From that point onwards, it was all but uncontroversial that social security was to be admitted as a crucial mechanism to lead any democratic society to a new standard of living grounded on freedom of fear and necessity5. Whereas the Charter sets out particular worries with income security, mechanisms of social income security resounded as reasonable measures to be adopted jointly with rules on better conditions of work. Now, let see how this issue is concerned with labour market and labour law. Two international documents were issued soon after three years the so-called “Atlantic Charter” was published. Th ese two documents were elaborated by the International Labour Organization (ILO). Th e fi rst is the Recommendation 67, the second is the Recommendation 69, both from the same year of 1944. Th e fi rst one – still in force – seeks to recognize the human right to income security, through compulsory social insurance as well as via social assistance mechanisms for all

3 HITCHCOCK, W. I. Th e Rise and Fall of Human Rights: Searching for a Narrative from the Cold War to the 9/11. Human Rights Quarterly, 37, 2015, p. 88. 4 MOHNEY, S. Th e Great Power Origins of Human Rights. Michigan Journal of International Law, 35, 2014, p. 838. 5 Th is is the emblematic statement enshrined at the sixth principle.

105 those who unable to pay thereof. Th e second Recommendation, also in force, deals with the right to medical care, either through health insurance mechanisms, social assistance or public health policies. Both recommendations explicitly refer to Atlantic Charter fi fth principle as a ground. International Labour Conference has recommended the Members of the Organisation to apply progressively the general guiding principles, as rapidly as national conditions allow, in developing their income security schemes with the aim of implementing the fi fth principle of the Atlantic Charter, and to report to the International Labour Offi ce from time to time as requested by the Governing Body, concerning the measures taken to give eff ect to the said general guiding principles. It is noteworthy that for both instruments, universal coverage of income protection and health protection must be provided by states along with active participation of employers. At this point one might meet an inaugural and most signifi cant international document which engage enterprises to the aim of ensuring social security. ILO has issued the prominent instrument in the fi eld of social security, Convention n. 102 (1952), which deals with minimum standards of social security and establishes basic international standards for the organization of social security systems by the States. Convention n. 102 was adopted at the 35th session of the International Labor Conference, held in Geneva in 1952 and entered into force internationally on April 27, 1955. In Brazil, it was approved by Legislative Decree n. 269 of 19 September 2008 of the National Congress and ratifi ed on June 15, 2009. Although it was duly deposited with the ILO secretariat, until Feb 2018 this Convention was not sanctioned by a Presidential Decree, which is an essential formal procedure regarding Brazilian legal order to enforce thereof. Accordingly, and in spite of all appearances, it is fair to state that due to an internal misguide, Brazil has not fully adhered to this Convention so far. Th erefore, the information displayed on the ILO homepage according to which such standard is in force in Brazil is incorrect. Th e text of Convention n. 102 (ILO) deals with general provisions as well as details of the object of social security law, minimum organization and procedures that the signatory States must implement. Th e above-mentioned Convention is very relevant because it contains the minimum content of the scope of protection of this right. Th e document is divided into 4 parts: I. Th e right to medical care; II. Th e right to protection of income through social insurance mechanisms; III. Th e right to non-discrimination; IV. Th e collective fi nancing of these rights. Th e fi rst theme is the right to medical care. It achieves preventive and curative medical services. Th e second theme is formed by the right to protection of income by social insurance mechanisms and are provided the guarantee of coverage of 9 modalities of circumstances that prevent the person from obtaining income from his own work. Th e hypotheses are as follows: 1. non- occupational diseases; 2. occupational diseases, 3. work accidents, 4. unemployment; 5. advanced age; 6. Family situation responsible for the maintenance of children; 7. Situation of gestation and maternity, 8. Full incapacity for work of generic cause; 9. Death. Th e third theme is formed by a general rule of non-discrimination and equal treatment for foreign residents. Th e fourth are minimum rules for calculating benefi ts, and the fi fth and fi nal theme involves rules for collective fi nancing of these services and

106 payments, which must be carried out through payment of taxes or through specifi c contributions, as long as they proportionate to the economic capacity of the taxpayers. Eighteen years after the publication of the Universal Declaration, the UN adopted the International Covenant on Economic, Social and Cultural Rights, the ICESCR. Such Convention, of undoubted mandatory nature for signatory States, brings a very important Article 9, which recognizes social security as a human right: Th e States Parties to the present Covenant recognize the right of every person to social security, including social insurance. Conversely, particularly signifi cant is to note how Brazil has welcomed such Convention. Th e Presidential Decree n. 591, 06. 07. 1992 brings a gross error of translation precisely with such article Th e Decree established that: “Th e States Parties to the present Covenant recognize the right of every person to social security, including social security”. Th e translation makes the mistake of translating “social security” into “previdência social,”6 and then makes a new mistake in assuming that “social insurance” and “previdência social” are diff erent things. Th e correct translation, therefore, is the one indicated above: “… social security, including social security”. A same gross error, by the way, had already been committed in Decree No. 99,710, dated 21. 11. 1990, which translated the UN Convention on the Rights of the Child, Art. 26, 1-1. Th e consensus obtained from discussions at three recent International Labour Conferences (2001, 2011 and 2012) resulted in a Recommendation n. 202 (ILO), which introduced the important concept of the right to “Minimum Social Protection Floors”. Th is is a concept that gives a new operational meaning to the human right to social security and to an adequate standard of living, which was once only a positive human right. It came from a broad coalition of international interests from 189 countries, not just the human rights activist movement. It has been designed to carefully harmonize human rights and availability of resources and promotion of economic productivity. Th erefore, it is a new vision in the fi eld of the human right to social security, since the consensus is based on evidence that social protection systems correspond to an investment that increases the capacity and productivity of work, and that collaborates to increase the aggregate domestic demand, favoring the sustainability of the economy. According to such new understanding, an accessible social protection fl oor can be introduced, supplemented or maintained everywhere, depending on the circumstances of each country. Such a vision highlights the goal of ensuring universal coverage, albeit at diff erent levels in each region. However, the social protection fl oor should consist of at least four basic social security guarantees: (a) essential health care, which should include special care with maternity; (b) minimum income security for children, with a minimum level valid throughout the national territory, guaranteeing access to nutrition, education and other essential care; (c) minimum income security for persons of working age but who are unable to obtain suffi cient income because of illness, unemployment, maternity or disability; (d) minimum income security, at a national level, for the elderly.

6 Th e expression “previdência social” comes from the italian model: previdenza sociale, which means, in short, income protection conditionned by a mechanism of social insurance.

107 As is the ILO document states, the current context calls for the development of a new model of social security, based on human rights, fl exible and compatible with resources available in each country, which is in perfect harmony with the guidelines of the ICESCR. Th ese minimum levels must therefore result from a democratic agreement involving at least workers, employers and the State. Th erefore, the recommendation is not to imitate or replicate models of foreign regimes. On the contrary, it is to use foreign experience to implement the most effi cient model possible in each state. More recently, in the framework of the United Nations, and due to the meeting of the Summit for the Sustainable Development that took place in September of 2015, another extremely relevant document appeared, with an Agreement nature, which contemplates 17 Objectives for Sustainable Development – ODS, and 169 more goals. Th e objectives 1, 2, 3, 6 and 8, which specifi cally address social security issues, namely: (1) eradication of poverty, (2) eradication of hunger, (3) health protection, (6) water management and basic sanitation, and (8) decent work. What is particularly signifi cant within the case of this new agreement is the connection between social security human rights and resilience. Taking such normative system as a whole, it is notable that since the Atlantic Charter, ILO Conventions and Recommendations, together with the UDHR and the ICESCR, along with more recent documents as R202 and the SDG, it is remarkable that presently social security is defi ned only as a human right: in addition, it is understood as an indispensable via to the economic development and community resilience. In fact, numerous Conventions and Recommendations, as well as recent documents on sustainable development take it as fundamental human right. Nonetheless, the scope of protection is the under some controversies. In times of great disruptions as the present time, such large normative panorama also brings several uncertainties. Th is is not a reason, however, not to admit its minimum content formed by the rights related to decent work, income security, health protection and social assistance to those who have no economic means or health reasons to exercise autonomously individual, civil, economic and cultural policies. Th ese rights form the minimum content of the scope of protection of the human right of social security are strongly interrelated each other. What remains open is what exactly might business enterprises meet to be diligent with this human right.

3. Adverse impacts of business on human rights of social security Adverse impacts of business activities on the human right of social security are not a mere scholarly hypothesis. On 2017, March, the Governing Body of the ILO – International Labour Organization stated that … advances made by multinational enterprises in organizing their operations beyond the national framework may lead to abuse of concentrations of economic power and to confl icts with national policy objectives and with the interest of the workers. In addition, the complexity of multinational enterprises and the diffi culty

108 of clearly perceiving their diverse structures, operations and policies sometimes give rise to concern either in the home or in the host countries, or in both.7 On 2017, August, the UN Committee on Economic, Social and Cultural Rights has solemnly stated that it has been … regularly presented with situations in which, as a result of States’ failure to ensure compliance, under their jurisdiction, with internationally recognized human rights norms and standards, corporate activities have negatively aff ected economic, social and cultural rights 8 (p. 1). A number of experts have been claiming and warning likewise 9. Aware of the complex range of social rights subject to adverse impacts of global business or any kind of corporate action, what is focused here is only measures to be adopted by to enforce social security rights. As such, the major challenge of the chapter might be put as follow: what are the chief standards corporations must follow to be in compliance with international human rights whenever social security rights are at stake? First of all, the broadest duty in this respect is to avoid discriminating practices in private spheres, whatever they are. Direct as well as indirect discrimination 10 is a general non-compliant business practice because it violates the duty to treat everyone with equal respect. Th is is fi rmly set up in several human rights instruments 11 as well as in General Comments.12 Take the most vulnerable people, for instance. It is rather clear that because of their condition of being politically disempowered, some minorities are notably more susceptible to violations by enterprises practices. As put by the UN Guidelines, there are many groups or populations that “may be at heightened risk of becoming vulnerable or marginalized”.13 Th ese groups are under the scope of human right of social security, but on the other hand, there are equally recognized as a, generally speaking, particular case for business enterprise adverse impacts. If one takes Human Rights Reports 14 so as to gather

7 ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, p. 9 8 UN, General Comment No. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, 2017, p. 1 9 RUGGIE, J. Protect, respect and remedy: a framework for business and human rights. Innovations, 2008, p. 191; HACKET, C. Developmente in a era of capital control: embedding corporate social responsability within a transnational regulatory framework. London: Palgrave, 2017, p. 25. 10 UN Guiding principles on business and human rights, 2008, p. 6. 11 See, UN, General Comment n. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, 2017, p. 2; ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, p. 8. 12 See Committee’s General Comments no 18, § 13 and 14; no 20 (2009) § 7, 8, 11 and 32; no. 23, § 47 (e); no. 6 (1995) § 22; no 4, § 8 (e), 17; United Nations Declaration on the Rights of Indigenous Peoples (A/ RES/61/295, annex, art. 32 (2)), E/C.12/2017/1. 13 UN Guiding principles on business and human rights, 2008, p. 6. 14 See, UNITED NATIONS. Human Rights Council. Report of the Special Rapporteur on violence against women, its causes and consequences: mission to United Kingdom. New York: UN, 2015; UNITED NATIONS. Human Rights Council. Report of the Special Rapporteur on violence against women, its causes and consequences: mission to Italy. New York: UN, 2012; UNITED NATIONS. Human Rights Council. Report of the Special Rapporteur on violence against women, its causes and consequences in United States: Mission to the United States of America, New York: UN, 2011.

109 information upon the condition of women, in particular if accompanied by children, or, furthermore, indigenous woman, migrant woman, as well as undocumented people, asylum seeker or even a persons with disability, it will not be arduous to conclude on the unreasonable amount of violation based on discriminations practices. Although prioritizing interests of business entities over Covenant on human rights without adequate justifi cation is assumed both by United Nations as well as by State- parties 15 as a breach or violation, it is fair to argue that such sort of inversion of priorities might also be taken as unreasonable by the business world. As for the scope of the concept of business world, it shall be taken as any business practices from mere domestic players to multinational enterprises.16 It follows that what is meant by business world imply local practices and relevant international standards.17 Now, crucial is to understand that human rights do not set out an absolute veto to such a kind of inversion. In this fi eld, adequate justifi cation is claimed, which means good reasons based on optimal protection of human rights. Providing good reasons is less than assuming an absolute obligation to put human rights in fi rst place. As a matter of fact, human rights instruments aim at achieving a fair balance between corporations’ goals and human rights, fi rst and foremost due to the signifi cant value of human rights to the spread of a culture of human dignity and equal respect, but also and above all, due its importance to sustainable development as a whole.18 Th is is the reason why exceptionally human rights may well be on second place in a concrete circumstance where business goals are disputing priority. Yet, given that States are not allowed to prioritize business interests without adequate justifi cation, hence why could companies be allowed to downgrade human rights in favor of economic goals? It is non-sense. In both cases, such type of inversion is a non-compliant measure. Within this framework, strong reasons are those valid to the reasoning of human rights. Currently it must be grounded both in human rights and sustainable development agenda, while exceptional circumstances depend on facts and must be described in an understandable way. So as to avoid a non-compliant practice, business must take into account the precise signifi cance of priority (of human rights). Accordingly, enterprises – above all multinational ones – are claimed to “make qualifi cations, skill and experience the basis for the recruitment, placement, training and advancement of their staff at all levels”.19

15 ESC Committee, General Comment n. 24 (GC24), p. 4. 16 When human rights are at stake, good business practices must not depend on national borders. As mentioned by ILO, multinational and national enterprises … should be subject to the same expectations in respect of their conduct in general and their social practices in particular. In. MNE Declaration, 2017, p. 10. See also, UN Guiding principles on business and human rights, 2008, p. 6. 17 ILO, MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017. 18 Th e new 2030 Agenda is explicitly grounded in the UN Charter, the Universal Declaration of Human Rights, international human rights treaties, including the Declaration on the Right to Development (para 10). See, Human Rights in the 2030 Agenda for Sustainable Development, available at: http:// www.ohchr.org/Documents/Issues/MDGs/Post2015/HRAndPost2015.pdf. 19 ILO, MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017, p. 8.

110 Another fair parallel must be done with the duty of States toward protecting human rights. Among other things, States parties have a duty to protect social human rights by all means, according to their available resources. Likewise, and based on that, human rights due diligence plans might be implemented wherever a company benefi t of State protection.20 Th erefore, fundamental labour rights to (a) freedom of association and the eff ective recognition of the right to collective bargaining; (b) elimination of all forms of forced or compulsory labour; (c) eff ective abolition of child labour; and (d) elimination of discrimination in respect of employment and occupation are supposed to be part of such a kind of programs. By the side of labour rights, it is worth mentioning that “multinational and other enterprises could complement public social security systems and help to stimulate further their development, including through their own employer sponsored programs”.21 Within the fi eld of health, part of this aim might be provided, for instance, by preventative programs of safety and healthcare culture. A very good example of such practice stem from the very recent partnership between three giants: Amazon, Warren Buff ett’s Berkshire Hathaway and the New York bank JP Morgan. Th ey decided to create a company that helps their US employees fi nd quality care at a reasonable cost.22 Likewise, by providing due information regarding products and processes, enterprises may accomplish a crucial role within the scope of social security for a context of an information society. Still, by observing conformity with national requirements a multinational enterprise may enhance the state of knowledge of special and unforeseen hazards by the local rules.23 Furthermore, traditional people – such as indigenous ones – must have respected their right to be aware in advance not only about means, but also about the ends of business undertakings with which they engage. Given that indigenous people have the right to benefi t of development activities, companies must clarify how (and in what amount of) outcomes, profi ts and yield is expected to be shared with them. Th us, due diligent business programs can foresee such issues and display them to all stakeholders. Th e business duty to respect consists in adopting a fair set procedure to do business with traditional people in order to be able not to cause adverse impacts on human rights. Th is also apply to all other sensitive fi elds of human rights such as new medicines, accommodation for disable people, natural resources exploitation, real estate market, migrant workers, marketing and advertising, and so on. In spite of doing business in sensitive fi elds of human rights, as well as with sensitive sort of persons, is a fact all over the world, it is lacking a due diligent approach to the issue. Previous consultation, social dialogue with representative institutions are examples of due diligent proceedings strongly recommended by the Committee.

20 Th is orientation is seen as a foundational principle. See, UN Guiding principles on business and human rights, 2008, notably items 11 and 12. 21 ILO, MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017, p. 14. 22 Amazon and Warren Buff ett to create ‘reasonable cost’ healthcare company, Available at: www.theguardian. com/technology/2018/jan/30/amazon-warren-buff ett-jp-morgan-healthcare 23 ILO, MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017, p. 11

111 If on the one hand respecting human rights can be seen as a conservative approach thereof, on the other, promoting human rights is to be taken as its natural and necessary complement. Respecting and promoting human rights is a very sensitive matter. Th ough, it is not a sensitive issue only because of moral intents with human dignity and personal development. Realizing its connection with economic development, it should be recognized that such connection is also, and above all, a matter that deserves a very special economic consideration in current discussions regarding sustainable development, in particular where interests of non-developed and developing economies are concerned. Regarding such human right perspective, due diligent business programs shall embrace commitments with the generation of employment.24 To some extent, part of business world operates as though anything, but marketplace could be carried out. One might argue that such a vision is old-fashioned. Not only United Nations along with International Labour Organization, but also Global Economic Forum (Davos) has been claiming for reshape the vision of economic progress solely market centered. During the 2018 meeting of World Economic Forum, members from various industries – food and beverage, healthcare, fi nance, professional services – that are [L]eaders in their respective sectors have signaled a need to act. Not only is rising inequality and social instability bad for business, but it has led to an erosion of the private sector’s “licence to operate” in society. In short, a deeply held corporate concern is that the current economic model is unsustainable. that decent work must be balanced with productivity aims.25 It follows that investment and employments plans must be deemed as to combine one with another so that the use of technologies can generate employment, as much direct as indirectly.26 Th is is of particular relevance within the context of countries “where discontinuation of operations is likely to accentuate the long-term unemployment”.27 On the other hand, even though enterprises could operate with the view of generating employment, it is unlikely that innovations implemented so that to further competitiveness as well as productivity will not cause adverse impact on employment. It would be far better admitting that technological enhancements will cause more unemployment than create, notably within industrial fi eld. Having said that, enterprises are not free to simply going forward with innovations and redundancies. Business world in a digital era is supposed to notice such challenging alterations, not only to authorities but also to representatives of workers, in order to mitigate adverse impacts on employment.28

24 ILO, MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017, p. 9. 25 A New Vision for Inclusive Growth and Development, available at: https://www.weforum.org/projects/ inclusive-growth-and-development, access in Jan 26th, 2018. 26 Idem. 27 ILO. MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017, p. 9. 28 ILO, MNE Declaration, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 2017, p. 9.

112 Although violations to human rights is supposed to be primarily avoided instead of remedied, a due diligent business program might also provide information on how the company address confl icts in case of harming human rights. General statements set forth in a applicable policy or procedure, such as respecting due process, human rights or democracy do not properly meet a business due diligence policy toward respecting human rights. Details upon means to be adopted are crucial, particularly in adverse political, geographical or technological circumstances. Remedying harms in adverse circumstances are harder and clearly aggravate disadvantages of vulnerable people.

4. Conclusions According to the UN Guiding Principles, business enterprises should respect human rights. To do so, it is expected they avoid infringing, as well as address adverse impacts they are involved. To do so, they have to create corporate process and policies. Th is is the essential feature of enterprises’ Due Diligence. Without processes grounded on appropriate data, approved by the highest level of decision making, with the aim to identify, prevent, explains expectations, mitigate, remediate and communicate to all stakeholders upon actions which are assumed to harm human rights, no business enterprises might be recognized as having due commitment with human rights. All actions must count with consultations with potentially aff ected groups. UN Guiding Principles do not touch particularly to social security. Nonetheless, it is of huge relevance insofar it states how enterprises might operate to stablish decision making process in harmony with all human rights. According to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy of ILO, Multinational Enterprises’ Due Diligence process might also provide positive actions to overcome unemployment and underemployment so as to achieve standards of decent work (elimination of forced labour, child labour, unhealthy or unsafety conditions of work, minimum wage, income protection, stable employment). Particular concerns related to this point are expressed with their operations in poor and underdeveloped societies, where not only unionism usually is not strong enough to resist against practices which negatively aff ect human rights, but also where technological backwardness associated with the lack of a legal social protection tend to create enormous disadvantages for employees meanwhile rent seeking rationality tend to take root by the part of enterprises. Still under the terms of ILO Declaration, multinational enterprises might play a crucial role as States’ social partners to the implementation and sustainability of social security schemes, including via their own employer-programs. Here we meet a very signifi cant connection with social security principles. In fact, whenever multinational enterprises decide not to apply to foreigners the same benefi ts they off er to domestic (or elsewhere) employees, they carry out discriminatory operations. Th at is to say, they breach one of the cardinal and fundamental value of democratic societies. Whereas the above-mentioned documents attach human rights to business due diligence processes, as well as they set forth detailed standards, particularly addressed to multinational enterprises, to fulfi ll social security gaps within host societies facing social vulnerabilities, the recent General Comment n. 24 adopted by the Committee

113 on Economic, Social and Cultural Rights in the midst of 2017, emphasize the role of States-party in providing a legal framework to limit as well as increasingly promote business commitment with human rights. Although this document deals with the state’s performance in more detail, it brings an important focus to partnerships and also to the interrelationships between State and business enterprises. In fact, such Comment provides valuable warnings upon new relationships between state and business practices that have very signifi cant eff ects on public social security policies. It is in this document that one can more clearly see state actions that can generate large-scale adverse impacts if social policies are not eff ective. Firstly, the document draws attention to the phenomenon of privatizations of essential social security services. Certainly, the act of privatizing public services, per se, is not forbidden. Moreover, the document encourages the good relationship between the public and private sectors to ensure the best conditions for the implementation of human rights. However, when the privatization process occurs in the areas of social insurance, health or even education, in fact the concerns increase because of the social signifi cance of these services. Also, the risks of corruption are said to be highly detrimental to the purposes of human rights. Th us, State regulation needs to address not only the business enterprise’s engagement with the human rights agenda, but it must also take care of the deviations that may occur – which are abundantly occurring – when private interests predominate in associations with public goods, such as social security services.

114 9 Governance, Business, and Human Rights: Reflections about the Prohibition of Social Retrogression in Social Service Deliverance in Case of Economic Crisis

Rogério Luiz Nery da Silva 1 Cristiane Brum dos Santos 2

1. Introduction In the science of economics, the imbalance between revenues and expenses motivates the realization of contingencies and cuts in fi nancial commitments. Th e adjustment of the accounts presumes the maintenance of the essential and indispensable expenses and the revision, limitation or elimination of those considered superfl uous and of those little or moderately necessary. In the case of an economic crisis installed in a country, the directives adopted usually follow in the same direction and, historically, the social rights and legal benefi ts arising, as well as the foundations of Social Justice, become frequent targets of the contingency management plan. Th ese directives may seem to contradict each other, beacuse it is exactly in these diffi cult moments that social benefi ts become even more necessary to guaranteeing the existencial minimum to a considerable part of the population. Among the problems that emerge from the relationship between social rights and scarce resources, such as the argument of fi nancial limitation reserve of what is realistically possible to be done and the pression for it, by means of judicialization of public policies. It is controversial to what extent social rights can be limited under the prism of the prohibition of retrocession. Th is is because it is not plausible and credible, based on the primacy of the Brazilian legal system, that any fundamental right, whether civil or social, is subject to a process of total disposition, at the discretion of the infraconstitutional legislator and the public powers on the other hand it is not possible to conceive any right as an absolute empowerment in all and every cases.

1 NERY DA SILVA, Rogério Luiz. Post-doctorate (PhD.) in Law; Postdoctoral studies at the Université de Paris X (France); Postdoctoral studies at the New York Fordham University School of Law (United States of America); Full Professor at the University of Western Santa Catarina (UNOESC-BRAZIL); Postdoctoral candidate student at the Federal University of Santa Catarina (UFSC). Doctor in Law (UNESA) and Master in Law (UNIG). Professor at the School of Magistrates of the State of Rio de Janeiro (EMERJ). Professor at the Public Ministry School Foundation of Rio de Janeiro (FEMPERJ). E-mail: [email protected]. CV: http://lattes.cnpq.br/1275400369932551. 2 Master’s student at the University of Western Santa Catarina – Unoesc (Brazil). Servant of the Federal Regional Court of the 4th Region; Visiting Researcher in the LLM at Middlesex University (London). E-mail: [email protected]. CV: http://lattes.cnpq.br/9682274992590998.

115 For this reason, the structure of this research was idealized in three parts. Th e fi rst one, materialized in the introductory section of this work, sought to delineate the dogmatics of human and fundamental rights, based on a historical revision of its recognition, with a focus on social rights and its protection. In the second part, the contours related to the eff ectiveness and eff ectiveness of the norm of fundamental right, as well as the doctrinal conception of the prohibition of retrocession were analyzed. Th e third and last one dealt with the relationship between the eff ectiveness of social rights and the outbreak of economic crisis, problematizing the risk of prejudice of social legal benefi ts and identifying the refl exes of the prohibition of retrogression in the protection and eff ectiveness of social rights. It shall be remarked, in a timely manner, that the research was developed using the deductive method, through qualitative and exploratory research.

2. Development

2.1 Recognition of rights and the scope of protection of social rights Th e concept that man, because of his humanity, has inherent rights and should be protected against third parties and still the State itself refers to Ancient Greece despite it is not so easily recognized by those who consider human rights starting with the three bourgeois revolutions. For others, since the earliest times, civilization has shown a concern to secure and safeguard rights, even though it was recognized only by a limited number of holders. According to Comparato,3 it is in the axial period, between the 8th and 2nd century BC, when man begins to construct knowledge from his rationality and dissociates himself from the mythological explanation of the world, that the fi rst contours of human rights are unveiled. It is precisely in Athens, the cradle of democracy, that man comes to understand the other as equal in rights and obligations. Drawing on Aith’s historical retrospective,4 it is possible to relate some important periods for the evolution of human rights. Th e Stoic school, a reference to both Roman law and medieval thought and to positivism itself, conceived the right of man as a natural right, coming from divinity, immutable and eternal. Already in the Medieval Era, the foundation of the law centered in the fi gure of a God, being the right, then, natural, result of the divine will. As a refl ection of a transition period, in which absolutist states succeeded the power of the Catholic Church in the Middle Ages and, therefore, the divine foundation of natural law was disfi gured, the natural-law movement emerged. Th is theory was intended to justify the rights of man based on his rationality, being rights inherent to the human being. In the last centuries of the Modern Era, the development of the concept of rights has gained new chapters, especially since the French Revolution and the Declaration of the Rights of Man of the Citizen, recognized and declared by the National Assembly

3 COMPARATO, F. K.: A afi rmação histórica dos direitos humanos. 3rd edition revised and expanded. São Paulo: Saraiva, 2003. 4 AITH, F.: Políticas públicas de Estado e de governo: instrumentos de consolidação do Estado Democrático de Direito e de promoção e proteção dos direitos humanos. In: BUCCI, M. P. D. (Org.).: Políticas públicas: refl exões sobre o conceito jurídico. São Paulo: Saraiva, 2006. p. 222.

116 in 1789. Indeed, Bobbio 5 conceives the Declaration as paradigm in the positioning of the rights of the rulers and of the governed, being the fi rst letter of rights to reverse this relation, establishing in the fi rst place the rights and, in a second moment, the duty of the governments in guaranteeing them. As a result of the historical analysis of human rights, the Universal Declaration of Human Rights, proclaimed by the 1948 United Nations General Assembly, should be emphasized. Th e thirty-article document originally voted by the member countries of the United Nations, except only for the Soviet Union, Ukraine, Belarus, Czechoslovakia, Poland, Saudi Arabia, South Africa and Yugoslavia, which abstained. Th e understanding of this terminology is relevant to study the subject of human rights, in order to highlight the rights of all humans, at least in theory, of the rights guaranteed within each country. Precise, however, is the observation that there is not an unique concept of human right and fundamental right in doctrine or even under the law. Concerning the fundamental rights, the diff erentiation between fundamental civil rights and fundamental social rights is currently discussed. Th is is because, in reference to the primacy of the French Revolution, it is understood that rights have been subdivided into rights to liberty, equality and fraternity, and therefore, at least historically,6 three diff erents generations (or better dimensions) of rights. In Sarlet’s 7 lesson, the expression “dimensions” rather than “generations” is preferable, since the former would remove a possible contradiction caused by the second, in the sense that there would be a substitution of rights to each generation. Indeed, Nery da Silva 8 argues that the idea of “dimensions” would not represent an exclusion or overlapping of rights, but, in fact, a sum, a complementarity. In this sense, Torres 9 recalls that the thesis of the indivisibility of human rights has gained strength in international constitutionalism since the 1990s, so there is no dissociation between civil rights and social rights, given its uniqueness. Such is the view of Piovesan,10 who asserts that the Federal Constitution of 1988 enshrined the

5 BOBBIO, N.: A Era dos Direitos. Translated by Carlos Nelson Coutinho. Presented by Celso Lafer. Rio de Janeiro: Elsevier, 2004. 6 According to COMPARATO, F. K.: A afi rmação histórica dos direitos humanos. 3rd edition revised and expanded. São Paulo: Saraiva, 2003, p. 222-224. 7 SARLET, I. W.: A efi cácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12nd edition revised, updated and expanded. Porto Alegre: Livraria do Advogado, 2015a, p. 29-45. 8 NERY da SILVA, R. L.: O Estado contemporâneo e a força subjetiva dos direitos sociais. In: BAEZ, N. L. X.; GESTA, R. L.; MEZZAROBA, O. (Coord.).: Dimensões materiais e efi cácias dos direitos fundamentais. São Paulo: Conceito Editorial, 2010, p. 188-189. 9 TORRES, R. L.: O mínimo existencial, os direitos sociais e os desafi os de natureza orçamentária. In: SARLET, I. W.; TIMM, L. B. (Org.).: Direitos Fundamentais: orçamento e “reserva do possível”. 2nd edition revised and expanded. 2 print run. Porto Alegre: Livraria do Advogado, 2013, p. 65-67. 10 PIOVESAN, F.: Direitos Humanos e o Direito Constitucional Internacional. 14. ed., revised and updated. São Paulo: Saraiva, 2013, p. 91.

117 principle of the indivisibility and interdependence of fundamental rights, and divorce of the rights of freedom of equality rights was unreasonable. In the Th eory of Fundamental Rights, Alexy 11 starts from the principle of subjective right as a supra-concept for distinct legal positions and uses the classifi cation proposed by Jeremy Bentham to defi ne the positions as rights to something, liberties and competences. It deals with the subjective right to something, in which there is a triadic relationship between the holder of the right, the bearer and the object of the action, which is always about an action of the recipient, whether positive or negative. Th us, in his lesson, from the object of law it is possible to categorize the fundamental rights in fundamental rights to negative actions and fundamental rights to positive actions towards the State. According to this theory,12 rights to negative actions, or rights of defense, can be classifi ed as “rights to non-embarrassment of actions”, “rights not to aff ect characteristics and situations” and “rights to non-elimination of legal positions” (or rights in themselves). As for the fi rst group, “rights to non-embarrassment of actions”, includes the rights that the State does not hinder or prevent actions of the right holders. Th e second group, “rights not to aff ect characteristics and situations”, contains rights to not change the characteristics and situations of the right holder. Finally, as regards the third group, “rights to the non-elimination of legal positions”, it includes rights that the State does not eliminate legal positions of the holder of the right. At another vertex, the rights to positive state actions, in the Alexyan theory, comprise positive actions (or rights to benefi ts in the strict sense) and positive normative actions (rights to benefi ts in a broad sense, rights to which the State creates norms). Th e classifi cation developed by Sarlet 13 follows the theory of Robert Alexy. For the former, one could speak of fundamental rights of defense and fundamental rights to benefi ts and, in a second subdivision, fundamental rights to benefi ts in a broad sense and fundamental rights to benefi ts in the strict sense. Th e classifi cation of the scope of the protection of the rights commonly called civil and social rights is taken from this classifi cation. In the case of these, in particular, these are rights whose legal positions may have a positive and / or negative character, so that in the internal constitutional order, the catalog of social rights of the Federal Constitution 14 holds legal positions of benefi t and defense, being, therefore, heterogeneous. It is worth here to record the concept of rights to benefi ts in the strict sense of the Alexy’s theory: “[t]he rights of the individual, in the face of the State, to something that

11 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 195-196. 12 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 196. 13 SARLET, I. W.: A efi cácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12. edition revised, updated and expanded. Porto Alegre: Livraria do Advogado Ed., 2015a, p. 174. 14 See article 6 of 1988’s Brazilian Federal Constitution, updated by the 26th/2000, 64th/2010 e 90th/2015 amendments: “Art. 6 – Th e following are social rights: education, health, food, work, housing, transportation, leisure, security, social security, maternity and child protection, assistance to the homeless, in the form of this Constitution.”

118 the individual, if he had suffi cient fi nancial means and if there was a suffi cient supply in the market, could also be obtained from individuals”.15 Th e fundamental social rights are embodied in the enabling elements of the welfare state’s primacy of social welfare. For Nery da Silva,16 the minimal, liberal State of non- intervention in the negative rights gives way to the intervening State, engaging in the economic sphere for the promotion of social programs and goals, after the excesses experienced at the beginning of the XX century. 2.2 Social rights in the area of eff ectiveness and the prohibition of retrocession In the examination of the dogmatics of social rights in the internal constitutional plan, the study of its eff ectiveness is particularly relevant. Th is is because it is commonly conceived that the protection, guarantee and realization of social legal benefi ts would be conditioned to the factual and legal possibilities of the State and, therefore, that the budgetary constraints would be severe obstacles in the attainment of these constitutional objectives. In Barroso’s 17 teaching, eff ectiveness, thus understood as the materialization of the law or the fulfi llment of the order embodied in the norm, comes to get enforced by the constitutional order of the country, insofar as the Federal Constitution and its own provisions are interpreted under the prism of the doctrine of eff ectiveness. In accordance with this movement, the Federal Constitution ceased to be a document of mere intentions, dissociated from reality, to make itself present in the world of facts, materializing its devices in a true constitutional dirigism. Th e doctrine of eff ectiveness ratifi es the ideal of a normative force of the Federal Constitution of 1988, from which it must be valued by the maximization of the eff ects of the constitutional devices. Th e content of the eff ectiveness thesis 18 and the principle of normative force of the Constitution were formally positivated in the constitutional text, admitting, for this understanding, the close relationship between the institutes of applicability and eff ectiveness, since the constitutional provision guaranteed the right holders and the immediate applicability of these guarantees. According to Piovesan,19 the Constitution establishes a juridical system of fundamental rights, freedoms and guarantees, based on its normative force, imperativeness and maximum and immediate eff ectiveness.

15 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 499. 16 NERY DA SILVA, R. L.: O Estado contemporâneo e a força subjetiva dos direitos sociais. In: BAEZ, N. L. X.; GESTA, R. L.; MEZZAROBA, O. (Coord.).: Dimensões materiais e efi cácias dos direitos fundamentais. São Paulo: Conceito Editorial, 2010, p. 187. 17 BARROSO, L. R.: Curso de Direito Constitucional Contemporâneo: os conceitos fundamentais e a construção do novo modelo. 5 edition. São Paulo: Saraiva, 2015, p. 517-518. 18 According to Article 5 of 1988’s Brazilian Federal Constitution. 19 PIOVESAN, F.: Direitos Humanos e o Direito Constitucional Internacional. 14. edition, revised and updated. São Paulo: Saraiva, 2013, p. 91.

119 On the other hand, Sarlet 20 defends an immediate applicability to all fundamental rights, not only to those who make up the Constitution’s role, highlighting its principiological character, as an “optimization warrant”, a concept that originates in the distinction between rules and principles formulated by Alexy 21 in his work Th eory of Constitutional Rights. According to the classic distinction made by Silva,22 the validity, validity (legitimacy) and eff ectiveness of the standard constitute a general condition of applicability of the constitutional norms, due to what must be the norm, be valid and eff ective in the legal order to be applicable. Th e jurist sees applicability and eff ectiveness as very close expressions, with applicability being conditioned to eff ectiveness, as well as the inverse premise. At another vertex, Barroso 23 conceives of eff ectiveness as a fourth plane of norms, hitherto little explored, considering existence (or validity), validity, and effi cacy. From this argumentative line, one has that the eff ectiveness of the norm diff ers in the legal and social planes. In Sarlet’s lesson,24 legal eff ectiveness includes the ability of the norm to have eff ects in the legal world, constituting a presupposition for the social eff ectiveness of the norm, which houses the eff ective implementation of the normative program. In this line of thinking, in order to be eff ective in the concrete dimension, the norm must be capable of producing legal eff ects. Silva,25 on the other hand, faces the controversial distinction between effi cacy and eff ectiveness, asserting that legal effi cacy is directly related to the elements that make up the general condition of applicability, that concretizes the eff ectiveness, while social eff ectiveness comprises the realization, albeit partial, of the objectives set forth by norm. From the examination of the problem of eff ectiveness from the species of fundamental rights, it is undeniable that the plan for the eff ectiveness of the negative rights would

20 SARLET, I. W.: A efi cácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12nd. edition Revised, updated and expanded. Porto Alegre: Livraria do Advogado Ed., 2015a, p. 278. 21 Acording to Alexy (2015, pp. 90-91).”Th e decisive point in the distinction between rules and principles is that principles are norms that order something to be done to the greatest extent possible within existing legal and factual possibilities. Principles are, therefore, commandments of optimization, which are characterized by being satisfi ed to varying degrees and by the fact that the due measure of their satisfaction depends not only on factual possibilities, but also on legal possibilities. Th e scope of legal possibilities is determined by colliding principles and rules. Rules are rules that are always either satisfi ed or not satisfi ed. If a rule holds true then one must do exactly what it requires; neither more nor less. Rules therefore contain determinations within the scope of what is factually and legally possible. Th is means that the distinction between rules and principles is a qualitative distinction, not a distinction of degree. Every rule is either a rule or a principle.” 22 SILVA, J. A. da.: Aplicabilidade das normas constitucionais. 7th edition, 2nd print run. São Paulo: Malheiros, 2003, p. 52. 23 BARROSO, L. R.: Curso de Direito Constitucional Contemporâneo: os conceitos fundamentais e a construção do novo modelo. 5th edition. São Paulo: Saraiva, 2015, p. 255. 24 SARLET, I. W.: A efi cácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12. edition. Revised, updated and expanded. Porto Alegre: Livraria do Advogado Ed., 2015a, p. 248. 25 According to SILVA, J. A. da.: Aplicabilidade das normas constitucionais. 7th. edition 2nd. print run. São Paulo: Malheiros, 2003, p. 66.

120 be without further digressions. In the case of high-density standards, their capacity for producing the main legal eff ects is immediate, with the exception of legislative intervention.26 By their turn, the norms that favor social legal benefi ts, by some considered as of a programmatic nature, under this view, shall enjoy a relative density, in a minimum normativity that requires legislative intervention for the full achievement of the objectives of the norm. At this point, that sounds quite contradictory with the thought of Mello,27 to whom social rights, those rights aimed at the realization of Social Justice, have the capability to produce legal eff ects immediately, even though they diff er from other rights by the eff ective charges. As for a sort of a last analysis of the problem, it is possible to affi rm the existence of na umbilical relationship between the legal and social eff ectiveness of social rights and their economic expression. Although a respectful group of authors support the positive dimension of all fundamental rights, because the negative rights also represent high fi nancial costs to the State, the problematic gains body in the positive rights or – better called and know – rights to benefi ts, because their realization depends signifi cantly more on the allocation of resources. It is imperative that Torres,28 for whom the doctrine of the eff ectiveness of social rights represents a legacy of the German social-democratic constitutionalism of the 1950s and 1970s, during a period of great western economic growth, as well as of the Portuguese Canotilhian constitutional dirigisme. It states, however, that the fall of the Berlin Wall in 1989 was paradigmatic for the transition from the conception of maximum eff ectiveness to the thesis of the indivisibility of human rights. In terms of the eff ectiveness of social rights, the prohibition of retrogression deserves to be analyzed. Understanding the concept and scope of this principle is justifi ed by the frequent emptying of the eff ectiveness and eff ectiveness of social rights from state retrogressive measures, especially in times of economic crisis. Th e principle of prohibition or prohibition of retrogression is a legacy of legal- constitutional dogmatism that envisions the scope of protection, limits and limits to the limits of fundamental rights as three important characteristics for the realization of rights. Along the same lines as Goldschmidt,29 the recognition that fundamental rights are not subject to absolute availability, at the discretion of the legislator or the public administrator, testifi es to the necessary eff ectiveness advocated by leading constitutionalism.

26 According not only to SARLET (2015a) and SILVA (J., 2003) as well. 27 MELLO, C. A. B. de.: Efi cácia das normas constitucionais e direitos sociais. 1st. edition. 4th. print run. São Paulo: Malheiros, 2015, p. 56. 28 TORRES, R. L.: O mínimo existencial, os direitos sociais e os desafi os de natureza orçamentária. In: SARLET, I. W.; TIMM, L. B. (Orgs.).: Direitos Fundamentais: orçamento e “reserva do possível”. 2nd. edition revised and expanded. 2nd. print run. Porto Alegre: Livraria do Advogado, 2013, p. 64-67. 29 GOLDSCHMIDT, R.: O princípio da proibição do retrocesso social e sua função protetora dos direitos fundamentais. In: Seminário Nacional de Dimensões Materiais e Efi caciais dos Direitos Fundamentais. Chapecó: Editora Unoesc, 2011, p. 281

121 As a legacy of the German legal system, the prohibition of retrogression 30 was conceived on the basis of an extensive interpretation of the right to property (Article 14 of the Grundgesetz), according to which social legal benefi ts recognized or conferred by law and, of a patrimonial character, being incorporated to the legal patrimony of the holder. In the Brazilian case, the constitutional plan does not contain the necessary legal treatment on the subject of limits and limits to the limits of fundamental rights, presenting only the provision of legal reserves and the stony clauses. Sarlet,31 however, using the majority doctrine, argues that the legal system sheltered the prohibition of retrocession, as an implicit, not express, principle. Th is is because the canon of progressivity in economic, social, and cultural rights was recommended to countries by the United Nations’ International Covenant on Economic, Social and Cultural Rights 32, 33 adopted in 1966, and by the American Convention on Human Rights,34 commonly known as the Pact of San José. In the wake of the Covenants, Bühring 35 sustains that the principle of the prohibition of retrocession is directly related to the protection, promotion and progressive realization

30 Acording to Sarlet: “Th e Federal Constitutional Court has accepted this view, considering that the protection by means of the guarantee of property is presupposed by the circumstance that the holder of the right is assigned a legal position equivalent to that of private property and that, in the case of a any compensation, there would be a frontal collision with the principle of the rule of law, which, especially by including in the scope of protection of the guarantee of the ownership of economic rights in the sphere of social security, ended up leading to an extension of the concept of property in force in law private, from which the constitutional concept of property came to be almost completely disassociated.” (SARLET, 2008, p. 18). 31 SARLET, I. W.: A efi cácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12nd. edition. Revised, updated and expanded. Porto Alegre: Livraria do Advogado, 2015a. 32 ICESCR (United Nations International Covenant on Economic, Social and Cultural Rights) – “Article 2-1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. Th e States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.” (BRAZIL. Decree No. 591 of July 6, 1992). 33 ICESCR (United Nations International Covenant on Economic, Social and Cultural Rights) – “Article 4 – Th e States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” (BRAZIL. Decree No. 591 of July 6, 1992). 34 American Convention on Human Rights. Article 26: “Progressive Development – Th e States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientifi c, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.” (BRAZIL. Decree n. 678, dated November 6, 1992). 35 BÜHRING, M. A.: Direito Social: proibição de retrocesso e dever de progressão. In: Revista Direito &

122 of social rights, making it impossible to return to an earlier degree of social justice implementation, preserving the achievements achieved by society. In the present case, where social law is capable of reducing or eliminating its legal object by virtue of a retrogressive measure, Sarlet 36 maintains that, in examining the measure against the prohibition of retrocession, consideration must be given to the protection of the dignity of the human person and existential minimum, as well as the primacy of legal certainty and trust. It is inferred from the discussion of the subject that the Brazilian doctrine largely conceived of the close relation between prohibition of retrogression and legal certainty, notwithstanding all the social achievements under this principle. On the other hand, it preserves the essential core of the fundamental right, consubstantiated in the existential minimum and in the necessary protection of the dignity of the human person. 2.3 Reflections on the prohibition of retrocession in the protection and eff ectiveness of social rights in the outbreak of economic crisis In the domestic legal context, it is possible to deduce that the doctrine of eff ectiveness fi nds support in the interventionist state model. Th e Welfare State, aimed at the realization of social justice, undertakes to concretize the scope of protection of the norms of social rights, eff ecting the content of the constitutional text from the protection and promotion of social legal services. According to Nery da Silva,37 the realization of the Welfare State requires attention to its two roles: the fi rst understands the need to ingest in the state economy in order to direct it towards the fulfi llment of social objectives and goals; the second, in turn, concerns their responsibility, their duty and obligation toward realization of the minimum social benefi ts to those who need and depend on them. Accordig to Amaral,38 while the state’s commitment to the well-being of its people is commendable, it is clear that the acclaimed Social Justice is conditional on the availability and allocation of fi nancial resources. Th e eff ectiveness of the constitutional norm that advocates a social right depends on the State being able to dispose of a certain amount of its budget to guarantee the material equality of the collectivity. It is certain that, in the wake of an economic crisis, marked by declining production, unemployment and infl ation, the welfare state faces a scenery of imbalance between the fi nancial commitments assumed and the real fi nancial capacity to pay them, due to than the realization of the social justice ideology stands a risk of perishing. Factors such as the generalized increase in prices, the reduction of competitiveness in industry

Justiça, Porto Alegre, v. 41, n. 1, p. 56-73. jan-jun.2015. Available at: . Accessed on 1st Aug. 2016. 36 SARLET, I. W.: Direitos fundamentais a prestações sociais e crise: algumas aproximações. In: Espaço Jurídico Journal of Law, Joaçaba, Editora Unoesc, v. 16, n. 2, jul./dez. 2015, p. 459-488. 37 NERY DA SILVA, R. L.: O Estado contemporâneo e a força subjetiva dos direitos sociais. In: BAEZ, N. L. X.; GESTA, R. L.; MEZZAROBA, O. (Coord.).: Dimensões materiais e efi cácias dos direitos fundamentais. São Paulo: Conceito editorial, 2010, p. 188. 38 AMARAL, G.: Direito, escassez e escolha: em busca de critérios jurídicos para lidar com a escassez de recursos e as decisões trágicas. Rio de Janeiro: Renovar, 2001.

123 and the limitation of the budget contribution usually refl ect the adoption of management measures by the government, from economic policies to the contingency and elimination of expenses. According to Wiggers,39 the crisis scenery referred to in the present study comprises the public defi cit, which reveals “… the inability to aggregate values in macroeconomic terms, representing a negative budgetary result in the analysis of Revenues minus Expenditures.” It is a public debt, in which the State does not have the resources to meet its fi nancial commitments. At this point, it is important to record the conception of Sarlet,40 for whom post- modernity experiences not only a crisis in economic scope, but also of eff ectiveness and trust, refl ecting both on the ideal of the Welfare State and on Democracy itself and, consequently, on the eff ectiveness of social rights. When there are fewer resources for the maintenance of social achievements, the constitutional dirigisme itself and the ideal of social rights are in disrepute before the community. However, it is necessary to conclude that it is precisely in periods of economic crisis, where the helplessness reaches a more expressive part of the population, that it becomes necessary to promote and guarantee social legal benefi ts. In Alexy’s 41 outstanding lesson, “the extension of the exercise of fundamental social rights increases in economic crises. But it is precisely in those moments that there may be little to be distributed. [...] “. Th e outbreak of the crisis usually requires a high attention to the social security and labor demands, since the worker, subject to the helplessness due to the instability of the labor market, depends on the benefi ts and social guarantees to face the cost of his demands for a certain time. Th e economic recession experienced by Brazil was identifi ed in a report 42 promoted by the United Nations, according to which there is a worldwide trend of pessimistic prospects in the economic activity of the countries to be extended until the year 2017. It is reported from the report that the severe crisis infl ation, fi scal defi cit and interest rate hikes refl ected on population consumption and corporate confi dence, aggravating the recession initially expected in 2016, with growth prospects of 0.2% by 2017, through the adoption of political and economic measures. Naturally, the economic period experienced forced the federal government to a readjustment of budgetary planning, starting from the perspective that the resumption of growth depends on the restrictive allocation of resources. In this line, since the outbreak of the current economic crisis, retrogressive measures were adopted including ingressing social welfare gains and establishing parameters for costing the demands for benefi ts. Historically, the social security legal system bears some responsibility for the depletion of public funds and indebtedness of the State. Th e population demand for legal health,

39 WIGGERS, D. S.: Engenharia Macroeconômica. Blumenau: Legere/Nova Letra, 2014, p. 21. 40 SARLET, I. W.: Direitos fundamentais a prestações sociais e crise: algumas aproximações. In: Espaço Jurídico Journal of Law, Joaçaba, Editora Unoesc, v. 16, n. 2, p. 459-488, jul./dez.2015. p. 463-468. 41 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 513. 42 UNHCR.: World Economic Situation and Prospects 2016: Update as of mid-2016. Avaiable at: . Accessed on: 15 jul. 2016.

124 welfare and social security assets is unlimited and even if part of the benefi ts are borne by the benefi ciary itself, in the case of the social security system, the state’s capacity to maintain these social achievements may be compromised, especially in times of crisis economic development. For this reason, social security is a frequent target of retrogressive postures. Th e question that emerges from the outlined scenario, when a government bases the reduction or elimination of social legal benefi ts on budget constraints arising from economic crisis, concerns the eff ectiveness of social rights. To what extent would social rights be said to be safeguarded from the governmental manus? In order to ensure the eff ects of social rights and to promote their progression, in accordance with the International Covenants highlighted in this work, the principle of prohibition of social retrogression against regressive measures is enforceable. Th is principle the primacy of the eff ectiveness of constitutional norms and prevents government actors from simply failing to fulfi ll the Federal Constitution’s aspirations on the grounds that there is no budgetary availability, like it happende to Brazil in these last four days with the corruption crisis, since 2015, when it was discovered a very long problem of state budget accountability, started one decade ago, with huge system created inside several areas and departments of the government, destinated to promote deviation of money and other public resources, in some particular or ideologic parties favour. Th e safeguarding of social rights by the principle of prohibition of retrocession does not preclude certain social goals from being revised. Indeed, in Sarlet’s43 lesson, the principle turns to the protection of the essential core of social rights, not forgetting the maxim of eff ectiveness of social rights. Th us, the idea that the existence of limits to the limits of fundamental rights would represent an absolute prohibition of any change in the content of social rights would be disregarded. Social, economic and state dynamism requires a certain margin of freedom for the legislator, especially in the area of social security. According to the prohibition of retrocession and the canon of progressivity, the principle necessarily refl ects the dignity of the human person and the existential minimum, in view of the primacy of legal security and the protection of trust. Th e prohibition of retrogression therefore reveals an important mechanism for the eff ectiveness of social rights, while safeguarding the essential core of rights and, by way of refl ection, the dignity of the human person, based on legal certainty and the protection of trust. It is, in fact, a constitutional instrument that restricts the legislator’s ability to limit the scope of protection of social achievements, which is particularly relevant at times of state economic crisis.

43 SARLET, Proibição de retrocesso, 2018, and A efi cácia dos direitos fundamentais, 2015.

125 3. Final Considerations In a socioeconomic context characterized by public indebtedness and the subjection of a representative part of the population to social vulnerability, protection, eff ectiveness and the own existence itself of social rights is commonly subject to hard discussions, in the sense of absolute or relative rights, potentially restrictable, total or partially. Th is historical moment can generate repercussions in the eff ectiveness of fundamental rights, although it is not a recent phenomenon. In fact, in the specifi c case of social rights, their umbilical relationship, including the emergence of the welfare state, which intervenes in the economy to enable the most deprived sections of the population to realize the fundamental right to freedom, from of material equality conferred by means of benefi ts. Bound by the doctrine of eff ectiveness and constitutional authority, the constitutional text orders that the norms of fundamental rights enjoy maximum eff ectiveness, including social rights. Th us, the design of programmatic norms that are ineff ective is not useful. Combined with the conception of eff ectiveness, the fi nancial representativity of social rights must be situated. Since the realization of social rights requires, to a large extent, guarantee and the provision of legal services, the conditioning of the realization of those rights can not be separated from the fi nancial availability of the public treasury and the actual costs of those rights. However, even in times of economic crisis, where public indebtedness limits budgetary possibilities and social fragility requires more legal benefi ts, the protection and eff ectiveness of social rights should not be ruled out. To this end, the principle of prohibition of retrocession was enshrined in the Brazilian legal system and represents an important legal tool to safeguard social achievements. As a conclusion, the principle of prohibition or prohibition of retrocession, as a restriction to the limitation of fundamental rights, safeguards the range of legal social benefi ts won by the Brazilian people, by hindering the legislator, even in situations of economic crisis, the possibility of eliminate or totally eliminate the rights, with the essential core being safeguarded under the prism of the principle of the dignity of the human person, legal certainty, security and trust.

126 Part III.

CONSTITUTIONAL FRAMEWORK FOR NATIONAL IMPLEMENTATION OF HUMAN RIGHTS

10 Business Corporations and the Constitutionalisation of Private Law

Pavel Ondřejek * Th e post-war period is marked by an increased infl uence of constitutionally protected fundamental rights in legal orders of states. Human rights are no longer described as ‘monologues of a lawgiver’ as František Weyr, a leading Czechoslovak constitutional theorist, noted in 1937,1 but they operate as hard law-imposing duties on states as well as private entities. Th e process of constitutionalisation of law nowadays seems inevitable and infl uences various branches of law.2 In private law, the term ‘horizontal eff ect of fundamental rights’ covers several theories of the functioning of human rights, theories that are rather diff erent and it may be even doubtful whether all of them may be covered by the single notion of ‘horizontal eff ect’. Th e horizontality of rights is one of the aspects of the broader phenomenon of constitutionalisation of private law which is again a more concrete version of constitutionalisation and judicialisation of the entire legal order. In the beginning, I should explain what I mean by the ‘constitutionalisation of law’. First of all, it is an ongoing process, not a fi nal result of a completed process; secondly, it is a process of expanding the application of constitutional norms in various fi elds of law; and fi nally, this process has not only a normative but also its institutional aspect which consists in the (self-)reinforcing authority of constitutional or supreme courts. Constitutions play crucial roles not only because of their higher formal legal force in the hierarchy of sources of law, but also due to the programmatic character and value orientation of modern democratic states governed by law.3 Luca Siliquini-Cinelli and Andrew Hunchinson speak of the fact that ‘[v]arious national and supranational human rights instruments have been developed and implemented in order to transition

* Senior Lecturer, Faculty of Law, Charles University, Prague, Czech Republic. E-mail: [email protected]. ORCID: 0000-0001-6764-8993. Th is contribution was written within the Research Centre for Human Rights of the Char les University (Project No. UNCE 011). I would like to thank the participants of the workshop Business and Human Rights organized in Prague on 27 November 2017, where the previous version of this contribution was presented. 1 WEYR, F.: Československé ústavní právo. [Czechoslovak Constitutional Law]. Prague: Melantrich, 1937, p. 248. 2 MICKLITZ, H.-W.: Introduction. In: MICKLITZ, H.-W. (ed.): Constitutionalization of European Private Law. Oxford: Oxford University Press, 2014, p. 1. 3 In Germany this conception of state is referred to as materielles Rechtsstaat, i.e. a state which is not only governed by law and which regulates all important social relations by law, but also a state that acknowledges separation of powers, sovereignty of the people, protection of human rights and orientation of certain values (legal certainty, equality, human dignity, justice, solidarity, and certain others). See GERLOCH, A.: Teorie práva [Legal Th eory]. 6. Ed., 2013, Plzeň: Aleš Čeněk, 2013, p. 201ff . JAKAB, A.: European Constitutional Language. Cambridge: Cambridge University Press, 2016, p. 121.

129 society away from atrocity and callousness toward a more just and inclusive future.’4 Shortly after World War II, Gustav Radbruch, a prominent German legal theorist and representative of post-war non-positivism, connects human rights with morality in his (rather programmatic) inaugural speech on the occasion of his appointment to the position of dean of the Faculty of Law of the University of Heidelberg.5 Th e tradition of connecting human rights to morality continues until today in many constitutions, including the Czech one, which refers to natural rights of human beings in its preamble.6 Th e key question that I would like to address in this contribution is: To what extent shall the process of constitutionalisation transform private law? Th e answer to this question will not be descriptive, but rather a normative one. First of all, in order to fi nd the proper role of constitutional law in private law one has to choose among various ‘readings’ of the doctrine of constitutionalisation. On the one hand, there are robust theories such as the project of a total constitution described by Mattias Kumm,7 or second generation of constitutionalism, in which an ideal of limited government is being replaced by optimal government as argued by Alexander Somek8; on the other hand, a rather limited role may be ascribed to the process of constitutionalisation. Th e structure of my arguments will be the following: fi rstly, I will illustrate on a recent example regarding internet companies and how corporations exercise social power vis- à-vis individuals; therefrom follows the need to hold corporations accountable for violations of fundamental rights. In the second and third part, I will describe the position of corporations as duty-bearers and on the other hand as holders of fundamental rights. Th e fi nal part addresses the related problem of the over-constitutionalisation of law, and possible solutions of how to prevent this over-constitutionalisation in order to maintain principles of private law. Th e aim of this contribution shall be to argue that neither the total constitutionalism nor the total absence of the horizontal eff ect of fundamental rights constitutes a proper model of constitutionalisation.

4 SILIQUINI-CINELLI, L., HUTCHINSON, A.: Introduction. In: SILIQUINI-CINELLI, L., HUTCHIN- SON, A. (eds.): Th e Constitutional Dimension of Contract Law. A Comparative Perspective. Dordrecht: Springer, 2017, p. vii. 5 RADBRUCH, G.: Die Erneuerung des Rechts. In: RADBRUCH, G., KAUFMANN, A. (ed.): Gesamtausgabe. Band 3. Rechtsphilosophie III., Heidelberg: C. F. Müller, 1990, p. 108. ‘Die Rechtsissenschaft muß sich wieder auf die jahrtausendalte gemeinsame Weisheit der Antike des christlichen Mittelalters und des Zeitalters der Aufklärung besinnen, daß es ein höheres Recht gebe als das Gesetz, ein Naturrecht, ein Gottesrecht, ein Vernunftrecht, kurz ein übergesetzliches Recht, an dem gemessen das Unrecht Unrecht bleibt, auch wenn es in die Form des Gesetzes gegossen ist.’, 6 Th e text of the Preamble of the Charter of Fundamental Rights and Freedoms of the Czech Republic, adopted as a resolution of the Presidium of the Czech National Council of 16 December 1992, Constitutional Act Nr. 2/1993 Coll. begins as follows: ‘Th e Federal Assembly, […] Recognizing the inviolability of the natural rights of man, the rights of citizens, and the sovereignty of the law,…‘ English version available at: https://www.usoud.cz/fi leadmin/user_upload/ustavni_soud_www/Pravni_uprava/ AJ/Listina_English_version.pdf [accessed 12 February 2018]. 7 KUMM, M.: Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law. 7 German Law Journal, No. 4, 2006, pp. 341 – 370. 8 SOMEK, A.: Th e Cosmopolitan Constitution. In: MADURO, M., TUORI, K., SANKARI, S. (eds.): Transnational Law. Rethinking European Law and Legal Th inking. Cambridge: Cambridge University Press, 2014, pp. 97-98.

130 Corporations and their social power It seems appropriate to illustrate the process of constitutionalisation of private law on legal relations between an individual and a corporation because, in reality, corporations are not and never actually have been equal to individuals.9 Formal equality of these subjects before the law is based on a fi ction similar to that when a state enters into a private law transaction with an individual. Th e fi ction of equality corresponds to the liberal conception of the state which shall not limit people’s private domain (we may also refer to the German notion of Nachtwächterstaat – night-watchman state). Th e antipode to this idea represents a total state, a conception developed namely during the Nazi era in Germany which means that a state takes control over most aspects of life in a society.10 Nowadays this idea of state has been fully abandoned. An intermediate position represents the post-war notion of regulatory or welfare state, which refl ects the development of socio-economic rights (from which new entitlements fl ow for the individuals) as well as technological developments, environmental protection and many other tasks that states have been acquiring since the end of World War II.11 Current debates about the role of corporations vis-à-vis individuals usually mention their economic strength. Th e evidence of this fact may be found in the vast amount of academic literature. In 2014, the gross national income (GNI) of the Czech Republic, a State with more than 10.5 million inhabitants, approximately equalled the foreign assets of Vodafone Group plc, and foreign assets of the companies Volkswagen or Anheuser- Busch even exceed the GNI of the Czech Republic.12 Th is ‘fi nancial strength’ of juristic persons results in what is described in scholarly literature as social power,13 which is used by corporations in accordance with their primary aim, which is to maximise their profi t. According to Olivier de Schutter, concrete evidence of the economic power of corporations may be illustrated by their ability to threaten governments with closing businesses and moving to a diff erent country. If the corporation leaves, it usually causes unemployment and other negative social impacts in the impacted state.14 Governments therefore are inclined to off er certain incentives to corporations, in order to persuade them to continue their business activities in the territory of their respective states. Other states may try to off er better conditions for doing business which may start a spiral of reduced working conditions, environmental protection, tax exemptions etc.

9 KÜHN, Z.: Lidská práva v zajetí dvě stě let starých doktrín [Human Rights Imprisoned in 200 Years Old Doctrines]. In: AGHA, P. (ed.) a kol.: Budoucnost státu? [Th e Future of State?]. Prague: Ústav státu a práva AV ČR, Nakladatelství Academia, 2017, p. 158. 10 FORSTHOFF, E.: Der Totale Staat. Hamburg: Hanseatische Verlagsanstalt, 1933, p. 7. 11 AARNIO, A.: Th e Legitimacy Crisis in the Post-Industrial Society. An Outline for a Future Society. Rechtstheorie, Beiheft 13, 2000, pp. 281ff . 12 ONDŘEJKOVÁ, J., ONDŘEJEK, P.: Globalizace, stát a právo [Globalization, State and Law]. In: KYSELA, J., ONDŘEJEK, P. (eds.): Kolos na hliněných nohou? K proměnám státu a jeho rolí [Giant with Feet of Clay? Transformations of a State and Its Roles]. Prague: Leges, 2016, p. 137. 13 ISENSEE, J.: Anwendung der Grundrechte auf juristiche Personen. In: ISENSEE, J., KIRCHHOF, P. (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band V. Allgemeine Grundrechtslehre. 2nd ed., Heidelberg: C. F. Müller, 2000, p. 610. 14 DE SCHUTTER, O.: Th e Accountability of Multinationals for Human Rights Violations in European Law. In: ALSTON, P. (ed.): Non-State Actors and Human Rights. Oxford: Oxford University Press, 2005, p. 314.

131 It is thus not only the economic strength, but other activities of corporations as well that may aff ect the enjoyment of rights by individuals. A recent example concerns activities of major Silicon Valley corporations – Google, Facebook, and Twitter – with regard to the information that these companies help to disseminate. Th e question concerned on the one hand is national security issues and on the other hand limitations to the First Amendment right of free speech in situations of intentionally spreading false information. On 31 October 2017, the Subcommittee on Crime and Terrorism of the U.S. Senate Judiciary Committee held one of the hearings on the infl uence of Russia on the 2016 presidential elections. During this meeting representatives of the three above-mentioned corporations testifi ed before the Senators on the role of their corporations in preventing dissemination of false news about presidential candidates on the internet. Richard Burr, a Republican U.S. Senator and chairman of the above-mentioned Senate committee, addressed an appeal to the internet corporations: ‘Very clearly, this kind of national security vulnerability represents an unacceptable risk and your companies have responsibility to reduce that vulnerability… ’ while he continued: ‘Sixty percent of the U.S. population uses Facebook, a foreign power using that platform to infl uence how Americans see and think about one another is as much a public policy issue as it is a national security concern… Agents of a hostile foreign power reached into the United States using our own social media platforms and conducted an information operation intended to divide our society along issues like race, immigration and Second Amendment rights. … [T]o tear us apart they are using social media platforms that Americans invented in connection with the First Amendment freedoms that defi ne an open and democratic society’.15 It is somewhat ironic that social media that was some ten years ago praised as an intermediary of a new democracy and platforms for free speech and plurality, now show the potential to contribute to the undermining of democratic processes, including elections.16 For those reasons the issue of potential harm to people’s rights committed or facilitated by private corporations seems to be very topical. Th e question thus is, whether private corporations may have any obligations fl owing from fundamental rights of individuals.

Corporations as duty-bearers In most national legal systems as well as international human rights regimes, private entities are not directly bound by human rights norms. From this perspective, duty- bearers fl owing from human rights are states and other public entities, not private ones. Th is conclusion however concerns a rather narrowly interpreted concept of a duty.

15 Subcommittee on Crime and Terrorism of the U.S. Senate Judiciary Committee, hearing from 31 October 2017. Available at: https://www.youtube.com/watch?v=mDfAFzh6doM [accessed 23 November 2017]. 16 ‘Current investigation for example fi nds that computer programmes (bots) generated one out of every fi ve political messages posted on Twitter in America’s last presidential campaign.’, In: ‘Social Media and Politics’ Th e Economist, 4 November 2017, p. 22.

132 While direct duties are imposed on states or public-law entities, at least indirectly, private corporations are impacted by fundamental rights.17 One example concerns the situation of private law disputes decided by courts. Courts are usually bound to apply human rights and constitutionally consistent interpretation of law, which is the case of the Czech Republic, where the newly adopted Civil Code stipulates that ‘[e]ach provision of private law may be interpreted only in accordance with the Charter of Fundamental Rights and Freedoms and the constitutional order in general…’.18 From this follows that if corporations act in a way contrary to human rights obligations, they cannot enforce their rights against another individual before the court. Th is un-justiciability of legal conduct which is contrary to human rights norms (e.g. unlawfully discriminates) is one example of duties imposed on private entities. Another case deals with the legislature that is also bound by fundamental rights in the process of law-making.19 Laws thus express constitutional protection of individuals when they regulate their conduct. In private law, it may be achieved through setting of mandatory norms that cannot be superseded by an agreement of private entities to the contrary. Th ere exists another option according to which corporations and other private entities may limit their conduct if it constitutes a violation of fundamental rights, which is by way of voluntary self-limitation. Here we may refer to the practice of voluntary codes of conduct, voluntarily adopted rules of corporate social responsibility, etc. Despite the fact that some documents, namely those issued by NGOs or even the UN, for instance, the document entitled UN Guiding Principles on Business and Human Rights,20 advocate for relatively wide accountability in this fi eld, it must be emphasized that codes of conduct of corporations are still voluntary soft-law instruments that depend on the consideration of whether their adoption may be economically benefi cial for the corporation, e.g. due to positive publicity or comparative advantage against their competitors. From a broader perspective, I agree with Francesco Francioni’s claim that ‘the project of reconceptualising human rights obligations has become problematic’,21 namely for the following reasons: fi rstly, direct application of human rights norms on private actors

17 For various theories and approaches see RÜFNER, W.: Grundrechtsadressaten. In: ISENSEE, J., KIRCHHOF, P. (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band IX. Allgemeine Grundrechtslehre. 3rd ed., Heidelberg: C. F. Müller, 2011, p. 817. 18 Section 2 para 1 of the law Nr. 89/2012 Coll., Civil Code, quoted according to the offi cial English translation by the Ministry of Justice of the Czech Republic, available at: http://obcanskyzakonik.justice. cz/images/pdf/Civil-Code.pdf [accessed 23 November 2017]. 19 RÜFNER, W.: Grundrechtsadressaten…, p. 826. 20 UNITED NATIONS COMMITTEE ON HUMAN RIGHTS: Guiding Principles on Business and Human Rights. Implementing the United Nations ‘Protect, Respect and Remedy’ Framework. New York and Geneva: United Nations, 2011, developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises and fi nally endorsed by the Human Rights Council of the UN in its resolution 17/4 of 16 June 2011, available at: http://www.ohchr. org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Publications/GuidingPrinciplesBusinessHR_ EN.pdf&action=default&DefaultItemOpen=1 21 FRANCIONI, F.: Th e Role of the Home State in Ensuring Compliance with Human Rights by Private Military Companies. In: FRANCIONI, F., RONZITTI, N. (eds.): War by Contract. Human Rights, Humanitarian Law and Private Contractors. Oxford: Oxford University Press, 2011, p. 97.

133 appears to be problematic under the current law, namely because of the fact that the courts currently do not recognise the possibility of direct application of human rights standards on private actors. If this direct application should be followed it would require the adoption of a new set of rules. Secondly, the market failures over the last decade have undermined the belief in the markets’ ability to generate rules that would respect human rights.22 Th e situation of rather limited applicability of duties resulting from voluntary codes of conduct leads us directly to the other duty-bearers in cases where fundamental rights in private law relations are invoked, and it is the state through its positive obligations.23 Th e process of constitutionalisation covers both aspects of application of human rights, i.e. not only the issue of corresponding duties, but primarily the concept of fundamental rights themselves.

Corporations as right-holders As private entities, corporations are not only bound (as indicated above at least indirectly) to respect constitutional rights. Due to their private-law character, they may avail themselves of constitutional rights. Th is situation is obviously not without controversy, because classical theories of justifi cation of human rights do not apply to legal persons. Human rights according to most traditional ‘foundational’ theories are rights that are guaranteed to human beings from the perspective of their human nature (vulnerability, dignity, protection of health or life).24 None of these characteristics belongs to a corporation as an artifi cial legal person. Th e main argument why fundamental rights of corporations should be recognized is, in my opinion, the principle of equality. Both natural and juristic legal personalities are after all creations of law.25 If we acknowledge fundamental rights of legal persons we stress thereby the uniform concept of legal personality. If we turn our attention to a model legal relation between an individual and a corporation, both sides of the legal relation may use their fundamental rights as an argument. In this situation, a connection between both these rights might be described. As mentioned above, corporations have certain duties to respect human rights of other individuals, but at the same time corporations like Facebook, Google, or Twitter may invoke their own constitutional rights, because they are not public authorities but companies operating in the private sphere. If corporations invoke their rights (free speech, right to engage in enterprise, etc.), the possibility of invoking a confl icting right

22 Ibid., pp. 97-98. Th e last argument has been proven even more valid after the last major global fi nancial crisis, which began in 2008. 23 From a number of academic works dedicated to this topic I would mention: ISENSEE, J.: Das Grundrecht als Abwehrrecht und als staatliche Schutzpfl icht. In: ISENSEE, J., KIRCHHOF, P. (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band IX. Allgemeine Grundrechtslehre. 3rd ed., Heidelberg: C. F. Müller, 2011, pp. 413-568. 24 BROZ, J., ONDŘEJEK, P.: Human rights limits on state power. In: KYSELA, J. (ed.): State as a Giant with Feet of Clay. Frankfurt am Main: Peter Lang GmbH, 2014, p. 105. 25 BERAN, K. Osoba jako „bod přičitatelnosti“ [A Person as a “Point of Imputation”]. 157 Právník, Nr. 6, 2017, p. 504.

134 depends on the solution to the confl ict between the two. Th is constitutes what I call an analogy between communicating vessels: if corporations had no rights, any rights of natural persons (human beings) would trump corporations’ claims, and vice versa, the more rights will be acknowledged in the corporations, the fewer situations shall occur in which the countervailing individual rights of natural person shall prevail. At the same time, we must bear in mind that if fundamental rights are granted to a legal person, specifi c people always stand behind a legal person and they are the ones who ultimately benefi t from the protection of the fundamental rights of a legal person. Consequently, protection of fundamental rights of a legal person can serve as a means of protecting other, e.g. economic, interests. 26 As a matter of fact, in the 1990s the Czech Republic had a similar experience with international investment treaties, which were drafted unfavourably for the state and often resulted in the duty to compensate the damage caused by failed investments. A related issue pertains to the above-mentioned social and economic power of certain legal persons (especially transnational corporations) – if such persons successfully claim their fundamental rights, this logically only further increases their strength. All this suggests that contrary to the mainstream point of view, not only the prospects of the process of constitutionalisation of private law but also the process of limiting the constitutionalisation needs to be addressed.

The problem of over-constitutionalisation of law Th e issue of limits of constitutionalisation is rather unresearched but seems quite topical. I will try to illustrate this problem, which I will call the ‘over-constitutionalisation of law’, in the following examples from the Czech Republic: In 2012, Czech Railways, a state-owned company operating trains in the Czech Republic, set up special compartments for women. Th e offi cial reason was to enhance the safety for women travelling alone especially in evenings and nights. On the other hand, it must also be mentioned the economic aim to attract female passengers in order to generate more profi t. After introducing the compartments for women, Czech Railways was criticized for alleged discrimination against men who were not allowed to use them. But as a matter of fact, men could only be asked to leave these compartments when there were other vacant seats on the train; otherwise they were allowed to remain seated in the women compartments.27 A certain problem might however be seen in the fact that the claimed protection of women is based on the stereotype of men as potential aggressors.28 Another issue concerned the practice of some Czech banks who provided loans for citizens who reached a certain age. Th e case involved a bank in which it was impossible

26 Klaus Stern refers in this respect to the protection of a natural person wearing the “clothes” of a juristic person – STERN, K. et al.: Das Staatsrecht der Bundesrepublik Deutschland, Band III/1, Allgemeine Lehren der Grundrechte. Mnichov: C. H. Beck, 1988, p. 1088. 27 See e.g. statement of the press secretary of Czech Railways Company available at: https://ekonomika.idnes. cz/zenska-kupe-ve-vlacich-ceskych-drah-dum-/eko-doprava.aspx?c=A140821_121145_eko-doprava_spi [accessed 13 February 2018]. 28 KVASNICOVÁ, J., ŠAMÁNEK, J. a kol.: Antidiskriminační zákon. Komentář. [Antidiscrimination Act. A Commentary.] Prague: Wolters Kluwer, 2015, p. 241.

135 to obtain a loan if the customer was more than 70 years old. Th e obvious economic reason (short life expectancy and possible economic loss) was evaluated by the Czech Ombudsman who assessed this practice as discriminatory with the argument that the fl at rejection of applications violates dignity of old persons.29 During the Ombudsman’s investigation the bank abandoned this practice. Th e fi nal example concerns the case of bank charges.30 In years 2011 and 2012, tens of thousands of citizens joined initiatives leading to actions against banks31 to have maintenance charges for loan accounts returned. Th e initiative was inspired by a German case of 2011 in which the German Federal Court of Justice (‘FCJ’) ruled against the provisions stipulated in the banks’ business terms and conditions which imposed maintenance charges on loan accounts.32 Th e German FCJ interpreted the bank charges as a subsidiary term for which no reciprocal consideration was provided by the bank and thus rendered them illegal. In the Czech Republic, the case was fi nally decided by the Czech Constitutional Court (‘Czech CC’), which means that complainants had to argue, that the case has constitutional dimension. Th ey tried to subordinate consumer protection to the constitutional principle of equality in the material sense, and to restrict the autonomy of will with the principle of equity or fairness.33 At the very beginning of its reasoning, the Czech CC pointed out that, despite fi nding ourselves in an alleged human rights era in which the scope of fundamental rights is very broad, it is very important to identify the constitutional dimension of the case. In response to the arguments advanced by the petitioner, the Court noted that consumer protection, albeit an important principle of both national and European law, ‘does not belong to the fundamental rights and freedoms individually guaranteed by the Constitution, […] but rather is an objective of the state policy, set out in the Constitution and subject to specifi c consumer protection regulation under general law.’34 With this reasoning the Court fi nally dismissed the complaint as unfounded. All of the above-mentioned cases show that two issues on how to prevent the over- constitutionalisation of law may be identifi ed. Firstly, it is the defi nition of the scope of fundamental rights, and secondly it is the fi nding of a proper balance between fundamental rights and countervailing principles of private law or public interests. Th ere exist rational arguments that support that the cases should be regulated by private law, where the principle of autonomy plays an important role. According to the principles of private law, neither side of the contract should be forced to act in a certain way or refrain from some conduct. Th e broad reading of anti-discrimination law poses the problem of negating the very foundations of private law.

29 Available at: https://eso.ochrance.cz/Nalezene/Edit/1332 [accessed 24 November 2017]. 30 In more detail discussed in ONDŘEJEK, P.: A Structural Approach to the Eff ects of Fundamental Rights on Legal Transactions in Private Law. 13 European Constitutional Law Review, Nr. 2, 2017, pp. 284-305. 31 In the Czech Republic, there is not the possibility to fi le a class action similar to that according to the U.S. law. 32 Decision of the IXth panel of the German Federal Court of Justice (BGH) of 7 June 2011, ref. IX ZR 388/10. 33 Judgment of the Constitutional Court ref. III. ÚS 3725/13, para. 7 of the reasoning. However, the constitutional dimension of the case was not discussed in great detail. It was not possible to draw inspiration from Germany because the case was not heard before the Federal Constitutional Court. 34 Ibid., para. 42 of the reasoning.

136 Conclusion Fundamental rights of corporations refl ect social development. Th ere may be diff erent opinions about this issue: either we embrace it as another layer of protection of human rights; we critically see this regulation as an example of ‘trade-related market-friendly human rights’; or as an example of the degradation of human rights.35 At the same time, it is still the primary role for states not only to respect but also to fulfi l and protect human rights within their territories. If we agree with van der Walt that the horizontal eff ect of fundamental rights constitutes a revolution, it must also be remembered that history teaches us that many revolutions ended in dictatorships. If we want to avoid a ‘horizontal eff ect dictatorship’, in which ordinary laws and sub-constitutional principles do not matter, we should prevent the legal order from over-constitutionalisation. It has already been argued that constitutionalisation has its institutional level of judicial self-empowerment vis-à-vis other branches of government. Th e solution may lie in decisional minimalism,36 i.e. practice, advocated by U.S. legal scholar Cass Sunstein, according to which judicial decisions should be created narrow and rather shallow, not deep and broad. In other words, courts should leave all the things unnecessary for reaching the fi nal conclusion undecided. At the same time, a proper regard should be given to principles of private law, or countervailing public interests, in order to reach an adequate model of eff ects of constitutional rights in legal orders, which is neither robust like total constitutionalism, nor too limited.

35 KARAVIAS, M.: Corporate Obligations under International Law. Oxford: Oxford University Press, 2013, pp. 181. 36 SUNSTEIN, C.: Foreword: Leaving Th ings Undecided. Th e Supreme Court 1995 Term. 110 Harvard Law Review, 1996, p. 7.

137 11 Business and the Building of Women’s Labour Market in Brazil Through Aff irmative Action Measures1

Narciso Leandro Xavier Baez 2

Th aís Janaina Wenczenovicz 3

1. Introduction Th is study aims to discuss the aspects regarding the affi rmative action measures to protect women’s labour market in Brazil. It intends to analyse the Brazilian public policies developed so far and how eff ectively they have regarded full gender equality. Th e study starts analysing the theoretical and controversial aspects of the affi rmative action measures’ concept. Furthermore, it shows how Brazilian constitutions have treated the affi rmative action measures, the country’s legal order evolution and its importance to Brazilian constitutional theory. Afterwards, there is a review of the Brazilian women historical affi rmation concerning isonomy, considering the cultural diffi culties in appraising female gender in Brazil. Besides, there is an inquiry into the main public policies aimed at gender equality and their current context.

1 Th is chapter results from an international research project named: “Th e existence and effi cacy of affi rmative action measures in the UK, South Africa, China, India, Latin America, and Brazil”, developed by “Grupo de Pesquisa em Rede Internacional Teorias da Justiça no Âmbito da Efetivação dos Direitos Fundamentais” (Research group on International Network, Th eories of Justice to Achieve Fundamental Rights), a group focused on international research at the Graduate Education Program in Law off ered by “Universidade do Oeste de Santa Catarina”, in partnership with “Pontifi cia Universidade Católica do Rio Grande do Sul”, Middlesex University (United Kingdom), “Universidad Autónoma de Chihuahua” (Mexico), and “Universidad de Talca” (Chile). 2 Chief Academic Offi cer at the “Excellence Centre in Law” and the LL.M Degree in Law at “Universidade do Oeste de Santa Catarina”. Holds a Ph.D. in Fundamental Rights’ Eff ectiveness Mechanisms from “Universidade Federal de Santa Catatina”. Holds a doctorate degree in Fundamental Rights and Contemporary Rights with a foreign trainee scholarship (PDEE Capes) at the Centre for Civil and Human Rights at Notre Dame University (Indiana, USA, from February 2011 to July 2011). Holds a LL.M degree in Public Law (UNESA), a graduation degree in Civil Procedure and has been working as a Federal Judge (4th Region) since 1996. 3 Docente adjunta/pesquisador sênior da Universidade Estadual do Rio Grande do Sul/UERGS. Professora Titular no Programa de Pós-Graduação em Educação/UERGS. Professora Colaboradora no Programa de Pós-graduação Stricto Sensu em Educação da Universidade Estadual do Paraná- UNIOESTE. Professora colaboradora no Programa de Pós-Graduação Stricto Sensu em Direitos Fundamentais/UNOESC. Avaliadora do INEP - BNI ENADE/MEC. Membro do Comitê Internacional Global Alliance on Media and Gender (GAMAG) - UNESCO. Líder do Grupo de Pesquisa CNPq/UERGS Direitos Humanos e Justiça: perspectivas decoloniais.

138 Finally, there is the discussion about the obtained results from the affi rmative action, focusing on the recent dichotomy of its use to ensure full equality (constitutional law) versus its disproportion or even some kind of abuse of use, commenced by it.

2. The Concept of Aff irmative Action Measures When studying affi rmative action measures, fi rstly it is important to consider they are tools of achieving full equality among people, whenever society shows itself incapable of achieving cultural maturity to attend social equity, free of discrimination. Affi rmative action measures are necessary since Western occidental societies have adopted the Rule of Law system, in which the fundamental right to freedom is greater than the rights to equality and fraternity.4 Th erefore, there is the concept of formal equality before the law,5 which does not take into consideration the existing inequalities, idealises the premise everyone is equal under the law, and it should be neutral when applied.6 Th is system, however, has contradicted itself since it does not solve discriminatory situations over time. Th e natural inequalities (physical, psychological, social, and economic inequalities, among others) prove it is materially impossible to provide equal opportunities to people. Merely formal equality before the law does not ensure full equality, considering it does not perceive individuals’ limiting aspects; it only serves a specifi c group of people to the detriment of other groups. After perceiving this distortion, at the beginning of the 20th Century, there was the creation of a new concept of equality, substantive equality, adopted in the Social Rule of Law system. Th e new concept contained affi rmative equality rules, providing unequal treatment to unequal people,7 aiming to achieve full equality. Regarding the concept, the affi rmative action measures’ historical and dynamic characteristics do not permit the creation of a closed concept, because it has been developing through occidental history.8 Even the titles represent an open concept; in Brazil, it is possible to fi nd the expressions as “fi rst order discrimination,” “benign discrimination,” “preferential treatment” among others.9

4 BESTER, G.M. Principiologia constitucional e ações afi rmativas: em prol da inclusão das pessoas idosas no Brasil-de Chronos a Kairos. Espaço Jurídico Journal of Law. Joaçaba, V 7, n. 2, jul/dez, 2016, p. 116. 5 MELLO, C. A. B. O conteúdo jurídico do princípio da igualdade. 3. ed., 4. tir. São Paulo: Malheiros, 1998, p. 10. 6 GOMES, J. B. B. Ação afi rmativa e princípio constitucional da igualdade. O direito como instrumento de transformação social. A experiência dos EUA. Rio de Janeiro: Renovar, 2001, p. 2. 7 HELLER, A. Além da justiça. Rio de Janeiro: Civilização Brasileira, 1998, p. 17-18. 8 BREST, P; LEVINSON, S; BALKIN, J. M.; AMAR, A.R. Processes of Constitutional decisionmaking. 4 ed., Gaithersburg: Aspen, 2000, p. 899. 9 RIOS, R. R. Direito da Antidiscriminação: discriminação direta, indireta e ações afi rmativas. Porto Alegre: Livraria do Advogado, 2008, p. 157-8.

139 Affi rmative action measures’ notion commonly associates to public or private policies’ promotion, coercive or voluntary, aimed at certain discriminated social groups 10 due to their peculiarities (concrete or fi ctional), purposing to correct the existing inequality among those groups, and the other society members, through economic, social or legal inclusion.11 Th e fi rst controversy lays on whether or not considering private actions as affi rmative action measures. Th e ones, who understand only public policies may enforce affi rmative action measures, denying any private initiative, assert that, historically, the law is the main instrument of imposing affi rmative action measures.12 Th e state creates temporary rules that privilege some discriminated groups. Regarding this initiative, affi rmative action measures cannot derive from private initiative or any other means but the law. In this sense, an affi rmative action measure is a government response to situations civil society is not capable of solving. Th erefore, whenever civil society creates mechanisms of reducing or extinguishing social inequality, what truly happens is a collective change in social behaviour, instead of an affi rmative action measure itself. However, the majority of authors consider affi rmative action measures can derive from private initiative actions aimed at achieving full equality and diminishing all kinds of discrimination.13 Th us, they declare these actions may raise from a businessperson that might invent a plan or an action intended to diminish social inequality and benefi t historically excluded groups of people.14 However, it would not arise from a cultural change in society, but it would come from private initiative, a portion of society, steering to fi ght discrimination through affi rmative action measures. Achieving affi rmative action measures is another polemic aspect. Some authors sustain these measures only represent a defi nite and eff ective solution when imposed by the law.15 Th ey explain the awareness campaigns, tax credits, and other non-coercive measures usually cannot achieve the same results as legal measures can. Th e idea of affi rmative action measures being eff ective only when imposed by law is not true in Brazil, because the creation of a large number of affi rmative action measures in its territory occurred due to civil rights movements, for instance, those developed by groups that have been discriminated by their sexual orientation.16 Th ose groups have promoted not only awareness initiative actions, but also have fought for their rights, until they had the legal provision of their rights, defi nitely solving their discrimination

10 CRUZ, Á. R. S. O direito à diferença. Belo Horizonte: Arraes Editores, 2009, p. 164. 11 PISCITELLI, R. M. O Estado como promotor de ações afi rmativas e a política de quotas para o Accesso dos negros à universidade. Curitiba: Juruá, 2009, p. 64-5. 12 RIBEIRO, R. F. S. Estudo Sobre as Ações Afi rmativas. Revista SJRS. Rio de Janeiro, v. 18, n. 31, Agosto de 2011, p. 170. 13 GOMES, J. B. B. Ações Afi rmativas e Princípio Constitucional da Igualdade: o direito como instrumento de transformação social - A experiência dos EUA. Rio de Janeiro: Renovar, 2001, p. 06. 14 BERGMANN, B. In defense of affi rmative actions. New York: BasicBooks. 1996, p. 7. 15 RIBEIRO, R.F.S. Estudo Sobre as Ações Afi rmativas. Revista SJRS. Rio de Janeiro, v. 18, n. 31, Agosto de 2011, p. 170. 16 ALVAREZ, S. A globalização dos feminismos latino-americanos. ALVAREZ; DAGNINO; ESCOBAR (Orgs.). Cultura e política nos movimentos sociais latino-americanos. Belo Horizonte: Editora UFMG, 2000, p. 385.

140 issues. For instance, there is the acknowledgement of civil partnership (and its inheritance rights), established not under the law, but as the Federal Supreme Court has upheld.17 On the other hand, there are other affi rmative action measures under the law, aimed at disabled people, as the right to a proper education system, adapted to their needs. Nevertheless, their rights are not eff ective, considering most schools in Brazil do not show conditions to implement the regulation.18 Th erefore, affi rmative action measures aim at achieving freedom and equality among the people in society, but the discussion of those principles shall observe fraternity aspects, as Peter Häberle assesses.19 Th e fraternal optics represents the goal of affi rmative action measures, considering they develop tolerance, altruism, and diversity respect, even if imposed by law. Th ese measures shall be provisional, considering they serve to implement exceptional protection, giving privileges to a group of people aff ected by discrimination, aiming to prevent these actions from getting undesirable and developing fraternity gradually. Whenever the groups of people overcome that social aspect, the measures must disappear, so that society’s maturity can take its place. Not observing the temporary aspect might create discrimination, the action’s purpose opposite.20 Th us, every affi rmative action measure must establish its fi nal term (or a further analysis regarding its maintenance period) by its implementation. Brazilian courts of law also recognise the actions’ temporary aspect as a fundamental tool in achieving their eff ectiveness, according to what they have upheld.21 Case law assesses the maintenance of unequal rights to a specifi c group of people, after achieving their purpose, should create a situation of unjustifi ed discrimination towards the other society members. Manoel Gonçalves Ferreira Filho 22 illustrates the affi rmative action measures must fulfi l fi ve basic requirements to adjust to Brazilian constitutional system: 1) to clearly identify the favored group; 2) to off er a proportional and reasonable advantage, capable of neutralizing the inequality perceived; 3) to aim only at correcting the social inequality situations; 4) their eff ectiveness shall be at the lower possible level of onerosity to the other members of society; 5) at last, they must be temporary actions, immediately repealed once they achieve their results. Moreover, affi rmative action measures may arise from judicial activism, which is the Judicial Branch response to the social claims, acting proactively to interfere in the

17 BRASIL. Supremo Tribunal Federal. Ação Direta de Inconstitucionalidade (ADI) 4277 e Arguição de Descumprimento de Preceito Fundamental (ADPF) 132. 2011. 18 CRUZ, Á. R. S. O direito à diferença. Belo Horizonte: Arraes Editores, 2009, p. 215. 19 HÄBERLE, P. Libertad, igualdad, fraternidad: 1789 como historia, actualidad y futuro del Estado constitucional. Madrid: Trotta, 1998. 20 MÈLIN-SOUCRAMANIEN, F. Le Principle d’égalité dans la Jurisprudence du Conseil Constitucionnel. Paris: Economica, 1997, p. 206-7. 21 BRASIL. Recurso Especial n. 1.132.476/PR. Upheld in October, 13th, 2009. RSTJ, v. 18, p. 751. 22 FERREIRA FILHO, M. G. Aspectos jurídicos das ações afi rmativas. Revista do Tribunal Superior do Trabalho. Porto Alegre, v. 69, n. 2, Julho-Dezembro, 2003, p. 74.

141 other Branches’ political decisions.23 In this case, judicial measures that determine positive discriminatory actions work as redistributive, repairing or restoring policies.24 Th e security rights to same-gender couple civil partnerships, upheld at the highest level, the Federal Supreme Court, was the leading case. After these considerations regarding positive discriminations in Brazil, in this paper, the expression “affi rmative action measures” shall represent the temporary tools to promote social inclusion,25 whether from the private or public initiative, to compensate those in unequal situations by providing them unequal and even preferential treatment, to guarantee full equality among all.

3. Brazilian Constitutions and Aff irmative Action Measures Brazilian constitutionalism has always focused on formal equality,26 which is possible to perceive by briefl y reading the seven constitutions in its history. Th e monarchic constitution of 1824, granted by a slavery society, has established the Civil Code and the Criminal Code both based on equality.27 Th e 1891 Constitution (the one that has established a Republic in Brazil) assured everyone is equal before the law,28 due to the bourgeois revolution idea, but did not add elements in this sense.29 Th e 1934 Constitution allowed women to vote and changed the democratic system, by substituting liberal democracy for social democracy, an important advance regarding equality. Legislators kept the equality before the law, but inserted in the legal text there would be no distinction or privileges in treatment caused by birth, race, gender, people’s profession or their parents’ occupation, social position, wealth, religious belief or political preferences.30

23 MELLO, M. A. M F. Ótica Constitucional – a Igualdade e as Ações Afi rmativas. Discriminação e Sistema Legal Brasileiro - Seminário Nacional em comemoração do Dia do Zumbi dos Palmares. Anais Tribunal Superior do Trabalho: Brasília, 2001, p. 27-28. 24 GOMES, J. B B. Ação afi rmativa e princípio constitucional da igualdade. O direito como instrumento de transformação social. A experiência dos EUA. Rio de Janeiro: Renovar, 2001, p. 32. 25 PIOVESAN, F. Ações Afi rmativas da Perspectiva dos Direitos Humanos. Cadernos de Pesquisa, v. 35, n. 124, p. 49, jan./abr. 2005. 26 KAUFMANN, R. F. M. Ações Afi rmativas à brasileira: necessidade ou mito? uma análise histórico-jurídico- comparativa do negro nos Estados Unidos da América e no Brasil. Porto Alegre: Livraria do advogado, 2007, p. 233. 27 Article 179. Th e Brazilian citizens’ civil and political rights’ inviolability, based on freedom, individual security and property, is guaranteed by the Imperial Constitution as follows: XVIII: It shall be organized the Civil and Criminal Codes, both based on justice and equality. BRASIL. Constituição Federal de 1824. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao24.htm. 28 ISHAY, M. Th e history of human rights: from ancient times to the globalization era. California: University of California Press, 2004, p. 114. 29 Article 72. Th e Constitution assures all Brazilians and foreign residents the inviolability of the rights of freedom, individual security and property, as follows: Paragraph 2. Everyone is equal under the law. BRASIL. Constituição Federal de 1824. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/ constituicao24.htm. 30 Article 113. Th e Constitution assures all Brazilians and foreign residents the inviolability of the rights of freedom, subsistence, individual security and property, as follows: 1) everyone is equal under the law. Th ere shall not be privileges or distinctions based on birth, gender, race, profession (own or the parents’)

142 However, this historical progress lasted until 1937, when President Getúlio Vargas staged a coup d’état (supported by militaries) arguing a communist infi ltration was about to take place in Brazil and granted the new Constitution, a fascist one. Th erefore, there was a constitutional setback, and again, there was only formal equality under the law in Brazil.31 In 1934, Brazil created the fi rst infra-constitutional law regarding labour (the Consolidation of Labour Laws), an important contribution to diminishing social inequalities in labour relations, guaranteeing a series of unprecedented rights to Brazilian workers. Among those, the workers’ entitlements included working regular hours, minimum wage, and statutory leave; therefore, they were important tools to achieve equality in labour relations. In 1945, when Brazilian soldiers returned from the World War II, after defeating the “Axis” and their fascist and Nazi ideas, a new national movement arose in Brazil, aiming at creating a National Constituent Assembly to legislate a new constitution. Th us, Brazil promulgated its fi fth constitution in 1946, containing formal equality under the law, which represented a slight contribution to equality, considering the prohibition of any advertisement containing biased ideas against race or social status.32 Brazil signed the United Nations Universal Declaration of Human Rights in 1948, committed to joining freedom and equality, prohibiting any discrimination. Th at same year, Brazil ratifi ed the Convention on the Prevention and Punishment of the Crime of Genocide, compromised at fi ghting intolerance regarding origin, ethnicity, race, or religion.33 An intense social and political collapse happened in Brazil at the beginning of the 1960s, resulting in the 1964 military coup that revoked the current constitution. Military dictatorship installed in Brazil and lasted for a long period, marked by repression, censorship and human rights violation. Paradoxically, that same year Brazil signed the “Discrimination (Employment and Occupation) Convention” (No. 111), by the International Labour Organization, aimed at combating against all types of labour discrimination. Th e sixth Brazilian constitution dates from 1967, after three years of military government, containing power centralisation to the Military President. It diminished one self’s autonomy and permitted the suspension of the constitutional rights. However, it reassured formal equality under the law, 34banning discrimination concerning gender,

social class, wealth, religious creed or political views. BRASIL. Constituição Federal de 1824. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao24.htm. 31 Article 122. Th e Constitution assures all Brazilians and foreign residents the rights of freedom, individual security and property, as follows: Paragraph 2. Everyone is equal under the law. BRASIL. Constituição Federal de 1937. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao37.htm. 32 Article 141. Th e Constitution assures all Brazilians and foreign residents the inviolability of rights of life, freedom, individual security and property, as follows: Paragraph 1. Everyone is equal under the law. […] Paragraph 5. It shall not be tolerated propaganda involving war, violent acts to subvert the social and the political order, or of discrimination against race or social class. BRASIL. Constituição Federal de 1946. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao46.htm. 33 PIOVESAN, F. Ações Afi rmativas da Perspectiva dos Direitos Humanos. Cadernos de Pesquisa, v. 35, n. 124, jan./abr. 2005, p. 45. 34 Article 150. Th e Constitution assures all Brazilians and foreign residents the inviolability of rights of life, freedom, security and property, as follows: Paragraph 1. Everyone is equal under the law without

143 race, labour, religious creed and political views; it also established constitutional punishment against prejudice. Regarding infra-constitutional laws, the Press Law came into eff ect in 1967 and remained so until 2009. It established intolerance against advertisement with race or social status biased content and established racism as a crime in Brazil.35 In 1969, the “International Convention on the elimination of all forms of racial discrimination” came into eff ect in Brazil, then “positive discrimination”36 had legal provision. From that historical moment on, the state was obliged to create special and temporary measures to ensure specifi c race and ethnic groups could equally enjoy their human and fundamental rights. Th ere was only formal equality in Brazil until its sixth constitution. Th ere was no material or real legal essence to equality and no initiatives regarding affi rmative action measures. Nonetheless, in 1988 the current constitution started a new and important moment that, on the one hand, brought the Rule of Law State and, on the other hand, a series of rules containing immediate and programmatic objectives to bring full equality to society. Th e contemporary constitutional rules consist of a complex system, imposing obligations to the state and the society, aiming at promoting equally orientated policies,37 without discriminatory actions related to origin, race, gender, skin colour, age and any other forms of discrimination. Th e major advance in this constitution is the fact it has gone over the formal equality dogma of simply prohibiting discrimination, and imposed the state and the society an active role in fi nding solutions to eradicate inequalities and promote the general welfare.38 Th e constitution aims not only at banishing discrimination, it goes beyond, setting a new affi rmative ideal, with objectives Brazil must achieve to build a fraternal, pluralist and unbiased society.

distinction of gender, race, occupation, religious creed and political views. Prejudice shall be punished by the law. BRASIL. Constituição Federal de 1967. Available at: http://www.planalto.gov.br/ccivil_03/ constituicao/constituicao67.htm. 35 Article 1. Paragraph 1. It shall not be tolerated propaganda involving war, violent acts to subvert the social and the political order, or of discrimination against race or social class. Article 13. It is a felony to explore or use communication tools to the following articles. Article 14: To do propaganda of war or processes to subvert the political ans social order or of discrimination against race or social class. BRASIL. Constituição Federal de 1967. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao67.htm. 36 BRASIL. Decreto 65.810, de 8 de dezembro de 1969. Artigo I, parágrafo 4. Available at:: http://legis. senado.gov.br/legislacao/ListaTextoIntegral.action?id=94836. 37 SARLET, I. W. Affi rmative Action and Th e Fight Against Inequalities in Brazil: Th e case of race and equal access to higher education. DUPPER, Ockert; KAMALA, Sankaran (ed). Affi rmative Action: A View from the Global South. CIDADE: Sun Press, 2014, p. 202. 38 Th is is how the current Constitution regulates full equality among people through affi rmative action measures: Article 3. Th e fundamental objectives of the Federative Republic of Brazil are: I – to build a free, just and solidary society; […] ; III – to eradicate poverty and substandard living conditions and to reduce social and regional inequalities; IV – to promote the well-being of all, without prejudice as to origin, race, sex, color, age and any other forms of discrimination. BRASIL. Constituição Federal de 1988. Available at: http:// www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm. (English version at http://www.stf. jus.br/repositorio/cms/portalStfInternacional/portalStfSobreCorte_en_us/anexo/Constitution_2013.pdf).

144 Women and men are now equal regarding rights and obligations, with articles that contain protection to women’s labour market, through specifi c incentives regulated by infra-constitutional laws. Furthermore, there is a clear positive discrimination rule regarding women’s retirement in the 1988 Constitution: in public or private labour market, they retire fi ve years earlier than men do, and their contribution period is shorter than the one to men.39

4. The Contextualization of Gender Aff irmative Action Measures’ in Brazil To understand the development of the fi rst gender affi rmative action measures in Brazil it is necessary to know some peculiar aspects regarding the reality in Brazil compared to other countries. Th e measures to achieve full equality between women and men are not easy to implement, even though the 1988 Constitution created actions to build a fair and equal society. A study published in 2011,40 supported by UN Women, showed that women are 44% of workers in Brazil. However, they still receive a lower salary than men do, regardless their qualifi cation or work hours. Numbers are astonishing. For example, in 2008, Afro-Brazilian women income was R$ 383,00; Afro-men gained R$ 583,00; white women received R$742, and white men made R$1.181.41 Even women in high positions suff er from biased actions, especially in politics.42 Even though the country had its fi rst female president, in 2011, it does not mean gender equality is not a problem in Brazil. Statistics show that, between the years 2006 and 2009, only 29% of women got leadership positions in organisations. Regarding politics, the Legislative Branch has the most visible diff erence between men and women. In 2010, the Senate had 85,19% of men, and they were 91,23% of the Chamber of Deputies. Brazil’s Supreme Court also shows discrimination, because only three women have been the Judges in the Judiciary Branch’s history. 4.1 The history of Brazilian Women’s Equality Brazilian women are discriminated not only in social aspects but also in politics and legal aspects. Th ey occupy less important jobs and secondary functions, compared to the

39 Th e articles 5, I; 7, XX; 40, III, a and b, and 201, §7º, I and II, all from 1988 Constitution, contain diff erent equality forms between men and women, with a new system of positive discrimination toward women. BRASIL. Constituição Federal de 1988. Available at: http://www.planalto.gov.br/ccivil_03/ constituicao/constituicaocompilado.htm. (English version at http://www.stf.jus.br/repositorio/cms/ portalStfInternacional/portalStfSobreCorte_en_us/anexo/Constitution_2013.pdf). 40 BRASTED, L. L.; PITANGUY, Jacqueline (Org.). O Progresso das Mulheres no Brasil 2003–2010. Rio de Janeiro: CEPIA; Brasília: ONU Mulheres, 2011. 41 BRUSCHINI, C.; LOMBARDI, M. R.; MERCADO, C. M.; RICOLDI, A. Trabalho, Renda e Políticas Sociais: Avanços e Desafi os. BRASTED, L. L.; PITANGUY, J. (Org.). O Progresso das Mulheres no Brasil 2003–2010. Rio de Janeiro: CEPIA; Brasília: ONU Mulheres, 2011, p. 165-166. 42 ARAÚJO, C. As Mulheres e o Poder Político – Desafi os para a Democracia nas Próximas Décadas. BRASTED, L. L.; PITANGUY, J. (Org.). O Progresso das Mulheres no Brasil 2003–2010. Rio de Janeiro: CEPIA; Brasília: ONU Mulheres, 2011, p. 91-92.

145 ones men receive, since the beginning of the nation’s history. Th e fact their constitutional political rights arose in 1934 when they started voting, shows the biased culture. Another biased rule was in Brazilian Civil Code, from 1916, which considered the man as the head of the conjugal society, the responsible for managing the wife’s private goods and authorising her to work.43 He could also decide whether the woman could live in another home and could claim the marriage annulment in case of fi nding out his wife was not virgin anymore, within 10 (ten) days.44 Moreover, the law considered women to lack capacity to make decisions regarding civil life; therefore, they depended on their husbands to do any civil act until 1962. Also, until the end of the 1970s they could not work in a series of jobs, for being considered not fully able to do so, due to their supposed lack of capacity.45 Brazil signed the International Labour Organisation Convention No. 111 in 1968 and committed to fi ght discrimination and promote equality in labour conditions. However, the government has not implemented, immediately, measures to assure equality of women regarding labour market.46 Th e fi rst aim to achieve equality only took place in Brazil only in 1984, when the National Congress ratifi ed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), but there was a reservation to the text, regarding family law, specifi cally conserving the man as the head of conjugal society. It was only in 1994, six years after the 1988 Constitution promulgation, that the legal text removed the topic. Some private associations had established quota systems for women in their organisations even before the state did it. Th e “Workers Party” established a quota system for 30% of women in leading positions, in 1991.47 In 1993, the “Unifi ed Workers’ Central” did likewise over the feminist movement pressure.48 Even though the 1988 Constitution has established equality for men and women regarding rights and obligations, the fi rst affi rmative action measure to favour women only happened in 1995, almost seven years after its promulgation. Th e creation of the

43 Article 233. Th e husband is the head of the conjugal society. It is on his duty: I to represent the family legally. II to administer the wife’s common and private goods in his obligation according to the prenuptial agreement or the system of marriage. IV the right to authorise the wife to work and live out of home. BRASIL. Lei n° 3.071, de 1° de janeiro de 1916. Available at: http://www.planalto.gov.br/ccivil_ 03/leis/ L3071.htm. 44 Article 178. It expires. Paragraph 1: in ten days, counted from the wedding, the husband’s claim to annul the marriage in case the wife had not been virgin. BRASIL. Lei n° 3.071, de 1° de janeiro de 1916. Available at: http://www.planalto.gov.br/ccivil_03/leis/L3071.htm. 45 CAVALCANTI, S. V. Igualdade, Discriminação Positiva e Políticas Públicas para Mulheres no Brasil. Revista do Mestrado em Direito da Universidade Federal de Alagoas, ano 2, n. 2, 1º Semestre, 2006, p. 354. 46 MOEHLECKE, S. Ação afi rmativa: história e debates no Brasil. Cadernos de Pesquisa, n. 117, novembro/2002, p. 206. 47 GODINHO, T. Ação afi rmativa no Partido dos Trabalhadores. Estudos Feministas, IFCS/UFRJ-PPCIS/ Uerj, v. 4, n. 1, Rio de Janeiro,1996, p. 150. 48 DELGADO, M. B. G. Mais mulheres na direção da CUT. Estudos Feministas, IFCS/UFRJ-PPCIS/Uerj, v. 4, n. 1, 1996, p. 140.

146 quota system in politics determined a minimum rate of 20% of women in all the parties’ candidatures. It rose to 30% in 1997, due to the federal law 9.504.49 Brazil adopted an international declaration to enforce affi rmative action measures to set quota system, legal measures, and tax credits, all to reduce gender inequality, during the Fourth World Conference on Women, in Beijing, in 1995.50 Brazil prohibited requiring pregnancy certifi cates, sterilisation exams, and other discriminatory acts when hiring or maintaining women in their jobs also in 1995, by the law 9.029/95.51 Th ere are no major advances in women insertion in labour market, even though there is special protection, through specifi c incentive actions, in the 1988 Constitution.52 Th at is so because Brazilian government does not consider gender issues to create and implement public policies.53 An extremely important advance to protect Brazilian women is the “Maria da Penha Law”, containing severe punishment and prohibition to assault, sexual abuse or psychological violence against women in any intimate relationship. Its promulgation was in 2006, eleven years after the Organization of American States’ Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women and the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), exactly to promote their policies in Brazil.54 At the mid 1980s the Brazilian states created their Women Police Departments, to deal with issues aff ecting women and provide them proper attention regarding sexual assault and domestic violence.55 Th e police departments spread over the country after the “Maria da Penha Law” and nowadays they are in every Brazilian city, to accomplish the punishment to violence against women.

49 BRASIL. Lei 9.100, de 29 de setembro de 1995. Available at:: http://www.planalto.gov.br/ccivil_03/leis/ L9100.htm. 50 DIAS, Maria Berenice. Ações Afi rmativas: uma solução para a desigualdade. Revista Del Rey, nº 04, dez/98, p. 24. 51 CAVALCANTI, S. V. Igualdade, Discriminação Positiva e Políticas Públicas para Mulheres no Brasil. Revista do Mestrado em Direito da Universidade Federal de Alagoas, ano 2, n. 2, 1º Semestre, 2006, p. 368. 52 Article 7. Th e following are rights of urban and rural workers, among others that aim to improve their social conditions: (CA No. 20, 1998; CA No. 28, 2000; CA No. 53, 2006; CA No. 72, 2013) […] XX protection of the labour market for women through specifi c incentives, as provided by law. BRASIL. Constituição Federal de 1988. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado. htm. (English version at http://www.stf.jus.br/repositorio/cms/portalStfInternacional/portalStfSobreCorte_ en_us/anexo/Constitution_2013.pdf). 53 CAVALCANTI, S. V. Igualdade, Discriminação Positiva e Políticas Públicas para Mulheres no Brasil. Revista do Mestrado em Direito da Universidade Federal de Alagoas, ano 2, n. 2, 1º Semestre, 2006, p. 369. 54 Th e law 11.340/2006 has created tools to fi ght domestic violence against women as determines the article 226, paragraph 8 of the 1988 Constitution and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. BRASIL. Lei 11.340, de 07 de agosto de 2006. Available at:: http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/lei/l11340.htm. 55 RIFIOTIS, T. As delegacias especiais de proteção à mulher no Brasil e a «judiciarização» dos confl itos conjugais. Sociedade e Estado, Brasília, v. 19, n. 1, Junho, 2004, p. 90.

147 Th e Brazilian National Council of Justice recommended the creation of special courts specifi cally designed to deal with domestic violence against women in 2006, an attempt to investigate these cases more eff ectively.56 Th e law 11.770, created in 2010, extended maternity leave to 180 days (it was one hundred and twenty), assured them the right to their incomes while taking care of their new-born children (even if adopted ones). Th e mentioned actions show the government is aware of the gender discrimination in the country and reveal the rise of an important movement towards women protection through affi rmative action measures.

5. Gender Aff irmative Action Measures’ Results in Brazil: Rights’ Eff ectiveness or Privileges? Th e amount of affi rmative action measures the Brazilian government has adopted so far, mainly those after the 1988 Constitution promulgation, indicate the country has acknowledged there are discriminatory acts regarding gender. However, the affi rmative action measures implementation has led to controversial aspects, since many people consider those measures are unreasonable to the country’s reality.57 Th ey sustain the measures favour some groups in detriment of the rest of the population, rejecting meritocracy, creating privileges, confronting the right to equal treatment.58 As a result, the favoured people would be considered unable to achieve their results, remaining inferior and stereotyped. Nevertheless, these comments against the measures do not sustain themselves accordingly to the right of equal treatment, because according to Aristotle, “the worst form of inequality is to try to make unequal things equal”, therefore, we must treat unequal people diff erently to achieve full equality.59 Th us, positive discrimination measures play an important role in correcting historically rooted social distortions, since society is unable to solve and overcome them. An important aspect to consider is the actions are temporary and shall disappear when they achieve full equality, therefore the argument they create privileges does not prevail. Th e affi rmative action measures are temporary, but a fundamental step to apply the equality principle in a better way. To those who do not trust in affi rmative action measures, there is a question: how is it possible to guarantee equal access and conditions in labour market to women in Brazil? Th e society impede those minorities to have equal access to their rights. Th us, there is no other way to achieve them than through positive discrimination actions, favouring unequal people to become equal to the other members of their society.

56 CRUZ, Á. R. S. O direito à diferença. Belo Horizonte: Arraes Editores, 2009, p. 189. 57 FRY, P; MAGGIE, Y. Cotas raciais: construindo um país dividido? Econômica: Revista da Pós-Graduação em Economia da UFF. Niterói, v. 6, n. 1, jun. 2004, p. 156. 58 MOEHLECKE, S. Ação Afi rmativa: história e debates no Brasil. Cadernos de Pesquisa, n. 117, novembro/2002, p. 210. 59 AZEVEDO, M. L. N.. Igualdade e equidade: qual é a medida da justiça social? Revista Avaliação (Campinas), Sorocaba, v. 18, n. 1, Mar. 2013, p. 129.

148 It is impossible to sustain positive discrimination actions are unnecessary if, in 2008, Afro-women income represented R$ 383; Afro-men income was R$ 583; white women income was R$ 742, and white men reached R$ 1.181.60 Th e mentioned statistics are clear to demonstrate intense discriminatory acts towards gender and race, making it diffi cult for the discriminated people to achieve simple rights, available to the rest of Brazilian population. Affi rmative actions are necessary for Brazil. Th e next step is to understand the measures’ advancements or stagnations regarding eff ectiveness in Brazil. According to the United Nations in Brazil Report, from 2010, affi rmative action measures have yielded signifi cant social advancements, especially the ones aimed at implementing the recommendations from the III World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance.61 5.1 Eff ectiveness of aff irmative action measures aimed at women Gender discrimination in Brazil has demanded three affi rmative action measures: the fi rst one, aimed at inserting women into politics 62; the second one to include them in the labour market, in equal conditions as men63; and the third one to protect them against domestic violence.64 Regarding politics, women’s participation is still innocuous, nevertheless all the attempts of positive discrimination measures. Even though there is a legal determination of 30% of women in political parties, when it comes to voting, most of them are not elected. As reported by the Brazilian Institute of Geography and Statistics, women were 51,4% of the Brazilian population, but only 12,3% of them were national politicians in 2013.65 Regarding the labour market, some advances have occurred. Women perceived 53,1% of men’s salary in 1980. Th e amount raised to 63,1% in 1991, increased to 70% in 2000, went up to 71,5% in 2010, and in 2015 it got to 74%.66 Even though inequality

60 BRUSCHINI, C.; LOMBARDI, M. R.; MERCADO, C. M.; RICOLDI, A. Trabalho, Renda e Políticas Sociais: Avanços e Desafi os. BRASTED, L.L.; PITANGUY, J. (Org.). O Progresso das Mulheres no Brasil 2003–2010. Rio de Janeiro: CEPIA; Brasília: ONU Mulheres, 2011, p. 165-166. 61 ORGANIZAÇÃO DAS NAÇÕES UNIDAS NO BRASIL. Ações afi rmativas e avanços sociais. Available at: https://nacoesunidas.org/acoes-afi rmativas-e-avancos-sociais/. 62 BRASIL. Lei 9.100, de 29 de setembro de 1995. Available at: http://www.planalto.gov.br/ccivil_03/leis/ L9100.htm. 63 CAVALCANTI, S.V. Igualdade, Discriminação Positiva e Políticas Públicas para Mulheres no Brasil. Revista do Mestrado em Direito da Universidade Federal de Alagoas, ano 2, n. 2, 1º Semestre, 2006, p. 368. 64 Th e Law n. 11.340/2006 has created ways to fi ght domestic violence against women, according to the 1988 Constitution (article 226, paragraph 8) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. BRASIL. Lei 11.340, de 07 de agosto de 2006. Available at:: http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/lei/l11340.htm. 65 INSTITUTO BRASILEIRO DE GEOGRAFIA E ESTATÍSTICAS. Indicadores sociais sobre a mulher. Available at:: https://ww2.ibge.gov.br/home/presidencia/noticias/07032002mulher.shtm. 66 KNAPP, E. Dois séculos separam mulheres e homens da igualdade no Brasil. Jornal Folha de São Paulo, 26/09/2015. Available at: http://www1.folha.uol.com.br/asmais/2015/09/1675183-no-ritmo-atual-fi m- da-desigualdade-entre-homens-e-mulheres-demoraria-240-anos.shtml.

149 has been diminishing, new affi rmative action measures are necessary to guarantee women and men earn the same amount. More than thirty years have passed since the 1988 Constitution, in which men and women are supposed to be alike, but intervention is still necessary since there is no gender equality in fi nancial aspects. Concerning labour positions, women participation arose in 17% in twenty years: they were 37,4% in 1995 and represented 43,7% in 2015, showing a more signifi cant advance.67 Finally, about violence against women, the Brazilian Secretary of Policies to Women informed there were 1.133.345 (a million a hundred and thirty-three thousand, three hundred and forty-fi ve) violence reports in 2016, 51% more than the numbers from 2015, 749.024 (seven hundred forty-nine thousand and twenty-four) cases. Th e numbers show women are still victims of sexual off ences and domestic violence in Brazil, despite the law to protect them and the specialised police stations. Th e number has been increasing, what demonstrates the measures taken so far are ineffi cient to protect women.

6. Conclusion Analysing the gender affi rmative action measures’ historical development in Brazil shows how discrimination and social exclusion have evolved from formal equality, where there was no space for positive discrimination, to the quest for substantial equality, based on compensatory policies favouring excluded groups. Achieving substantial equality became a public policy from the 1988 Constitution, with affi rmative action measures aimed at women. Also, the Constitution established the prohibition against all forms of discrimination. Brazil takes an important role in the international scenario because it is a signatory of all declarations, conventions and treaties on human rights and especially due to it aims to extinguish all forms of discrimination in its territory. Th e 1988 Constitution promulgation happened thirty years ago and, since then, the Brazilian Government has been working hard on implementing public policies to compensate and guarantee full gender equality. Many affi rmative action measures implemented in Brazil are polemic, and their results are leading cases in the country’s highest courts of justice. It happened whereas, while to some people the measures are necessary and valid, considering they can correct historical discrimination processes, to others they represent nothing but a new form of discrimination, which they consider unsuitable nowadays. According to this second group, the affi rmative action measures are merely assistant, and they would only weaken the benefi ciaries’ self-esteem because their achievements in society would not consider their merits. However, the emotional arguments do not sustain themselves according to the social exclusion numbers collected by the United Nations, the Organization of American

67 KNAPP, E. Dois séculos separam mulheres e homens da igualdade no Brasil. Jornal Folha de São Paulo, 26/09/2015. Available at: http://www1.folha.uol.com.br/asmais/2015/09/1675183-no-ritmo-atual-fi m- da-desigualdade-entre-homens-e-mulheres-demoraria-240-anos.shtml.

150 States, and the Brazilian Institute of Geography and Statistics that shows the high level of discrimination against women in labour market. Affi rmative action measures have arisen in Brazil as major importance instruments to fi ght discrimination; they have become important tools to achieve the right to equal treatment. In almost thirty years women have participated in politics and the labour market. In summary, these are the positive and negative aspects concerning affi rmative action measures in Brazil, how they show themselves in the Brazilian young and slow democracy. It is to remember they are mere instruments to fi ght social inequalities. By themselves, the measures do not transform the Brazilian society. Th ere is still a lot to do, and one must not forget the affi rmative action measures depend on the Brazilian population values, that must consist on fraternity, tolerance, and respect to diversity, therefore Brazil shall overcome discrimination and inequalities and build the long-cherish dream of free, just and solidary society.

151 12 The European Union and its Member States and the Implementation of the UN Guiding Principles on Business and Human Rights

Jitka Brodská * Harald Christian Scheu

1. Introduction In the political discussion and in academic literature, there is little dispute that business activities may have a very negative impact on human rights. Already since the 1970s, international experts have been paying attention especially to those transnational economic activities that involve the exploitation of natural resources and the use of cheap labour or child labour in developing countries.1 Over the past decades, the problem of human rights abuses caused by multinational business corporations has become even more urgent as a consequence of the dynamic processes of globalization in the fi elds of economy, technology, and communication.2 Th ese processes have put forward major challenges to the system of public international law and international human rights law. In the fi rst place it is necessary to deal with the shift of sovereignty from states to non-state actors. International lawmakers are called upon to conceive legal norms which set relevant standards of human rights obligations and responsibilities for all relevant actors. Within the dense network of trans-border exchanges there shall be no space for impunity for human rights violators. In this contribution we want to focus on one of the most ambitious international attempts to tackle the problem of business and human rights and, in the fi rst part of our study, we will briefl y summarize the structure and contents of the UN Guiding Principles on Business and Human Rights of 2011. Th e focus of the second part is on the implementation of the Guiding Principles from the EU perspective. We will consider some issues related to the delimitation of powers between the EU and its Member States in the fi eld of human rights obligations. Further we will look into rather recent EU documents that deal especially with the issue of legal remedies for those whose rights have been violated in the course of business activities.

* Jitka Brodská works at the Ministry of Foreign Aff airs of the Czech Republic. Th e opininons expressed in this chapter are the author’s own and do not refl ect the views of the Ministry of Foreign Aff airs. 1 See generally on the history of transnational corporations in the context of the human rights debate WALLACE, Denise. Human Rights and Business: a policy-oriented perspective (Studies in intercultural human rights, volume 6). Leiden: Brill, 2015, p. 90-114. 2 SANTOSO, Benny. “Just Business” – Is the Current Regulatory Framework an Adequate Solution to Human Rights Abuses by Transnational Corporations? German Law Journal, 3/2017, p. 533-558.

152 Th e major goal of the study is to show the relevance of the UN Guiding Principles for the EU, which is one of the three major world trading powers and one of the most favoured locations of transnational corporations.

2. Setting standards for addressing the risk of adverse impact of business activities on human rights After unsuccessful attempts to codify soft law standards in the United Nations Economic and Social Council Code of Conduct during the 1970s and 1980s or through the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” elaborated in 2003 by the United Nations Sub-Commission on the Promotion and Protection of Human Rights 3 and besides some voluntary commitments adopted by business corporations, the UN Global Compact of 2000 4 paved the way for further international attempts to address issues related to business and human rights. In this part we focus on the UN Guiding Principles of 2011 and the ongoing eff orts to elaborate on an international legally binding instrument. 2.1 UN Guiding Principles on Business and Human Rights Th e UN Guiding Principles on Business and Human Rights, endorsed by a consensus in the UN Human Rights Council in June 2011,5 represent the authoritative framework and the global standard of practice for preventing and addressing the risk of the adverse impact of business activities on human rights. Th e Guiding Principles were developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises John Ruggie.6 Th ey were the result of broad and in-depth consultations with States and relevant stakeholders. While they do not constitute a legally binding document, they build on existing standards and include elements covered in international and domestic law. Th e three-pillar framework includes: fi rstly the State’s duty to protect human rights, secondly corporate responsibility to respect human rights, and thirdly access to remedies for victims of business-related abuse. Th e document clarifi es and details duties of States and responsibilities of business entities which are distinct but complementary. 14 of the 31 Guiding Principles are addressed to businesses. As the Guiding Principles have been conceived to be as inclusive as possible, they shall apply to all States and to all companies of all sizes, in every sector, and in any country. Whereas the Guiding Principles, on one hand, do not create new legal obligations, on the other hand, they do not preclude developments leading to the adoption of a legally binding instrument in the future. Especially through the principles of the second pillar, they provide a foundation

3 Th e “Norms” were considered but not approved by the UN Commission on Human Rights in April 2004. 4 In more detail see NOWROT, K. Th e New Governance Structure of the Global Compact – Transforming a “Learning Network” into a Federalized and Parliamentarized Transnational Regulatory Regime, Beiträge zum Transnationalen Wirtschaftsrecht, No. 47, 1/2005, p. 13. 5 Human Rights Council resolution 17/4 of June 2011. 6 Th e Special Representative annexed the Guiding Principles to his fi nal report to the Human Rights Council A/HRC/17/31.

153 for expanding the international human rights regime to encompass not only countries and individuals, but also companies.7 International human rights law obligations require that states respect, protect, and fulfi l the human rights of individuals within their territory and/or jurisdiction.8 Th ese obligations frame the fi rst pillar of the UN Guiding Principles. Th e duty to protect is a standard of conduct, not result. States are not per se responsible when a business enterprise commits a human rights abuse but they may breach their international human rights law obligations if they fail to take appropriate steps to prevent such abuse and to investigate, punish, and redress when it occurs.9 Th e second pillar identifi es the responsibility of business entities to respect human rights and it specifi es a due diligence process which companies should give eff ect to.10 According to Ruggie, the second pillar required the most signifi cant conceptual departure from the standard human rights discourse and has become the centrepiece of the Guiding Principles.11 Th e responsibility to respect human rights represents a global standard of expected conduct for all business enterprises wherever they operate 12 and refers to internationally recognized human rights. At a minimum, it refers to those rights that have been expressed in the International Bill of Human Rights and the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.13 In principle, business activities can have an impact, directly or indirectly, on the entire spectrum of human rights. However, in practice, some human rights may be at greater risk than others.14 Th e word “responsibility” was intended to signal that it diff ers from legal duties as it exists over and above legal compliance.15 To identify, prevent, mitigate, and account for

7 RUGGIE, John Gerard: Just Business, Multinational Corporations and Human Rights, W. W. Norton and Company LTD. London, 2013, p. 124. 8 Commentary to the Guiding Principle 1 – Th e state’s duty to protect human rights; UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annex to A/HRC/17/31, endorsed by the Human Rights Council resolution 17/4 of 16 June 2011. 9 RUGGIE, op. cit., p. 84. 10 UN Working Group on Business and Human Rights: Guidance on National Action Plans on Business and Human Rights, Geneva, 2015, p. 1. 11 RUGGIE, op. cit., p. 90. 12 Commentary to the Guiding Principle 11 – Th e corporate responsibility to respect human rights; UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annex to A/HRC/17/31, endorsed by the Human Rights Council resolution 17/4 of 16 June 2011. 13 Guiding Principle no 12; UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annex to A/HRC/17/31, endorsed by the Human Rights Council resolution 17/4 of 16 June 2011. 14 Commentary to the Guiding Principle no 12; UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annex to A/HRC/17/31, endorsed by the Human Rights Council resolution 17/4 of 16 June 2011. 15 Offi ce of the UN High Commissioner for Human Rights: Th e Corporate Responsibility to Respect Human Rights: An Interpretative Guide, United Nations, 2012, p. 13.

154 human rights abuses, business enterprises should carry out human rights due diligence. Th e process should include assessing actual and potential human rights impacts, integrating and acting upon the fi ndings, and communicating how impacts are addressed.16 Th e due diligence process shall go beyond identifying and managing material risks to the company itself and should include risks the business activities may pose to the rights of aff ected individuals.17 Th e third pillar of the Guiding Principles specifi es the need to ensure better access to legal remedies which address the joint responsibility of States and business enterprises for human rights violations. States are required to take steps to investigate, punish, and redress business related abuses of human rights. Th ey must take steps to ensure, through judicial, administrative, legislative, or other appropriate means, that those aff ected have access to an eff ective remedy.18 Besides judicial remedies, also state-based non-judicial and non-state-based mechanisms may be used. From a European perspective, we may say that since the very beginning of the drafting process the European Union has been very supportive and engaged in the development of the Guiding Principles. Two global consultations were held at the UN European Headquarters in Geneva and an EU-wide consultation was convened during the Swedish EU presidency in Stockholm.19 Th ere were several factors that infl uenced the EU’s active involvement, including a growing pressure from the European Parliament and civil society and the prospect of promoting its own standards on Corporate Social Responsibility.20 In 2011, the European Commission issued a new EU Corporate Social Responsibility Strategy for the years 2011 - 2014 which included a specifi c action item on “Implementing the UN Guiding Principles on Business and Human Rights”.21 Seven years after the adoption of the UN Guiding Principles there are numerous examples of how they have been integrated into governments’ national action plans, policies and regulations, further into policy documents of international and regional organisations,22 and last but not least, into the practice of many business entities around the world.

16 Guiding Principle no 17 – Human Rights Due Diligence; UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annex to A/ HRC/17/31, endorsed by the Human Rights Council resolution 17/4 of 16 June 2011. 17 RUGGIE, John Gerard: Just Business, Multinational Corporations and Human Rights, W. W. Norton and Company LTD. London, 2013, p. 99. 18 Guiding Principle no 25 – Access to Remedy; UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annex to A/HRC/17/31, endorsed by the Human Rights Council resolution 17/4 of 16 June 2011. 19 RUGGIE, op. cit., p. 142. 20 PEARSON, Gosia: Th e Emergence of Business and Human Rights in the EU’s External Relations, Oxford Human Rights Hub, 3 March 2015; available at: http://ohrh.law.ox.ac.uk/the-emergence-of-business- and-human-rights-in-the-eus-external-relations/. 21 RUGGIE, op. cit., p. 165. 22 Ibid, p. 121.

155 2.2 Eff orts to elaborate on an international legally binding instrument Besides the UN Guiding Principles, which falls under international soft law, the UN Human Rights Council in 2014 established an open-ended intergovernmental working group with the mandate to draft an international legally binding instrument focusing on human rights aspects of transnational business activities.23 Th e European Union has been especially sceptical about the usefulness of a legally binding treaty on this subject and all EU Member States that were represented in the Human Rights Council at that time opposed the establishment of the intergovernmental working group. Later they made their participation in the working group subject to two conditions. First, the scope of a new legal instrument shall not be limited to transnational corporations but shall also cover national and small and medium enterprises. Second, the UN Guiding Principles shall not be undermined. So far, three sessions of the intergovernmental working group have been held under the chairmanship of Ecuador. Only a limited number of states participate actively or openly support the idea of a treaty regulation on business and human rights, e.g. South Africa, India, the Philippines, Bolivia, Brazil, and Venezuela.24 Th e USA, Canada, and Japan continue to boycott the process.25 Russia argues rather against the treaty. Others, including the European Union, keep reserving their position and asking questions both on the process as well as on the substance. Shortly before the third session of the intergovernmental working group held in October 2017, its Ecuadorian chair released a document named “Elements for the draft legally binding instrument on transnational corporations and other business enterprises with respect to human rights”.26 At fi rst sight, the “Elements” represent a compilation of a range of proposals presented by some States, civil society and academia during previous sessions. Certain provisions reiterated existing international law, others the UN Guiding Principles. However, there were several provisions which were considered very problematic from the EU’s point of view. Th e EU opposes the idea that corporate legal liability should be established under international law, that extraterritorial jurisdiction should be required for the violation of any internationally recognized human right, and that a hierarchy of international legal norms should be established. It is still unclear how the process will continue as the resolution of the Human Rights Council establishing the intergovernmental working group foresees only three sessions. Th e engagement of the European Union will factor in the following elements: a) any potential international legal instrument should be consistent with the UN Guiding Principles and should apply to all companies – transnational and national; b) such a document should gain support from key economies to enter into force and it should enhance a level playing fi eld.

23 Human Rights Council resolution 26/9 of June 2014. 24 Webcast available at: https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session3/Pages/Session3. aspx. 25 A/HRC/37/67 – information on participation on p. 23. 26 Th e document is available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/ Session3/LegallyBindingInstrumentTNCs_OBEs.pdf.

156 It is true that the two approaches to business-related human rights abuses, i.e. the UN Guiding Principles as a soft law document, on one hand, and the project of a legally binding treaty on the other, do not necessarily contradict each other. Th ere is no inherent competition between the UN Guiding Principles and an international legal instrument. John Ruggie, the author of the UN Guiding Principles, has suggested that international legal instruments might serve as precision tools with regard to the “Principles”. However, Ruggie has clearly opposed the idea of a comprehensive treaty on business and human rights. He found that from the victims’ perspective, negotiations on a comprehensive treaty are not only a bad idea, but even a profound deception.27 John Ruggie, in his recommendations on the follow-up to his mandate, has further noted that national jurisdictions have divergent interpretations of the applicability to business enterprises of international standards prohibiting such gross human rights abuses that might potentially amount to the level of international crimes, especially in situations of armed confl ict or other forms of heightened risk. Ruggie suggested that an intergovernmental process of drafting a new international legal instrument might address the specifi c challenges posed by this protection gap.28

3. The UN Guiding Principles and their implementation in the European Union It has been shown that the EU has played an active role with regard to the preparation and adoption of the UN Guiding Principles and has also formulated a very clear position in the negotiations about a legally binding instrument. In this part of the study we will highlight some issues related to the implementation of the UN Guiding Principles by the EU and its Member States. 3.1 National Action Plans and Legislative Measures of individual Member States Th e UN Guiding Principles shall be integrated into governments’ national action plans and policies. So far, 19 national action plans have been adopted, 14 of them by EU Member States: the United Kingdom, the Netherlands, Denmark, Finland, Lithuania, Sweden, Italy, Germany, France, Poland, Spain, Belgium, Ireland, and the Czech Republic. As for the regional group of Latin American and Caribbean states (the so-called GRULAC), only Colombia and Chile have adopted their national action plans.29 It is worth noting that the European Commission, in its Communication of 2011 entitled “A renewed EU strategy 2011–2014 for Corporate Social Responsibility”, called on all EU Member States to develop their own national action plans for the implementation of the UN Guiding Principles. It is understood that national action plans can contribute to

27 RUGGIE, John Gerard: A Business and Human Rights Treaty? International legalisation as precision tools, June 2014, (available at www.ihrb.org/library/publications/treaty-on-business-human-rights). 28 RUGGIE, John Gerard: Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises: Recommendations on Follow-up to the Mandate, submitted to the UN Human Rights Council in February 2011. 29 Updated information is available at http://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans. aspx.

157 a greater coordination and coherence within governments on the range of public policy areas and can provide a platform for an ongoing multi-stakeholder dialogue on issues that relate to business and human rights.30 Th e process of implementing the Guiding Principles in the Czech Republic was launched in December 2015. Drafting of a national action plan was initiated by two governmental departments and led by the Offi ce of the Minister for Human Rights. Th e Government approved the National Action Plan on Business and Human Rights for the period 2017–2022 on 23 October 2017. Th e document covers all three pillars of the Guiding Principles and it sets tasks for governmental departments and formulates recommendations to businesses. It is envisaged that a thorough study will be commissioned to assess the current state of play in the area of business and human rights in the Czech Republic. According to available studies,31 the existing national action plans contain a commitment to the UN Guiding Principles and they address thematic and sector-specifi c human rights issues. Most governments conducted some form of consultations with stakeholders to inform the drafting process. Probably the most signifi cant weakness of action plans assessed so far is that they do not suffi ciently explore new regulatory options but rather describe measures which the governments already adopted in the past. It further seems that the issue of eff ective remedies for the victims has been neglected.32 A consistent failure to conduct national baseline assessments to inform about the content of the national action plans was registered as well. Even though action plans predominantly focus on past actions, a few concrete legislative measures adopted by individual EU Member States may be presented as examples of good practice. In 2010, the United Kingdom passed the Bribery Act, which introduced the off ence of corporate failure to prevent bribery and a due diligence model with signifi cant legal consequences for non-compliance. Another example is the new French law on corporate social responsibility 33 which provides for a specifi c reporting and risk management regime that requires large companies to plan for, anticipate, and make eff orts to avoid harmful impact on human rights, e.g. with regard to health and environment. In the Netherlands, a new act establishing due diligence standards with respect to the problem of child labour has been adopted. It requires companies to develop and apply strategies in their supply chains and sanctions non-compliance.34 Th e corporate due diligence in respecting human rights has been incorporated also into the German national action plan. Th e Federal Government articulated its expectation that all enterprises introduce the corporate due diligence in a manner commensurate with

30 UN Working Group on Business and Human Rights: Guidance on National Action Plans on Business and Human Rights, Geneva, 2015, p. 1. 31 ICAR, ECCJ: Assessment of existing National action Plans on Business and Human Rights, November 2015, pp. 4-5. 32 BLACKBURN, Daniel. Removing barriers: How a treaty on business and human rights could improve access to remedy for victims. International Centre for Trade Union Rights, 2017 (available at https://www.somo. nl/wp-content/uploads/2017/08/Removing-barriers-web.pdf). 33 LOI n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés meres et des entreprises donneuses d’ordre. 34 BLACKBURN, op. cit., p. 52

158 their size, the sector in which they operate, and their position in the supply and value chain. Compliance will be reviewed annually from 2018. In the absence of adequate compliance, the Government will consider further action, which may culminate in legislative measures and in the widening of the circle of enterprises to be reviewed. Th e goal is that at least 50% of all enterprises based in Germany with more than 500 employees will have incorporated due diligence standards by 2020.35 3.2 The European Union and international human rights obligations Under Article 5 of the Treaty on the European Union, the limits of EU competences are governed by the principle of conferral, and therefore, the EU shall act only within the limits of the competences conferred upon it by the Member States in the founding treaties to attain the objectives set out therein. Competences not conferred upon the Union in the founding treaties remain with the Member States. Most EU competences have the character of the so-called shared competence. When the EU decides to adopt measures within the scope of shared competence, the Member State loses its power to take decisions. In such a case EU legislation replaces the content of a corresponding national legal act. With a view to human rights issues, shared competence can be relevant e.g. in the following areas: internal market, social policy, environment, consumer protection, and migration. When both the EU and its Member States enter international agreements on human rights, the limits of EU competences also infl uence the EU’s responsibility with regard to international obligations. Th e problem of shared EU and Member States’ international accountability for the implementation of international agreements is of course not new. Clarifying the question of who is responsible for the commitments is important not only in terms of the internal relationship between the EU and its Member States as parties to an international treaty. Th e scope of responsibility is also crucial from the perspective of third countries which are bound by the respective treaty. With regard to the protection of the interests of a third country, legal doctrine argues in favour of shared responsibility between the EU and its Member States. From an external perspective, the defi nition of EU and Member States’ competences in the implementation of an international treaty can be very complex and a third party cannot be realistically expected to always correctly assess whether a measure falls within the competence of the EU or of a Member State, or whether the EU or a Member State are acting ultra vires.36 Th erefore, the third party should be able to choose whether to assume responsibility for non-compliance of an international obligation with the EU or its Member States. Only after the division of responsibilities has been clarifi ed in the internal relationship between the EU and its Member State, a third party may be referred to a dispute settlement with the subject that is really competent.37

35 National Action Plan: Implementation of the UN Guiding Principles on Business and Human Rights; German Federal Foreign Offi ce, Berlin, 2017, p. 10. 36 On the doctrine of shared responsibility between the EU and the Member States and its modifi cation by means of a bona fi de argument, see in more detail BJÖRKLUND, M. Responsibility in the EC for Mixed Agreements – Should Non-Member Parties Care? Nordic Journal of International Law, 3/2001, p. 373-402. 37 PACHE, E., BIELITZ, J. Das Verhältnis der EG zu den völkerrechtlichen Verträgen ihrer Mitgliedstaaten. Europarecht, 3/2006, 316-339, p. 320.

159 In this respect, it is appropriate for the EU and the Member States to clarify their responsibilities whenever they accede to international human rights obligations. Indeed, such issue has been very intensively addressed in the process of the EU’s preparations for accession to the European Convention on Human Rights. However, also with regard to soft law obligations in the fi eld of human rights protection, the question of shared responsibility shall be examined carefully. When it comes to the accession to an international human rights treaty, the EU and the Member States need to cope with one of the main motives of EU law, according to which international obligations and their institutional assurances must not undermine the autonomy of the EU’s legal order.38 Th is assignment was confi rmed and refi ned by the Lisbon Treaty in the new Protocol No 8, which sets out a framework for EU accession to the European Convention on Human Rights. Under Article 1 of the Protocol, the accession agreement refl ects the need to preserve the specifi c features of the Union and EU law, in particular with regard to the right to make individual complaints against the EU or its Member States. Article 2 of the Protocol further provides that the notifi ed accession agreement must not aff ect either the competence of the EU and its authorities or the relationship of the Member States with the European Convention on Human Rights. In any case, accession to the European Convention on Human Rights would raise major issues regarding the shared responsibility of the EU and the Member States for violations of the Convention. Under EU law, Member States, in principle, have a certain margin of appreciation when they implement and apply EU norms. In some cases, however, Member States do not have a choice. If a violation of the European Convention on Human Rights is caused by a directly eff ective EU regulation, the EU shall be held liable. Th e situation is more complicated, if the violation is caused by EU primary law which enters into force only after ratifi cation by the Member States. Th ese considerations are related to Article 1 of the above quoted Protocol No 8, which states that individual applications shall be “correctly” addressed to Member States and/ or the EU. In order to solve this problem, negotiators included a so-called co-respondent mechanism into the draft accession agreements.39 Another case is EU accession to the Convention on the Rights of Persons with Disabilities (CRPD). Th e CRPD, which was adopted by the United Nations General Assembly in 2006 and entered into force in 2008, is one of the nine key UN human rights conventions.40 Th e Convention is specifi c in that, according to its Article 42, it allows accession not only to sovereign states but also to so-called “regional integration organizations”. Th e European Commission actively promoted this provision during the

38 See, for example, Opinion No. 1/91 on the draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, and Opinion No. 1/00 on the proposed agreement between the European Community and non-Member States on the establishment of a European Common Aviation Area. 39 KORENICA, F. Th e EU Accession to the ECHR: Between Luxembourg’s Search for Autonomy and Strasbourg’s Credibility on Human Rights Protection. Heidelberg, 2015, s. 163-229. 40 For an overview, see OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS. Th e United Nations Human Rights Treaty System. Fact Sheet No. 30/Rev. 1, New York, 2012.

160 negotiation of the text of the CRPD.41 Th e term “regional integration organization” is defi ned in Article 44 of the Convention as an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by the present Convention. Such organizations shall declare, in their instruments of formal confi rmation or accession, the extent of their competence with respect to matters governed by the Convention. Such a declaration under Article 44 of the CRPD is contained in Annex II to the Council Decision of 26 November 2009 on the conclusion of the CRPD by the European Community.42 Th e Council summarized the current status of EU competences in relation to the issues falling under the Convention. Firstly, the Council identifi ed the exclusive competence of the EU regarding the compatibility of State aid with the common market, issues related to the Common Customs Tariff , and also the status of EU public administration. Secondly, the Council has identifi ed relevant shared competences to address the following areas: combating discrimination on the grounds of disability, free movement of goods, persons, services and capital, agriculture, transport by rail, road, sea and air transport, taxation, internal market, equal pay for men and women, trans- European network policy, and statistics. A list of relevant EU legal acts is contained in an appendix to the Council Decision. Th e Council noted that the extent of EU competences must be assessed by reference to the precise provisions of each EU measure. Th irdly, the Council also pointed at some EU supporting competences that can be relevant to the implementation of the CRPD, such as the competences for a coordinated employment strategy, and the quality of education and the strengthening of economic and social cohesion. Th e Council Decision of 26 November 2009 indicates how complicated the delimitation of shared powers in the fi eld of human rights protection can be. More precise rules for the interaction of EU bodies and Member States’ governments have been subsequently laid down in a Code of Conduct, which was adopted in November 2010 as an agreement between the Council, the Member States, and the Commission.43 Th e Code of Conduct is based on the EU and Member States’ eff orts to develop common positions. Even where compliance with the CRPD falls within their sovereign sphere, Member States, together with the EU, must strive to develop coordinated attitudes. For these purposes, the Code of Conduct specifi es the role of the Council and its Presidency, working groups, the Permanent Representatives Committee, and the Commission. Based on the coordinated positions of the EU and Member States on issues of shared and supportive competences and the EU’s own positions on matters of exclusive competence, the Commission shall exercise voting rights in the bodies set up under the CRPD. Member States retain the right to exercise voting rights only if the bulk of the matter in question falls within their internal competences, always on the basis of coordinated or common positions. Only if no agreement can be reached between the Commission and the Member States, Member States can vote on matters that are clearly within their competence.

41 DE SCHUTTER, O., DE JESÚS BUTLER, I. Binding the EU to International Human Rights Law. Yearbook of European Law, 2008, 277-320, p. 19. 42 Offi cial Journal L 23, 27 January 2010, p. 35-36. 43 2010/C 340/08.

161 It is understandable that the EU and its Members States may approach soft law commitments in a more fl exible way than it is the case with legally binding treaty obligations. Th erefore, less eff ort will be dedicated to issues of exclusive and shared EU competences when it comes to the implementation of the UN Guiding Principles. Nevertheless, in July 2015 the Commission issued the Staff Working Document on Implementing the UN Guiding Principles on Business and Human Right that addressed a number of relevant questions.44 Following the principle of conferral which is enshrined in Article 5 of the Treaty on the Functioning of the European Union (TFEU), the Commission holds that “business and human rights” is not a stand-alone issue as it touches upon a wide range of diff erent legal and political areas, including but not limited to human rights law, labour law, environmental law, anti-discrimination law, international humanitarian law, investment and trade law, consumer protection law, civil law, commercial law, corporate, or penal law. It is clear that the EU’s regulatory competence varies according to the scope of competence awarded to the EU in respect of each of those areas. Th e Commission tried to identify some relevant provisions in the founding treaties that may provide the necessary fundament for the implementation of the UN Guiding Principles by EU measures. Article 21 of the Treaty on European Union concerns the relevant external action of the EU, e.g. with regard to the defi nition of common policies and actions. In this context the EU shall be guided by the idea to consolidate and support democracy, the rule of law, human rights, and the principles of international law. Also EU anti-discrimination might contribute to the implementation of the UN Guiding Principles because the EU has adopted a number of legal acts aimed at combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. Great importance should be attached to the EU’s common commercial policy, which according to Article 207 TFEU shall be conducted in the context of the principles and objectives of the Union’s external action. Another fi eld of relevance is migration. Th e EU has developed legislative tools to protect third country nationals’ labour rights. Th e Staff Working Document points at Directive 2003/109/EC concerning the status of long-term residents or directives protecting specifi c categories of migrants, Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, and Council Directive 2005/71/ EC on a specifi c procedure for admitting third-country nationals for the purposes of scientifi c research. Council Directive 2009/50/EC introduced the concept of the so-called “blue card” that aims at facilitating the entry and residence of third-country nationals for the purposes of highly qualifi ed employment and granting them equal treatment. In principle, the Commission Staff Working Document shows that while some implementation measures related to the UN Guiding Principles have to be carried out mainly by the Member States (e.g. with regard to Principles 1, 4-5, 7, 10, 25-27), in quite many areas the EU and Member States will have to closely co-operate and fi nd a common approach. In this situation it is natural that the Member States National Action Plans contain very frequent references to EU-wide strategies and legislative

44 SWD(2015) 144 fi nal.

162 measures.45 A comprehensive strategy concerning business and human rights has to include both levels, i.e. the Union level as well as the level of national implementation. All Member States are bound by key EU directives having a business and human rights dimension. When the European Commission monitors the implementation of those directives (and other related EU norms) it may take into account the UN standards, and thus signifi cantly infl uence the Member States approach towards the Guiding Principles. 3.3 The European Union and the implementation of the UN Guiding Principles On the European level, also the Council of Europe (CoE) is getting involved into the problem of business and human rights. Th e CoE’s Committee of Ministers, in March 2016, adopted a Recommendation on Human Rights and Business 46 that deals with several crucial aspects of business-related human rights abuses. Besides implementation measures related to the UN Guiding Principles and tools for the protection of specifi c vulnerable groups, special emphasis has been placed on the issue of eff ective remedies which shall be available to the victims of human rights violations. Th e Recommendation calls upon CoE Member States to provide for judicial mechanisms addressing civil and criminal liability for business-related human rights abuses. In addition, non-judicial tools and the issue of judicial cooperation with third countries shall be considered. Th ree months later, in June 2016, the EU Council issued Council Conclusions on Business and Human Rights 47 which fully support the UN Guiding Principles. Th e EU Council recalled that Member States have taken the lead internationally on developing and adopting National Action Plans. According to the Council, the European Commission intended to launch an EU Action Plan on Responsible Business Conduct in 2016. In fact, such an action plan has not been adopted so far. Nevertheless, there are a number of similar documents that directly or indirectly relate to the issue, such as e.g. the European Commission Green Paper on Corporate Social Responsibility of 2001 and the so-called European Instrument for Democracy and Human Rights (EIDHR) which is funding projects in the area of human rights, fundamental freedoms and democracy in non-EU countries. Several legislative instruments of the EU have a relevant impact on business and human rights. In 2014 the European Parliament and the Council adopted Directive 2014/95/EU which concerns the disclosure of non-fi nancial and diversity information and requests large companies, banks, and insurance companies to disclose information on the human rights risks of their policies. According to the EU Directives on public procurement and concessions 48 public authorities shall take into account human rights concerns, especially child labour and human traffi cking.

45 AUGENSTEIN, D., DAWSON, M., THIELBÖRGER, P. Th e UNGPs in the European Union: Th e Open Coordination of Business and Human Rights? Business and Human Rights Journal, 3 (2018), pp. 1-22. 46 CM/Rec(2016)3. 47 Council Conclusions on Business and Human Rights, Doc. 10254/16, 20 June 2016. 48 Directives 2014/24/EU, 2014/25/EU and 2014/23/EU adopted on 26 February 2014.

163 Following the request of the EU Council of 2016, the EU Agency for Fundamental Rights (FRA), in April 2017, delivered an expert opinion on possible avenues to lower barriers for access to remedies in the area of business and human rights at the EU level.49 It is natural that the EU Charter of Fundamental Rights, besides other international human rights documents, serves as the main point of reference in the FRA opinion. Business-related human rights abuses may aff ect concrete rights laid down in the Charter, e.g. the right to security of the person, economic and social rights, civil and political rights, the right to non-discrimination, the right to privacy, labour rights, and rights of communities or groups including indigenous peoples, as well as consumer rights and rights related to environmental protection. From the perspective of EU law, extraterritorial access to a remedy is an important issue. Th e FRA opinion recalls harmonized rules on the choice of court and the choice of law. In principle, the Brussels Regulation (Brussels I Recast)50 provides that companies which have their statutory seat or their central administration in an EU Member State may be sued before the courts of that state for damages which the company has caused by the company outside of the EU. Europeanized rules of private international law (Rome II)51 further clarify that, in general, applicable law is that where the damage occurs. However, the FRA opinion also found that despite harmonized EU rules on jurisdiction Member States continue to apply diff erent approaches to issues which have not been harmonized so far. For example, the liability of a parent company for acts of a subsidiary and due diligence criteria of a parent company with respect to a subsidiary is regulated diff erently in the Member States. Th erefore, it remains unclear under which conditions the connection between an EU based company and a subsidiary outside the EU is suffi ciently strong to establish the jurisdiction of a court in the EU rather than of a court in a host state. By the way, the problem of “forum shopping” does not apply only in relation between an EU Member State and a third country but also between two Member States. In some Member States remedies are more accessible than in others.

4. Conclusions and perspectives Much has been done at the EU level as well as by the individual EU Member States to prevent business-related human rights abuses. Th e European Union claims to be a strong supporter of the United Nations Guiding Principles. However, the Commission’s intention to launch an EU Action Plan on Responsible Business Conduct, which would address the implementation of the Guiding Principles, has not yet materialised. Th erefore, the EU as such has not yet clarifi ed the promotion of due diligence standards and access to remedies as elements of a future overall policy framework. Although the European Commission’s past leadership on business and human rights had a catalytic eff ect on many actions in the EU and beyond, it seems that the European Commission has lost its momentum. Th erefore, we assume that, at present, the focus lies with

49 FRA Opinion – 1/2017 [B&HR], Vienna, 10 April 2017. 50 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 51 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations.

164 national action plans and their implementation in the Member States. Some Member States have introduced progressive tools which go beyond the consensus within the EU. Th ose examples of best practices may however infl uence future EU contributions. As for the negotiation of an international legally binding instrument on business and human rights the EU emphasises that such an instrument should be fully consistent with the existing legal obligations and should ensure the highest level of human rights protection. To be acceptable for the European Union, it has to provide concrete duties of both transnational and national companies and it has to be built upon the UN Guiding Principles. Th e EU’s position for negotiations on such an instrument has to factor in its possible impact on EU companies as well as the view of civil society. For the instrument to be successful, it is crucial that it enjoys the support from the key economies. However, in the light of the latest developments, gathering such support does not seem to be realistic in the near future.

165 13 Czech National Action Plan for Business and Human Rights

Martin Archalous *

On October 23rd, 2017, the Government of the Czech Republic approved its fi rst National Action Plan for Business and Human Rights. By this decision, the Czech Republic joined ever-growing group of countries that joined this successful international initiative.1 Th is text explains what a National Action Plan (or NAP) is, how the Czech NAP came into existence and fi nally, what does it actually include.

1. Defining the problem and looking for a solution To fully understand what a NAP is, we must fi rst go back to the 1970s‘. Th at’s when the topic of transnational business and its impact on human right fi rst came into wider debate. Th e problem was clear: Transnational business operates internationally, the law is confi ned by national borders. And although most companies respect human rights as “moral obligations” regardless of applicable law, some don’t. How to prevent them from doing so, get victims an access to remedy and provide level playing fi eld where everyone respects basic human rights standards? Th ere were many initiatives to address his problem. First major initiative was so-called “Code of Conduct for Transnational Corporations” proposed in 1973 at the UNCTAD conference in Chile. However, the idea never came into fruition. It took 7 years just to start works on the Code, and 10 more years to fi nish it – only to be universally refused in 1990. Th e main reason for the disagreement was an ideological clash between industrially developed and developing countries. While the fi rst proposed a non-binding “guidelines,” the latter hoped for a legally binding international law instrument. After the failure of the Code, there were few more attempts, but mostly unsuccessful (usually for the same reasons – disagreements between developed and developing countries) – the most successful initiative was the UN Global Compact, which is nonbinding and voluntary. Th e breakthrough – or rather, a diffi cult compromise – came in 2011. By then, the UN Council for Human Rights approved so-called “Guiding Principles”. Th e idea was following: Since the states cannot agree on single legally binding contract and since international law instrument isn’t binding to private entities anyway, let’s set guidelines only. Th e states can choose what is relevant to them and enact fi tting measures – of their * Mgr. Martin Archalous. Author worked as the secretary of Business and Human Rights Working Group at the Offi ce of the Government. Views stated in this text are author’s personal views only. 1 Th e plan itself can be found here: In English: https://business-humanrights.org/sites/default/fi les/documents/ cz_nap_bhr_2017-2022_-_draft_english_translation.docx In Czech: https://www.vlada.cz/assets/ppov/rlp/ aktuality/ma_KORNARFB2TRM.docx

166 own free will, but in the accordance with the principles. Th e companies, meanwhile, are free to do the same – again, not because they are obliged by law, but because of moral and ethical reasons, and because of the shared responsibility for level playing fi eld. Th e Guiding Principles rest on three pillars – the fi rst one is aimed at the state, the second one at the business enterprises, the third one provides for remedy. When implementing the Principles, states should pick the issues they consider most pressing, and are free in choosing a solution. Th en, states are advised to prepare a National Action Plan where they summarize their fi ndings and intentions. How does this look in practice? For example, the British NAP builds on the centuries- long tradition of corporate governance culture and mostly tries to support companies in voluntary internal commitments. Netherlands, as a traditional seat of large transnationals puts emphasis on relations inside groups of companies, duties and responsibilities of highest management and international cooperation. Sweden, a traditional leader in this fi eld, mostly describes current state of aff airs and commits to develop mechanisms already in place. Th e Offi ce of the Government of the Czech Republic (Department for Human Rights), was tasked with creating the Czech NAP in late 2015. Th e important fact came to attention of government offi cials – this cannot be done in directive, administrative, from-the-above way. Since the NAP is not binding, the business sector must accept it on its own free will. Th erefore, it must be included in its drafting from the very beginning. Th at’s why the working group was created.

2. The working group Th e working group for business and human rights, tasked with drafting Czech National Action Plan, was created in late 2015 by joint decision of the Minister for Human Rights and the Minister of Foreign Aff airs. Th e Offi ce of the Government of the Czech Republic was chosen to provide administrative and technical support for the working group. Th e group itself was “quadri-partite,” comprising of representatives of the civil service, NGOs, trade unions and the business sector. Various NGOs took very keen interest in the aff airs of working group, as this project was in line with their own long-term agenda. (Some of the participating NGOs are part of international working groups dealing with this topic on UN level.) Th e business was represented by the Confederation of Industry (Svaz průmyslu a dopravy), but several individual companies took interest in the activities, with two or three major companies taking active role in the project, few other taking observatory role. At certain point in time, this working group comprised of 35 members, making the management of its operations an uneasy task. Th e group remained operational for 2 years, meeting at least 8 times in full session, accompanied with many informal meetings with subject matter experts to discuss isolated issues. Th e last meeting took place in late June 2017.

167 3. Approval by the government Th e working group made its last comments to the NAP in the late June (in person) and early July (by e-mail). After this, administrative staff of the Offi ce of the Government fi nished the text itself, sending it to the approval by the minister. Th e approval was granted on August 10th. Th e process was somewhat hurried in the last phase, mostly for practical reasons. General election was planned for October, and the general idea, supported by most members of the working group, was that the NAP should be approved before it. General election means transfer of agenda from the leaving cabinet to the new one, which would cause inevitable delays. In August, the NAP was subject to the Commentary procedure (semi-mandatory procedure opening a material to comments from all state bodies before it can be approved by the cabinet). Th is took place until August 24th. Over the course of August and September, the comments and confl icts were resolved and settled. Th e fi nal version of the NAP was sent to the Cabinet on October 3rd. Finally, the National Action Plan was approved by the government of the Czech Republic on 23 October 2017 (immediately after the election, but before the change of the cabinet). Th e Czech Republic thus became the 19th country to publish its NAP.

4. Contents of the Action Plan Although this text intends primarily to describe the creation of the NAP, it would be incomplete without at least short look at the contents of it. Before we look at the pillars of the NAP itself, a reader familiar with Czech government strategies and action plans would notice one particular feature – the introduction is much longer than usual in similar documents. Why is this so? During the preparation of the document, the drafters met a lot of misunderstanding, caused by the fact, that the topic is new – or rather this particular approach to the topic is new. Th e issue of business and human rights has been present for decades, but the Guiding Principles are less than 10 years old, and not widely known to public. Th erefore, the NAP should not only address particular issues and set goals to the civil service, but also educate. To inform civil service, the business, and wider public, on what „business and human rights” is. Th erefore, the NAP is much more descriptive and explanatory then an average government strategy document. As to the structure of the NAP, the fi rst idea of the drafters was to copy the structure of the Guiding Principles. Th at is, 31 sub-chapters corresponding to 31 principles. But, as stated above, the Guiding Principles are meant to be general and are intended for the whole world, not all of them applying at the situation in the Czech Republic. Th erefore, the original idea proved to be unrealistic. Th ere are some Principles that would be basically empty in the Czech Republic (Rights of indigenous people or language minorities, business operation in war-torn areas), while in some other areas, the list of possible activities was much longer (state-owned enterprises, labour law, migrant workers…).

168 Th erefore, a “reverse” approach was chosen. During the discussions in the working group, 12 key issues were chosen, that were considered relevant for the Czech Republic. Th ose issues are: Education and awareness-raising; Criminal liability of legal persons in the fi eld of human rights; Director Disqualifi cation; Protection of social service clients; Most serious infringements of working conditions; Trade in military equipment; Supply chains and confl ict minerals; Non-fi nancial reporting; Public procurement; State aid, guarantees and subsidies; State-owned enterprises; Foreign aff airs. Some of those issues span over multiple Principles. As stated above, it is not the purpose of this text to discuss them further, they are thoroughly explained in the NAP itself. Th e second “pillar” is even more descriptive and explanatory. It is aimed at the business actors themselves, where the government has no direct power. Pillar one contains measurable, well-defi ned goals for the state bodies, the second pillar is mostly guideline and general advice for the companies, separated into 5 categories: Internal policy commitment, Human rights due diligence, Remedy, Transparency, Cooperation. In the future, useful material to support companies in these areas should be gathered at single government-run website.2 Th e third pillar is aimed at remedy and access to justice. In theory, remediation and recovery of human right abuses should happen by cooperation of all interested parties. In practice, however, the third pillar works mainly with access to courts, legal aid and legal procedures. Th e most interesting sub-chapter (and according to many participants of the drafting process also the most important) is class action. Th e NAP provides for preparation of the Class Action Act, a long missing tool of collective remedy in Czech civil law. Th e act itself was already in preparation, the NAP just reinforces these eff orts.

5. Conclusion – and follow-up Although “rubber stamped” by the government, the NAP is only a piece of paper – a set of goals, that someone must achieve, and someone must check the progress. NAPs are supposed to be living documents, providing feedback and being updated regularly. (And this happens in the world, as several countries have already published their second, updated NAPs.) Th e Czech NAP is not to be diff erent in this aspect. Although the Working Group ceased its activity, some members will be consulted for the follow-up mechanism. Th ere will be two periodic reports (in 2020 and 2022) and possibly an updated NAP. Along with this, lots of other activities are planned. A more in-depth research is being commissioned, there will be conferences and other events… But the most important thing is, that the NAP was fi nished, approved and published, introducing the topic into our public debate. Th e topic of business and human rights is widely discussed on the international fi eld – not only in the UN, but also in the EU, the Council of Europe, the OECD – all these organizations published more or less binding recommendations in this area. By approving the NAP, the Czech Republic decided to take an active part in this discussion.

2 www.narodniportal.cz

169

Part IV.

CORPORATE SOCIAL RESPONSIBILITY AND LABOUR LAW

14 Legal aspects of Corporate Social Responsibility – – selected examples from the Czech Republic

Jana Ondřejková As the literal meaning of Corporate Social Responsibility (CSR) indicates, CSR relates to the issues that are not usually covered by legal liability. Traditional issues connected to CSR are the level of human rights protection, working conditions and fair remuneration, environmental protection, or anti-corruption.1 Th erefore, some companies, in order to distinguish themselves as more socially sensitive, adopt specifi c instruments of self- regulation coupled with internal or external oversight and reaching beyond their perceived legal obligations. At the same time, however, it does not mean that the above-mentioned issues or areas could not be covered by some legal regulation. In other words, there might be no legal vacuum, but the legal regulation and legal liability resulting thereof are considered insuffi cient or ineff ective. An intuitive question follows: should these observed shortcomings in legal regulation be overcome through the transformation of selected voluntary CSR issues into legal duties? For the next few pages I put aside the pragmatic approaches explaining why states and governments are being discouraged from similar regulatory attempts by fear of losing the important tax payers or employers if companies decide to transfer their registered seat or production into a more business-friendly, i. e. not so regulatory demanding, country. We can notice similar tendencies in attempts to shop for the least demanding forum.2 But the “legalization” of CSR is not limited to the enactment of new provisions by parliament. Th e decisive infl uence can also come from courts and their assessment of the legal nature of the existing CSR codes and commitments contained therein. In order to produce arguments regarding the problem of the legalization of CSR, the basic cleavages in doctrinal as well as public perception of the nature of the CSR need to be shown. For a part of the doctrine, the voluntary nature remains to be the decisive feature of CSR which renders it to be generally an ethical or philanthropic issue.3 Opposing voices claim that the state regulation represents an important factor in motivating companies to adopt their own CSR code of conduct. Th ese scholars even consider such regulation as a part of the duty of the government to prevent and prohibit possible harm caused by companies.4 A similar split can be observed on the part of public perception: in countries with so-called liberal market economies the legalization and judicial enforcement of CSR is

1 For general overview see e.g. Th e Ten Principles of the UN Global Compact available at: https://www. unglobalcompact.org/what-is-gc/mission/principles 2 See the contribution of prof. Harald Ch. Scheu in this volume. 3 MASAKA, D.: Why Enforcing Corporate Social Responsibility (CSR) is Morally Questionable. 13 Electronic Journal of Business Ethics and Organization Studies 2008, p.13 and foll. 4 See e.g. CAMPBELL, J. L.: Why would corporations behave in socially responsible ways? An institutional theory of Corporate Social Responsibility. 32 Academy of Management Review 2007, p. 946 and foll.

173 often considered an unwanted governmental intrusion into the freedom of enterprises. On the other hand, in the so-called coordinated market economies, such as Germany or France, CSR seems to be considered more as a kind of negotiated public responsibility with possible legal and judicial consequences.5 In general, we can observe diff erent kinds of legal aspects of CSR: 1.) Soft law, mainly at the international level, such as the UN Global Compact 6 or the OECD Guidelines for Multinational Enterprises;7 2.) Indirect regulation including e.g. conditions for the eligibility for public procurement;8 3.) Direct regulation focusing on CSR as such 9 or concerning issues that are traditionally viewed as a part of CSR (selected provisions of criminal and administrative law, as well as of tort law, corporate law, contract law, labour law, or regulation of legal aspects of unilateral statements such as public promise or public off er so that they could also cover CSR codes); 4.) Judicial enforcement of CSR commitments or judicial recognition of the legal relevance of CSR commitments for the dispute before the court or tribunal;10 and 5.) Legal theory that develops the concept of the horizontal eff ect of fundamental rights that further extends the scope of obligations of companies vis-à-vis private individuals as well as society or the environment as such.11

Incentives and limits for inclusion of selected aspects of CSR into Czech law When we focus on the Czech Republic, which we can classify as a liberal market economy, we fi nd the right to engage in enterprise and pursue other economic activity enshrined at the constitutional level in Article 26 (1) of the Charter of Fundamental Rights and Freedoms (the Charter). Yet, according to Article 41 (1) of this Charter, this fundamental right may be claimed only within the confi nes of the laws implementing these provisions.12 Th erefore, there may be, and indeed are, legislative limitations of the

5 For the intuitive, yet indicative character of this argument, see BECKERS, A., KAWAKAMI, M. T.: Why Domestic Enforcement of Private regulation Is (Not) the Answer: Making and Questioning the Case of Corporate Social Responsibility Codes. 24 Indiana Journal of Legal Studies 2017, p. 1 and foll. 6 https://www.unglobalcompact.org 7 http://mneguidelines.oecd.org/guidelines/ 8 In the EU, see e.g. art. 18 (2) of the Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement: ”Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fi elds of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.“ and similar provisions in other sectoral directives on public procurement, e.g. Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors. 9 In the EU e.g. Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-fi nancial and diversity information by certain large undertakings and groups. 10 See in detail the contribution of prof. Pavel Šturma in this volume. 11 See in detail the contribution of dr. Pavel Ondřejek in this volume. 12 Th e English translation of the Charter of Fundamental Rights and Freedoms, published as act No. 2/1993

174 right to engage in enterprise, but they must preserve the essence and signifi cance of this right.13 Next, the important role in the legal regulation of selected aspects of CSR is also played out by the international commitments of the Czech Republic – the so-called ‘obligations to protect’14 – mostly those of a human rights nature.15 However, these obligations mainly cover the duties to prevent either the most serious harms to individuals or those harms prohibited by international treaties (e.g. genocide, right to life, racial discrimination, or discrimination against women). Th ese state duties apply regardless of the nature of the actual perpetrators, who could also be companies. A similar kind of infl uence of the international commitments of the states on CSR of companies can be found e.g. in the environmental targets the states, which are not reachable without legislative instruments addressed, among others, to these companies. More detailed national regulation focusing directly on CSR stems from EU membership, such as Directive 2014/95/EU, which led to the amendment of the Act on Accounting (act No. 563/1991 Coll. as amended) and other related acts, and requires certain companies and groups employing on average more than 500 employees to disclose non-fi nancial and diversity information concerning environmental issues, social and employee matters, respect for human rights, and anti-corruption and bribery matters (§ 32f and foll. of the Act on Accounting). Already mentioned were the EU directives on public procurement, which were transposed into the Czech legal order. Since 2014, a bill on social entrepreneurship, which would enable socially responsible companies to gain special status, has been in preparation. Even after this period of time, the process for its possible legislative approval in Parliament has not formally commenced. Last but not least, we should not omit the soft law governmental instruments concerning CSR. Th e Ministry of Industry and Trade of the Czech Republic presented the revised version of the National Action Plan of Social Responsibility of Corporations in the Czech Republic in 2016.16 “Legalization” of CSR is presented as the last resort and the focus is set on spreading information about CSR through consultations with companies.

Legal regulation with significance for CSR Despite the assertion of the Ministry of Industry and Trade of the Czech Republic, when we compare CSR guidelines prepared by international organizations, we must

Coll., is available at: https://www.usoud.cz/fi leadmin/user_upload/ustavni_soud_www/Pravni_uprava/ AJ/Listina_English_version.pdf 13 Article 4(4) of the Charter. Th e Constitutional Court of the Czech Republic uses the proportionality test to assess the constitutionality of the legislative interference with this fundamental right, see e.g. the commentary to the Article 26 of the Charter written by Jan Wintr in WAGNEROVÁ, E. et al.: Listina základních práv a svobod: komentář. Praha: Wolters Kluwer ČR, 2012, pp. 573 and foll. 14 Diff erent from the ‘Responsibility to Protect’, which is the concept developed in legal theory and soft-law. 15 In general, see e.g. HAKIMI, M.: State Bystander Responsibility. 21 Th e European Journal of International Law, 2010, pp. 341 and foll. For the Member States of the Council of Europe see e.g.: MOWBRAY, A. R.: Th e Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights. Oxford: Hart Publishing, 2004. 16 See http://narodniportal.cz/narodni-akcni-plan-csr/

175 conclude that most of their propositions are already legally applicable in the Czech Republic. What remains partly or wholly uncovered is the possibility to sue Czech companies for applying lower CSR standards in countries with insuffi cient protection of human rights, employees, environmental protection etc. Th e criminal law of Czech Republic provides for the liability of corporations seated in the Czech Republic for crimes committed abroad (Art. 3 of the Act on the criminal liability of companies, Act No. 418/2011 Coll., as amended). It even establishes universal jurisdiction of Czech courts for crimes such as torture, terrorism, or genocide, regardless of the seat of corporation and place where these crimes are committed. However, more frequent but less serious off enses are covered by administrative law (such as environmental laws, product requirements, or access to information) and limited to territorial application within the borders of the Czech Republic. In addition, torts committed abroad are mostly assessed according to the laws of the state where the breach occurred,17 which means that delicts, which could be actionable in a court had they been committed in the Czech Republic, need not lead to similar consequences abroad. Th e situation in corporate and contract law does not diff er signifi cantly. On one hand, one of the leading commentaries to Art. 51 of the Business Corporations Act (Act No. 90/2012 Coll., as amended) considers the corporate social and environmental responsibility to be an important factor, that members of statutory bodies of companies should take into account during the exercise of their managerial duties.18 Also, the general provisions in Art. 1 and 2 of the Civil Code (Act No. 89/2012 Coll., as amended) that applies to all contracts, state that actions and stipulations contrary to good morals are prohibited and the provisions of the Civil Code must be interpreted in accordance with the Czech Charter.19 On the other hand, companies are free to use novel contract designs that, in relation to CSR, state e.g. the conditions that subsidiary companies or suppliers should meet under the business contract concluded with them. But, the same companies can limit or exclude the application of Czech private law by choice of foreign law and/or jurisdiction according to the rules of private international law. With regard to the legal nature of the CSR Codes already adopted by companies, the wording of the Czech Civil Code does not give a clear answer whether they could be considered a public promise or a public off er. On 21 November 2017, the fi rst Panel of the Constitutional Court of the Czech Republic rejected the admissibility of a constitutional complaint explicitly on the basis that CSR does not present a legally enforceable concept.20 By doing so, he indirectly confi rmed the decisions of lower courts that were of a similar opinion.21 Nevertheless, as the decision of the Panel of the Constitutional Court concerned only the admissibility of the complaint in question and

17 Art. 101 Act on the private international law, Act No. 91/2012 Coll., as amended. 18 ŠTENGLOVÁ, I. et al.: Zákon o obchodních korporacích: komentář. Praha: C. H. Beck 2017, pp. 150 and foll. 19 For an unoffi cial translation see e.g. http://obcanskyzakonik.justice.cz/images/pdf/Civil-Code.pdf. 20 Decision I.ÚS 3278/15 of the Constitutional Court of the Czech Republic, available at www.usoud.cz. 21 By lower courts I mean the district and regional courts that dealt with the case at issue before the constitutional complaint was lodged. I searched in the public databases of decisions of the Supreme Court and the Supreme Administrative Court of the Czech Republic, but I did not manage to fi nd any decision explicitly referring to the CSR (situation as of 6 March 2018).

176 did not deal with the merits of the case, other Panels or Plenum may advocate diff erent opinions in future. In the past, CSR was mentioned only in the statement of a party to the proceedings, but not in the reasoning of the Constitutional Court.22

Conclusion In the Czech legal order, most issues of CSR highlighted in the CSR guidelines are already codifi ed. However, applicability of these legal rules to the actions of companies abroad or to the contracts the companies concluded with parties from states with a lower level of protection of CSR goals is limited. Th erefore, the focus in the Czech Republic is not set primarily on the detailed legal regulation of the CSR, but on the broader enforceability of fundamental rights provisions before the courts and also in legal transactions in private law.23

22 See decision Pl. ÚS 83/06 of the Constitutional Court of the Czech Republic, available at www.usoud.cz. 23 See e.g. ONDŘEJEK, P.: A Structural Approach to the Eff ects of Fundamental Rights on Legal Transactions in Private Law, 13 European Constitutional Law Review 2017, pp. 281 and foll.

177 15 Right to Privacy vs. Employer’s Big Brother Practises

Martin Štefko 1

1. Introduction Th e European Court of Human Rights (ECtHR) decision Bărbulescu v. Romania (61496/08) unreported 12 January 2016 and overruled by the Grand Chamber decision of 5 September 2017 has raised important questions as to the boundaries of the employer-employee relationship.2 Although social media can be a valuable tool for businesses,3 it also causes serious problems in the workplace. Th e collision between privacy and employer profi t was inevitable. One spends more than a third of a day at the workplace; it is understandable that during this time, but especially during breaks, one has to deal with private or family matters.4 Th ese days, most people who are of working age have some kind of online presence, whether it takes the form of a personal Twitter account, MySpace, LinkedIn account, Facebook page, or posted comments and reviews on products, news articles, company websites, or other people’s social media pages.5 Another example is online communication. With the prevalence of social media, it is becoming harder and harder to separate personal and professional lives. Almost everything shared online, even privately, will be public. Problems occur when employees abuse work internet access for personal use during work hours, like in Bărbulescu. Mr Bogdan Mihai Bărbulescu exchanged fi ve short messages with his fi ancée on 12 July 2007 using a personal Yahoo Messenger account. He was also communicating with his brother in the same period.6 Th e messages concerned health problems and sex life.

1 Th is chapter was written thanks to fi nancial support given to the Charles University, Faculty of Law through the Program Research Centre for Human Rights (UNCE ). M. Štefko also works at Kocián Šolc Balaštík Law Firm. 2 Compare MATEJKA, J. K oprávnění zaměstnavatele kontrolovat práci zaměstnance pomocí moderních technologií (Th e right on the part of the employer to monitor employee work using modern devices and technology). 5 Právo a zaměstnání, 2003, pp. 7-16. 3 A benefi t of social media in the workplace is that it can be utilised as a public relations tool for companies. It allows a measure of company transparency through posts, blogs, and pictures and makes it easier for the average consumer to relate to the company. Companies can use social media to gather mailing lists, distribute sale and special off er information, showcase product pictures, and post positive media reviews. Using social media for business is a very inexpensive, often free, way to promote it to a wide audience. 4 See Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 57, ECHR 2012, and Benediksdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009. 5 Social media include various online technology tools that enable people to communicate easily via the internet to share information and resources. Th ese tools can encompass text, audio, video, images, podcasts, and other multimedia communications. 6 See the case Bărbulescu v. Romania (61496/08) unreported 12 January 2016 (ECHR), marginal number 7 of the judgment.

178 Social media has become a global issue, and the Bărbulescu judgment has rightfully attracted much press interest. It has also been widely reported, which permits us to ignore the actual facts to a certain degree (as most newspapers have done). Our aim is to boldly go where no publication has gone before. An employer’s right to snoop-then- dismiss has not yet been considered suffi ciently in light of diff erent Central and Eastern European legal traditions. Th is chapter explains the ins and outs of off -duty conduct and employee rights based on the Bărbulescu case with regard to diff erent legal cultures in former communist countries, such as the Czech Republic, Poland, Romania, and Slovakia. In these countries, regulations on privacy for certain types of private, off -duty activities are stricter and more protective (the fi rst section of this chapter). Although the extent to which an employer can use social media to monitor an employee’s use of social media (in and outside of the workplace), and the repercussions for employers and employees where social media is misused (the second section of this chapter) vary from country to country, there is a commonality in all four countries (and this chapter): constitutional and union protection (Section 2 of this chapter), codifi ed labour laws (Section 3), the addition of layers of protection in civil codes and data protection acts (Section 4), and the statutory duties to work and not to misuse employers’ devices (Sections 5 and 6). Momentum has built up, and this prompts politicians to make decisions. Individuals have already lost jobs because of posts or comments on social networking sites. Although Mr Bărbulescu was “Yahoo fi red” in accordance with the law and the Convention for the Protection of Human Rights and Fundamental Freedoms, it is time to review the law and employer policies. As technology transforms our work and personal lives, these laws and policies will need to be fl exible and reviewed regularly to keep up with the ever-changing social media landscape.

2. Constitutional, International, and EU Protection Partly due to the shared history and close legal tradition (especially between Czechs and Slovaks who established a common state in 1918), and partly because of both international obligations7 and the level of harmonisation with EU law,8 all four Central and Eastern European countries react alike in their respective regulations. Privacy is protected on the constitutional level in Articles 7 and 10 of the Czech Charter of Fundamental Rights and Freedoms,9 Articles 19 and 21 of the Slovak Constitution,10 Articles 26 and 28 of the Romanian Constitution,11 and also in Article 10 of the Slovak

7 Concerning the European legal system, the right to respect one’s private and family life is embedded mainly in Article 8 of the European Convention on Human Rights. All four countries ratifi ed the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 8 See Directive 95/46/EC. 9 Th e Charter of Fundamental Rights and Freedoms was adopted as an appendix of the statute No. 23/1991 Collection. Regarding the extraordinary situation during 1992, when the Charter’s predecessor in the Czech Republic was abolished, the Charter was declared again on 16 December 1992 as a component of the Czech constitutional order (Manifestation No. 2/1993 Coll.). Th e Charter was amended by Act No. 162/1998 Coll. In fact, the Charter has the same legal eff ect as the Czech Constitution. 10 Act No. 460/1992 Collection as amended. 11 Th e Constitution of Romania was adopted in the constituent assembly session of 21 November 1991

179 Charter of Fundamental Rights and Freedoms 12 and Articles 47 and 51 of the Polish Constitution.13 Th e inviolability of the person and of one’s privacy is guaranteed in Article 7 I of the Czech or Slovak Charter. Th is may be limited only in cases provided for by law. Th e Czech Charter endorses every individual with the right to be protected from any unauthorised intrusion into one’s private and family life. Moreover, everyone has the right to be protected from the unauthorised gathering, public revelation, or other misuse of one’s personal data. In Poland, everyone has the right to legal protection of one’s private and family life, of one’s honour and good reputation, and to make decisions about one’s personal life. According to the Romanian Constitution, public authorities shall respect and protect intimate, family, and private life. Any natural person has the right to freely dispose of oneself unless by this, one infringes on the rights and freedoms of others, on public order, or morals. Th e Slovak Constitution provides the right to protection against unwarranted interference in one’s private and family life. Everyone has the right to protection against the unwarranted collection, publication, or other illicit use of one’s personal data. Th e Constitution explicitly guarantees the privacy of correspondence and secrecy of mailed messages and other written documents and the protection of personal data. No one can violate the privacy of correspondence and the secrecy of other written documents and records, whether they are kept in privacy or sent by mail or in another way, with the exception of cases to be set out by law. Equally guaranteed is the secrecy of messages conveyed by telephone, telegraph, or other similar means. Th e applicability of human rights under the European Convention on Human Rights 14 to respective legal orders is a complicated matter. Employers are required to obey the Convention if they are a public authority. If not, then they are required to comply with national law.15 Another layer of protection, this time mainly against the encroachment on employees’ private communication is enshrined in the general regulation on data protection. Employers do not only need lawful grounds for processing data, but they also have to provide the legal data processing policy. Because employers generally cannot base the processing of personal data of employees on the ground of consent, another legal ground must apply. Th is means that the processing must be necessary (i.e., proportionate), for one or more of the reasons provided by the general regulation on data protection.

and entered into force pursuant to its approval by the national referendum of 8 December 1991. It was published in the Offi cial Gazette of Romania, Part I, No. 233 of 21 November 1991. 12 Th e same Charter of Fundamental Rights and Freedoms that was adopted as an appendix of the statute No. 23/1991 Collection. In the Slovak Republic, it has never been amended. 13 Th e Constitution of the Republic of Poland (Konstytucja Rzeczypospolitej Polskiej) was adopted by the National Assembly of Poland on 2 April 1997, approved by a national referendum on 25 May 1997. Th e Constitution has been amended once; the amendment was passed by the Sejm on 8 September 2006. 14 Th e Convention for the Protection of Human Rights and Fundamental Freedoms. 15 BRENNAN, D.: Monitoring employee emails - how far is too far? P. & D.P. 2016, 16(4), 3-5 Privacy & Data Protection, p. 4.

180 3. Labour Codes Czech, Polish, Romanian, and Slovak labour law is codifi ed. Th erefore, the most suitable provisions are contained in the respective national labour codes. In two of the four countries, Poland and Slovakia, the protection of privacy is declared to be a part of fundamental principles that govern labour law in Article 11 of the Slovak Labour Code 16 and Article 11(1) of the Polish Labour Code.17 Being declared a fundamental principle of labour law stresses its importance in both countries. Th e Romanian Labour Code 18 protects employee privacy in Section 40 II Lit. i, under which an employer has the duty to ensure the confi dentiality of employee data that are private in character. Although the Czech Republic and Romania are bound by the same international agreements like Poland and Slovakia, the legislature did not proclaim employee privacy to be as important. Th is enabled the Czech Supreme Court to rule repetitively and positively on the covert surveillance of employees,19 even so, it was inconsistent with Article 316 of the Czech Labour Code,20 which sets forth rules compatible with those in Polish or Slovak law. In one case, Czech courts decided that the breach of discipline amounted to gross misconduct and, therefore, was so grave as to justify summary dismissal.21

4. Civil Codes and Public Data Protection Laws Because of human dignity, which is inevitably involved, national civil codes provide a second layer of protection: Article 81 of the Czech Civil Code,22 Articles 23 and 24 of the Polish Civil Code,23 Article 71 of the Romanian Civil Code,24 and Article 11 of the Slovak Civil Code. Regulations contained in the civil codes are, however, considered to be general and their application is superseded by special regulations provided by public laws on data protection: 25 Act No. 101/2000 Collection as amended in the Czech

16 Act No. 311/2001 Collection as amended. 17 Act from 26 June 1974 as amended in Polish Dz.U. 1974 Nr 24 poz. 141. On the history of Article 11(1) of the Polish Labour Code see LISZCZ, T.: Prawo pracy, 5th Edition, Warszawa: LexisNexis, 2008, p. 82-85. 18 Codul Muncii; published under No. 53/2003 Collection. 19 Decision 16 August 2012, fi le number 21 Cdo 1771/2011 and decision 7 August 2014, fi le number 21 Cdo 747/2013. 20 Act No. 262/2006 Collection as amended. 21 Decision 16 August 2012, fi le number 21 Cdo 1771/2011. 22 Act No. 89/2012 Collection. 23 Act on 23 April 1964, as amended, Dz.U. 1964 Nr 16 poz. 93 24 Codul civil al României, commonly referred to as Noul Cod Civil – the New Civil Code, offi cially Law No. 287/2009 on the Civil Code, published in the “Offi cial Gazette of Romania”, part I, no. 511 of 24 July 2009. Cf. SABĂU, G. V.: Brief Considerations Regarding the Juridical Protection of Private Life in the Regulations of the New Romanian Civil Code in AGORA International Journal of Juridical Sciences, ISSN 1843-570X, E-ISSN 2067-7677, No. 1 (2014), pp. 66-71. 25 See MÉSZÁROS, P.: Civilnoprávny rozmer ochrany osobních údajov In: Barancova, H. (ed.): Monitoro- vanie zamestnancov a právo na sukromný život, Bratislava 2010, p. 110 or FLOREK, L. (ed.): Kodeks pracy. Komentarz, 5th Edition, Warszawa: Lex and Wolters Kluwer business 2009, p. 88.

181 Republic,26 the Act of 29 August 1997 on the Protection of Personal Data in Poland,27 Romanian Act No. 677/2001 to ensure the confi dentiality of employee data of having a private character,28 and Act No. 122/2013 Coll. on the protection of personal data and on changing of and amending other acts in the Slovak Republic. Respective national orders protect the right to privacy in criminal codes as well.29

5. Duty to Work During Working Hours Th e ordinary laws mentioned grant an employee protection of their privacy in the workplace. Employers shall respect employee dignity and human rights. Even so, an employee’s primary goal is to meet their statutory obligations. Being hired to render services and paid in return throughout the employment relationship, an employee is obliged to perform dependent work. Allowing employees to access online social media profi les during work hours can be a distraction. Employees may lose valuable work time playing games, talking to friends, and updating their own personal profi les. Th erefore, the law provides a clear rule to keep employees away from the distraction of social media networks. In accordance with Section 301 of the Czech Labour Code, Article 100 of the Polish Labour Code, Section 39 II of the Romanian Labour Code, and Article 81 of the Slovak Labour Code, an employee has to work responsibly and properly, to be at the workplace at the beginning of working time, to utilise the working time for assigned work, to leave only after the termination of the working time, to protect employer property against damage, loss, destruction and abuse, and to refrain from acting in a manner contradictory to the justifi ed interests of the employer. In short, an employee shall work and not relax during working time. Th is fundamental aspect of labour law has been upheld by the ECHR in Bărbulescu 30 in accordance with previous mainstream opinions in Romania, Poland,31 and Czech supreme court decisions.32 Th e ECtHR considered the existence of employer internal regulations that prohibited employees from using company computers for personal purposes as a strong argument

26 Cf. MATEJKA, J.: Internet jako objekt práva, hledání rovnováhy autonomie a soukromí (the Internet as the Object of Law) Prague: CZ.NIC, 2013, z.s.p.o., p. 150. 27 Unifi ed text: Journal of Laws of 2002 No. 101 item 926 with amendments. 28 Th ere are two other special laws concerning the protection of privacy: Act No. 506/2004 on the processing of personal data and the protection of privacy in the electronic communications sector and Act No. 365/2002 on electronic commerce. 29 In Romania, see Section 195 of the Criminal Code. 30 Judgment Bărbulescu, marginal numbers 57, 58 and 59. 31 See the opinion expressed by the Labour Law Department of the Polish Ministry of Labour and Social Policy in a letter dated 1 August 2007 (DPR I-0712-6/JS/MF/07), which was confi rmed by the stance of the Minister of Labour and Social Policy on 24 January 2008 (DPR-I-0712-6/JS/MF/07). Th e Ministry held that such entitlement of the employer resulted directly from an obligation to “organize work ensuring full use of working time”, which is governed in Art. 94 section 2 of the Labour Code, and that an employee who was using business email for personal purposes was breaching an obligation to work diligently and scrupulously. See http://www.schoenherr.eu/de/knowledge/knowledge-detail/poland-internal-employers- regulations/ (Accessed 10 December 2017). 32 Decision 16 August 2012, fi le number 21 Cdo 1771/2011 and decision 7 August 2014, fi le number 21 Cdo 747/2013.

182 against Mr Bărbulescu’s claim.33 Th e same is true for the ban on private telephone use or the storage of personal belongings.34 Th e Bărbulescu case shows that a dismissal can be justifi ed even though no actual harm has ever been caused to the employer’s business through the breach. Although the ECtHR endorses the Romanian courts’ reasoning that the dismissal was justifi ed because the employer was empowered to check ‘the manner in which professional tasks are undertaken, and because misuse of social media could damage the company’s IT systems, or engage in illicit activities in the company’s name, or reveal the company’s commercial secrets, there is no evidence that the employee’s personal e-mailing had interfered with his work or caused other harm to the employer. Simply, the fact of using the employer’s computer in a prohibited manner was taken to be suffi cient. Media reports concentrate on the employer policy in place regarding the personal use of company time, resources and property, and the monitoring of employees at work, but they ignore respective statutory provisions. With regard to the provisions cited, it has to be pointed out that there is no need to issue was that specify and implement a social media policy in order to limit the use of company property for personal internet media.35 Th e legal duty is entrenched in laws. However, most workplaces in Central and Eastern European similarly to those in Western Europe tolerate a limited amount of personal use of company equipment on the grounds that a blanket prohibition would be impractical or even unfeasible. It is because of this on-off relationship with regard to this issue that Bărbulescu remains a useful reminder to Central and Eastern European countries to have clear policy in the workplace as well.

6. Monitoring Personal Internet Use Monitoring employee use of social media raises further considerations for employers as they will need to comply with a potentially wide range of legislation in the applicable jurisdiction. All four countries have very strict legislation governing monitoring. Telephone calls and e-mails from employer premises are covered thanks to the ECtHR’s judgment in Halford 36 and with regard to personal Internet use to Copland.37 Th erefore, it is signifi cantly easier to restrict access to certain websites as part of an employer’s IT policy 38 than it is to monitor employee social media activity. Th e general position is that employers may not, without compelling reasons, violate employee privacy in the workplace or in the common areas of the employer premises.39

33 See judgment Bărbulescu, marginal numbers 38 and 39. 34 See Peev v. Bulgaria, no. 64209/01, 26 July 2007. 35 Nevertheless, it is diffi cult to conclude if employers may forbid employees from using their personal cell phones or to bring their personal laptops to the workplace. 36 Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III. See judgment Bărbulescu, marginal number 36. 37 Copland v. the United Kingdom (no. 62617/00, ECHR 2007-I. 38 Th ere is no recognised employee right to the internet in the Czech, Polish, or Slovak legal traditions. 39 Article 316 of the Czech Labour Code, Article 23 I point 5 of the Polish Act of 29 August 1997 or Article 11 of the Slovak Labour Code (Fundamental Principles). From case law compare the Polish Supreme Court decision 25 July 2003, fi le number I PK 330/2002.

183 If an employer has serious grounds for monitoring, the most highly recommended policy prior to the launch of monitoring comprises three steps. Employers should (i) discuss the scope, manner and duration of the monitoring mechanism with employee representatives (or the employees themselves if there are no representatives) prior to its introduction; (ii) inform the employees;40 and (iii) obtain their consent.41 In the Bărbulescu case, the ECtHR re-confi rmed that an employer may check the time spent on the internet.42 Th e Court held, by six votes to one, that there had been no violation of Article 8 of the Convention. It seems reasonable for the sake of pending disciplinary proceeding to surveil the nature of the websites browsed and the dates and times of browsing. However, it is restricted to monitor the content of pages visited, chat, or email communications even if they are sent from a work email address (name@ company) as this would be considered an invasion of privacy under Czech, Polish, Romanian, and Slovak law.43 Th e employer monitoring was held to be limited in scope and proportionate since it did not examine other data or documents that were stored on the computer. In addition, it was only after Mr Bărbulescu denied this charge that the company investigated by accessing the account. In contrast to these countries, there is nothing comparable to a French doctrine that internet use during working hours is presumed to be for professional purposes and so an employer can have almost unrestricted access to an employee’s internet usage during working hours. Oddly enough, there are some similarities among the Czech, Romanian, and French court decisions on one hand, and the Bărbulescu case on the other. For example, according to the Czech Supreme Court’s decision, an excessive use of social media during working hours can justify an employee’s dismissal, and covert surveillance can be performed under not very limited circumstances, such as to prevent and/or detect crime. Th e Czech Supreme Court held that an employee who had made excessive use of the internet for non-professional reasons during offi ce hours had committed an act of gross misconduct justifying immediate dismissal. To the disillusionment of most practitioners, the Czech Supreme Court ruled so despite the fact that the employer monitored the employee, who was later dismissed, without having informed him in advance.44 In an interview I conducted with the three justices in this case, they reasoned that

40 Halford v. the United Kingdom, judgment of 25 June 1997, marginal number 41. Judgment Bărbulescu, marginal number 43. 41 Although this requirement is not set forth in the law, such a practice may mitigate legal consequences connected with the violation of employee privacy, because this limits reasonable expectations of privacy. See BARANCOVA, H. (ed.): Monitorovanie zamestnancov a právo na sukromný život, Bratislava 2010, p. 114 and footnote number 171; MORÁVEK, J. Kdy je možné evidovat přístup zaměstnance na internet a otevřít jeho e-mailovou poštu? (When is it possible for an employer to monitor employee use of the internet including his or her e-mails?) Právo pro podnikání a zaměstnání, 2010, Issue 3, p. 3-7; FLOREK, L. (ed.): Kodeks pracy. Komentarz. 5th Edition, Warszawa: Lex and Wolters Kluwer business, 2009, p. 90; or the Polish Supreme Administrative Court decision 4 April 2003, fi le number II SA 2135/02, M. Prawn. 2003/10/435. 42 Judgment Bărbulescu, marginal number 59 in fi ne. 43 Judgment Bărbulescu, marginal number 60. 44 Decision 16 August 2012, fi le number 21 Cdo 1771/2011.

184 the employee’s behaviour exceeded any standards the labour law lays down. Th is legal opinion was supported by another judgment in August 2014.45 Despite the lack of court decisions, employees should use the internet reasonably and responsibly. Simply put, there are certain fundamental duties on the employee side that cannot be ignored such as one’s duty to work during one’s working hours.46 In contrast, the Slovak Local Court in Bratislava, when confronted with almost the same critical facts, ruled diff erently, and Polish experts totally refuse secret monitoring.47 Th is opinion has been supported by Polish administrative courts.48 In the Slovak case (fi le number 14C/134/2009) an employer dismissed an employee for spending a considerable amount of working time on Facebook. Th e employee argued that she used Facebook for professional purposes as it was a more eff ective means of communicating with contractors. In the Czech case mentioned above, the employee was said to have spent 102.97 hours looking at internet pages that were unconnected to the work performed, while the Slovak employee spent 31.5 hours searching the internet.49 Surprisingly, these fi gures were of no importance. Th e court held that the dismissal was unlawful because the employee was never warned by the employer about the extent to which internet use was permitted. In another Slovak case, an employee was dismissed for using the fi rm’s email for personal communication and for chatting with other co-workers for a considerable part of the working day. As the employer had instituted internal guidelines that included restrictions on the use of the internet and the employer’s right to monitor the employees, the court held that the dismissal was lawful.50

7. Conclusion Th e group of ‘Facebook fi red’ is increasing exponentially 51 not only in the USA but also in Central and Eastern Europe. Not only must employers decide if the use of social media outweighs the potential for negative impacts; legislatures and employers are also facing the need to develop social media policies and regulations that allow society and companies to reap the positive benefi ts of social media use while minimizing the negative eff ects.

45 See Decision 7 August 2014, fi le number 21 Cdo 747/2013. 46 Of course, it is clear that this monitoring breached data privacy, and the employer could be fi ned by the respective administrative agency. 47 FLOREK, L. (ed.): Kodeks pracy. Komentarz, 5th Edition, Warszawa: Lex and Wolters Kluwer business, 2009, p. 90. 48 See Wojewódzki Sąd Administracyjny w Warszawie fi le number II SA/Wa 453/12 and the Supreme Administrative Court’s decision fi le number I OSK 2436/12. 49 According to the employer, she spent her working time on pages like www.facebook.com, www. hokejportal.sk, www.mailbook.com, www.ticketportal.sk, or www.nhltv.com. 50 See KOTIRA, P., HORNACEK, V.: Kontrola e-mailovej komunikacie zamestnancov podla právnych úprav ve vybraných členských štátov EÚ. In: BARANCOVA, H. (ed.): Monitorovanie zamestnancov a právo na sukromný život, Bratislava 2010, pp. 127-144. 51 For Poland compare two well-known cases: http://poznan.wyborcza.pl/poznan/1,36037,19210273,ewa- wojciak-nie-zlamala-prawa-piszac-o-papiezu-na-facebooku.html and http://wyborcza.pl/1,76842,8689677, Zwolniona_przez_Facebooka__Skieruje_sprawe_do_sadu.html (Accessed 1 April 2018).

185 Apart from the ECtHR’s test of a reasonable expectation of privacy, there is little legislation directly governing the use of social media in the workplace in the Czech Republic, Poland, Romania, or Slovakia, and it is seen as an area that employers should regulate through the use of policies. Nevertheless, there are general principles and legal duties that remain applicable even under such circumstances. An employee’s fi rst and last task is to render services on behalf of their employer and to not misuse employer devices for private purposes. On the other hand, we cannot ignore the fact that sometimes calls to one’s partner or children are necessary. It is reasonable that during working time, but especially during break time, one has to deal with doctors, authorities, or other institutions whose offi ce hours are identical with those of the regular working day, and employees simply have no other choice. It can also be asserted that blog postings made outside of one’s employment are part of employee freedom of expression, which is a right that can be exercised freely by an individual unless one makes false statements with the intention of harming the employer. Th e slowly increasing volume of case law in this area illustrates the way in which human rights, data privacy, whistleblowing, and discrimination legislation impacts this issue. While employers may use social media to source information about employees, they must remain mindful of any parameters imposed by Czech, Polish, Romanian, and Slovak laws. In these harsh times, employers are best advised to put in place clear social media policies, ensure that employees are made aware of these policies (to lower their reasonable expectations), and obtain written consent from employees to any monitoring. On the contrary, they should never request job seekers or employees to disclose user names and passwords in order to log in to private social media accounts in the presence of their (prospective) employer.

186 16 Fundamental Right to Privacy and Nominal Publication of Public Servants’ Remuneration : Analysis of Understanding FSC on RE N. 52.777 / SP

Jeferson Osvaldo Vieira 1 Vinícius Almada Mozetic 2

1. Introduction On April 23, 2015, after concluding the judgment of the Extraordinary Remedy with Appeal n. 652.777 / SP, under a report from Judge Teori Zavascki, the plenary of the Federal Supreme Court established the understanding that “It is legitimate to publish, even in an electronic website maintained by the Public Administration, the names of its employees, their correspondent salaries and pecuniary benefi ts.” Th e remedy resulted from an action proposed by a public servant of the Municipality of São Paulo, in which it aimed to exclude the disclosure of information about its remuneration from the electronic website maintained by the municipality. Although it was an individual action, the remedy was aff ected by the regime of general repercussion and the debate was enriched by the intervention, as amicus curiae, of various associations, unions and federations, as well as the Union , which shows that the discussion overfl ows the limits of the federative entity that was part of the action, since the focused publicity can, in theory, be carried out by any public organ of the country, and consequently reach all the occupants of public posts or jobs in diff erent spheres of the Administration. Th e given decision has a particular importance, since it represents the position of the last interpreter of the constitutional charter on the matter, infl uencing the conduct of all the organs of the Executive, Legislative and Judicial Branches. Th e grounds presented in the judgment will be presented and it will be debated whether the decision adequately considered all the constitutional principles involved and especially the fundamental rights attained, in particular, the fundamental right to inviolability of the privacy and private life, assured at the article 5, subsection X, of the Constitution of the Federative Republic of Brazil, presenting a proposal of conceptual delimitation of this right.

1 Mestrando e membro do grupo de pesquisa em Direitos Fundamentais Civis do Programa de Pós- graduação em Direito da Universidade do Oeste de Santa Catarina. Docente do curso de graduação em Direito da Universidade do Oeste de Santa Catarina. Magistrado do Tribunal de Justiça de Santa Catarina. 2 Pós-Doutor e doutor em Direito pela Universidade do Vale do Rio dos Sinos – UNISINOS; Professor e membro do grupo de pesquisa do Mestrado em Direito da Universidade do Oeste de Santa Catarina UNOESC – Chapecó (Dimensões Materiais e Efi caciais dos Direitos Fundamentais). vinicius.mozetic@ unoesc.edu.br

187 Notwithstanding the unanimity among the eight ministers who participated in the trial, in the sense of inexistence of confl ict, it will be tried to discuss whether such confl ict did not happen and, if it did, how it should be approached, from the premises that integrate the theory of principles, developed by Robert Alexy.

2. The Extraordinary Remedy Decision with Appeal N. 652.777/Sp Th e Rapporteur of the Extraordinary Remedy, Judge Teori Zavascki, pointed out that the matter had already been dealt with by the Federal Supreme Court with a deal proposed by the Regimental Appeal in Suspension of Security n. 3,902, which involved exactly the disclosure of the remuneration of public servants of the municipality of São Paulo. By understanding that the vote, then given by Judge Ayres Brito, examined all the arguments espoused in the contested judgment in RE 652.777, it was considered appropriate to incorporate it as a reason for deciding. Because of the importance of the analysis for the debate that will be raised later, a direct quotation seems to fi t: 12. Initiated by the judgment that we are dealing with a demanding situation of conciliation of constitutional principles in an apparent collision state. Apparent confl ict, no more than that. On the one hand, there is the principle of administrative publicity (caput of article 37). A principle that means the public duty to disclose public acts. Duty eminently Republican, because the management of the public budget should happen with maximum transparency. Of course, exceptions are also constitutionally open, which are “those whose secrecy is indispensable to the security of society and the State” (item XXXIII of article 5). Th erefore, respecting the constitutional exceptions, the fact is that “everyone has the right to receive from the public agencies information of their particular interest or of collective/general interest, which shall be provided within the term of the law, under penalty of responsibility (…)”, according to the fi rst part of the same article 5. Th is is how individuals are able to defend themselves against the eventual illicit attacks of the State, while citizens can make concrete use of the right that our Constitution assures them by § 2 of its article 72: “Any citizen, political party, association or trade union is a legitimate part to denounce irregularities or illegalities before the Court of Auditors of the Union, in accordance with the law.“ 13. On the other hand, there are discussions about what would assist the municipal offi cials not to divulge their gross remuneration. Th is is because it implies a violation of their privacy and private life, threatening their personal and family security. General knowledge facilitates the formatting of a type of database that would enable third parties to plan fi nancial scams against the municipal employees and harass them personally for unconfessable purposes. 14. My vote is already perceived. Th e gross remuneration, positions and functions they hold, the organs of their formal stocking, everything is constitutive of information of general interest. Th erefore, exposing the offi cial disclosure.

188 15. In the subject, it is not even possible to speak of privacy or private life, since the data subject to the disclosure in question concern public agents as public agents themselves; or, in the language of the Constitution itself, state agents acting “as such” (§ 6 of article 37). As for the physical security of the employees, whether personal or familiar, of course, it will be somewhat fragile with the nominalized disclosure of the data being discussed, but it is a type of personal and family risk that is mitigated by the prohibition of the revelation of home addresses and IDs of each employee. Moreover, it is the price paid for the option of a public career in a Republican state. State that only by explicit legal enunciation based on the Constitution is that it ceases to act in the space of transparency or visibility of its acts, especially those related to those items necessarily present in the annual budget law, as is the case of public revenues and expenditures. It is the reason that the attacks on such budget law are typifi ed by the Constitution as “crimes of responsibility” (item VI of article 85). 16. In short, this high prevalence of the principle of administrative publicity is nothing but one of the best ways of realizing the Republic as a form of government. If, on the one hand, there is a necessary republican way of administering the Brazilian State, on the other hand, it is the citizenship itself that has the right to see its republican administered State. “How” the public thing is administered preponderate over “who” administers it – Norberto Bobbio would say –, and the fact is that this public way of managing the state machine is a conceptual element of our Republic. 17. In any event, the refusal to take precedence over the principle of administrative disclosure would, in the present case, be regarded as a serious breach of public policy. 18. I keep the decision under review, dismissing the regimental appeals. Th is is my decision. It is inferred from the statement that the constitutional principle of administrative publicity, as set forth in article 37, caput, of the Federal Constitution, was the main normative provision that guided the vote. In support, the command inscribed in item XXXIII of article 5 was invoked, according to which “everyone is entitled to receive from the public agencies information of their particular interest or of collective/general interest, which shall be provided within the law, under penalty of responsibility, except those which confi dentiality is essential to the security of society and the State”, especially so that the citizen can exercise the right of denunciation before the Courts of Accounts, which is given by article 74, paragraph 2, of the constitutional charter. It is also worth noting that the eminent rapporteur has stated that, in his view, the nominal disclosure of public servants’ salaries does not aff ect their fundamental right to privacy and private life, which would not be aff ected, because the data subject to disclosure is related to the exercise of public offi ce. In addition to the reasoning cited above and which incorporates his vote, Judge Teori Zavascki points out that the Law on Access to Information (Law 12,527/2011),

189 applicable to all spheres of Administration, which “even without expressly disposing of the obligation to disclose the personal remuneration of the employees“, imposes on the Administration the disclosure of “information of collective or general interest produced or guarded by them“ (article 8). While accepting that the concept of “collective or general interest“ constitutes a general clause that “includes value fulfi llment not always insusceptible to questioning“, it states that it must be interpreted according to the decision of the Federal Supreme Court (FSC) which it was reported to, as the Decree no. 7.724 / 2012 did. Winning the vote that leads the trial. Issuing her concurring vote, Judge Rosa Weber mentioned that she made the same decisions and stressed that “what is called the protection of privacy of the citizen is extremely mitigated […] when it comes to public agents”. Judge Marco Aurélio added that “the public servant cannot pretend to have the same privacy as an ordinary citizen […] the public servant, the public agent, the political agent, are in the showcase. Th ey are, at fi rst, an open book. Between the individual interest and the collective, the public, the collective interest prevails.” Th e reasons given by Judge Carmen Lúcia to follow the rapporteur were, in summary, that the Law on Access to Information “is a law that changes the Public Administration” and pointed out that the provision of the resource “is done in the sense to ensure the eff ectiveness and the change of a tone and of an Administration model”, making it more Republican. Th ese were the reasons that founded the judgment of the Federal Supreme Court that recognized the legitimacy of the public disclosure of public servants’ salaries.

3. Analysis of the Foundations Applied in the Decision of Re N. 652.777 It seems to me that an adequate analysis of the correction of the grounds adopted in the RE 652.777 aims to defi ne the legal nature of the legislative provisions in it, (article 37, caput, and subsection XXXIII of article 5 of the Constitution of the Federative Republic of Brazil). According to Robert Alexy, the norms of fundamental rights are subdivided into principles and rules: Th e decisive point in the distinction between rules and principles is that principles are norms that order something to be accomplished to the greatest extent possible within legal and factual possibilities. Principles are, therefore, commandments of optimization, which are characterized by being satisfi ed in diff erent degrees and by the fact that the measure of their satisfaction depends not only on factual possibilities but also on legal possibilities. Th e scope of legal possibilities is determined by colliding principles and rules. Rules are norms that are always either satisfi ed or not satisfi ed. If a rule is valid then one must do exactly what it requires; nothing more, nothing less. Rules, therefore, contain determinations within the scope of what is factually and legally possible. Th is means that the distinction between rules and principles is a qualitative distinction, not a distinction of degree. Every rule is either a rule or a principle.3

3 ALEXY, R.: Fundamental Rights Th eory. 2 ed.São Paulo: Malheiros Editores, 2012, pp. 90.

190 It is important to draw attention to the fact that the term “principle” in Robert Alexy’s theory does not have the connotation that is very commonly attributed to doctrine, which qualifi es it as a precept of greater abstraction or of greater importance than the law put, which is structural of the legal order or which serves as an interpretive guide. Th e theory of principles developed by Robert Alexy, as explained by Dantas and Dantas,4 is based on the classifi cation of the American philosopher Ronald Dworkin principles and rules as species of the norm gender, carried by a “logical-qualitative” criterion and axiologically neutral. Th erefore, the idea that principle is something higher than the rule is removed. Th e norm of article 5, item XXXIII, of the CRFB is a rule since it is not an optimization command, but a command that must be fulfi lled in totum, except when it presents the exception itself envisaged. Th at is, the Administration has the duty to provide (and the private individual the right to receive) information of its own or collective interest, except in cases where the confi dentiality of this information is indispensable for the security of the company or the State. From another angle, the collision between principles is resolved in a totally diff erent way, without invalidating any of them. According to Virgílio Afonso da Silva, “what happens when two principles collide – that is – foreseeing incompatible legal consequences for the same act, fact or legal position – is the fi xation of conditioned relations of precedence”. Th e solution is carried out by establishing in the concrete case which principle takes precedence over the other. No principle is invalidated and in a diff erent factual situation the order of prevalence may be exactly the opposite. According to Alexy, “the purpose of this balancing is to defi ne which of the interests – which are abstractly at the same level – has greater weight in the concrete case […]”.5 Th is balancing is also carried out by the rule of proportionality, which is subdivided into three subrules: a) adequacy; b) necessity; c) proportionality in the strict sense. Another possibility of collision is between rule and principle, a theme that, according to Virgílio Afonso da Silva (2016), is very complex, but little explored in Alexy’s work. Emphasizing that resolving the collision between rule and principle by “balancing” implies denying the defi nition of rule as a norm that guarantees rights or imposes duties, as it could occur cases in which, in spite of being valid and applicable, it would have to be removed without losing its validity, in contradiction to the defi nition of something that is applicable in an “all or nothing” system. On the other hand, resolving the confl ict on the plane of validity would admit that a principle, when contrasted with a rule, would have to be removed from the ordering, which is also inconsistent with the theoretical defi nition that the validity of a principle is not aff ected when its application is restricted by the application of another standard. According to the author of “Th eory of Fundamental Rights”, in the event of a collision between rule and principle, an assessment must be made, not between the two, since the rule is not considerable, but between the principle in collision and the principle on which the rule is based, something that, according to Virgílio Afonso da Silva (2016), is also problematic, since

4 DANTAS, R. L.; DANTAS, D. C. L.: Th eory of Principles and Weighting in Robert Alexy: Positions in Brazilian Doctrine. Public Law, Porto Alegre, v. 9, n. 51, Jun. 2013, pp. 108-130. 5 ALEXY, R.: Fundamental Rights Th eory. 2 ed., São Paulo: Malheiros Editores, 2012, p. 94.

191 it would allow the judge a wide margin of discretion to remove a rule, when considering it justifi able, in the face of a more important principle, which would result in high legal uncertainty. After abstracting such problem, it is indisputable that the constitutional precepts focused on the decision under criticism – article 37, caput and article 5, paragraph XXXIII – are applicable, to some extent, to the factual situation underlying the judgment, that is, the legitimacy of the nominal disclosure of the salaries of public servants, since they advocate the disclosure of information relating to the Public Administration, in order to make it as transparent as possible. However, it should be examined whether the constitutional precept that guarantees the inviolability of privacy (article 5, item X) was not also an incident to the sub examen case, which would lead to a normative confl ict that could not be forgotten by the Federal Supreme Court, at least for a resolution of the case with dogmatic rigor and fi delity to the unity of the constitutional legal order.

4. Nominal Disclosure of Public Servants’ Expenses: Violation of the Fundamental Right to Privacy? Th e understanding that prevailed in the judgment of RE n. 652,777 was in the sense that the nominal disclosure of public servant salaries on the internet does not aff ect their right to secrecy and privacy. It was pointed out that there is only one “apparent confl ict” – no actual fact – because the disclosure of the gross compensation of the employees constitutes information of collective or general interest, whereas the privacy, private life and personal security of the employees would not be expressly foreseen exceptions in the fi nal part of item XXXIII of article 5, which deals only with the security of the State and of society. In fact, the fi nal part of item XXXIII of article 5 anticipates a restriction on the fundamental right to obtain information of particular or collective interest from public entities, which does not contemplate the disclosure of salaries of employees, whose secrecy is a private interest of the employee. In the meantime, it cannot be considered that absolutely all exceptions to the fundamental right in such issue should be expressly anticipated in the same normative statement, especially since the legislature does not have the possibility to anticipate in which situations the right granted may come into confl ict with other rights of the same hierarchy. It can not be denied, therefore, that such a fundamental right may come to confl ict with other rights of the same stature enunciated in various provisions of the Federal Constitution itself. To think otherwise would be a denial of one of the main features of fundamental rights which is essential for practical understanding in cases of collision. In this order of reasoning, it is essential to verify if the elements of the fundamental right to privacy and private life reach the hypothesis in question. It is not the purpose of this article to carry out a detailed investigation of the emergence and historical evolution of the right to privacy and private life. Rather, it is important to limit how modern constitutional dogmatics understand it. Doneda 6 explains that the

6 DONEDA, D.: From privacy to protection of personal data. Rio de Janeiro: Renovar, 2006, pp. 67.

192 constitutional legislator’s choice, both terms, was inspired by Hubmann’s doctrine, which uses a concentric spheres scheme to illustrate the degrees of privacy manifestation, placing in the most restricted degree the intimacy and the secrecy, followed by the private sphere and the personal sphere, which would encompass public life. In this thinking, private life would point to the distinction between public life and private life, while intimacy would refer to more particular and personal events. He prefers the term “privacy”, which would unify both concepts and which has been adopted by the most recent doctrine, such as Gustavo Tepedino’s, José Afonso da Silva’s and René Ariel Dotti’s. George Marmelstein, on the other hand, adopts a more fl uid conceptualization, that emphasizes to cover not only the right to the isolation, but the right not to have divulged personal details: Th e basic idea guiding the improvement of these values is that neither the State nor society, in general, should intrude, unduly, into the personal lives of individuals. In this context, innumerable prerogatives of an individual- subjective nature are included, such as the right to seek peace of mind and tranquility, the right to be left alone (the right to be isolated), the right not to be snooped, of not having personal details disclosed, nor of having the image and the name exposed against the will of the person.7 In his precise approach on the subject, Marco Aurélio Rodrigues da Cunha and Cruz calls the attention to the diffi culty of establishing a terminological conceptualization, but agrees that the best defi nition is “the right to privacy”: It is indisputable to recognize that it is not easy to delimit and conceptualize such terms: private life and privacy. A conceptual diffi culty that, in any case, must be eff ectively protected and cannot propitiate a depreciation of such personality goods that. Th e dynamism that the human being has as a characteristic of his personality makes it elusive to establish lines or degrees of privacy of the individual, making it diffi cult to establish a settled concept. Individuals, given their individuality, can be more or less communicative, introverted or extroverted, establishing a manner to preserve their privacy. Th erefore, the subjective/dynamic conception of privacy has gained prominence, which understands that the legal protection given to such personality well-being does not guarantee a determined, static, fi xed privacy: it guarantees the right to possess it.8 Th e conception of Marco Aurélio Rodrigues da Cunha e Cruz, which confers subjective and dynamic profi le to privacy, seems to be more connected to the social and cultural dimension of this fundamental right, which in fact demands a more open and adapted interpretation to the reality of society information that has implemented radical refl exes in the privacy of citizens, as Antonio Enrique Pérez Luño says: It is important to remember that we live in a society where information technology has become the emblematic symbol of our culture, to the point

7 MARMELSTEIN, G.: Course in Rights Fundamental. 6 ed. rev. current. ampl. São Paulo: Atlas, 2016, pp. 135. 8 CUNHA E CRUZ, M. A. Da: Th e constitutional confi guration of the right to own image. Joaçaba: Editora Unoesc, 2015, pp. 58-59.

193 that to designate the framework of our coexistence we repeatedly refer to expressions such as the “information society” or “computerized society”. Th e electronic control of identifi cation documents, the computerized processing of tax data, the registration and management of commercial purchases made with credit cards, as well as travel bookings, represent some well-known examples of the ubiquitous surveillance of our habitual existence. Th erefore, our individual and social life run the risk of being subject to what Vittorio Frosini has rightly called “permanent universal judgment”. Since, in eff ect, every citizen registered in a data bank is exposed to continuous and inadvertent surveillance, which potentially aff ects even the most sensitive aspects of his private life; those that in previous times were out of control due to their variety and multiplicity.9 It is clear in this bias that the right to privacy in contemporary society transcends the notion of the “right to be let alone” which is always associated with the famous article “Right to privacy” written by Warren & Brandeis in 1890 and considered a watershed in the treatment of such matter for opening the modern debate on the individual right to privacy, separating it from the umbilical link with property and its limitation to the spatial dimension. In this context, it is undeniable that the right to privacy does not end up in its negative status, preventing interference from the State or third parties on what individuals consider convenient to maintain in their intimate sphere. It also has a positive status, Marco Aurélio da Cunha and Cruz 10 includes the possibility of deciding whether to disclose or not information concerning the individuals, which characterizes an informational self- determination.11 We believe that this conception of the right to privacy, which is contemporary with the information society, leads to the conclusion that the data relating to the remuneration of public servants are strictly linked to their intimate sphere and are therefore covered by the protection aff orded by the fundamental right. It is up to the person, and strictly to the individual, to decide whether, and, under what conditions, such data should be shared with third parties, since they represent a proper consideration for the personal services rendered to public entities and to society. In this perspective, contrary to the respected understanding of Judge Ayres Brito, in the vote that was a paradigm for the FSC’s understanding of the matter, there is no way to deny that this fundamental right exists. However, the investiture in public entities, intrinsically considered, does not suppress or restrict fundamental rights, in a generic and abstract way, to anyone without verifying any collision with other fundamental rights or constitutionally assured assets. To say the opposite is to deny public servants, without any dogmatic or normative-constitutional support, which is one of the essential functions of fundamental rights, protection against undue State or private intervention.

9 PEREZ LUÑO, A. E.: Rights humans, state in right and constitution. 10 ed. Madrid, 1986, pp. 360. 10 CUNHA E CRUZ, M. A. Da: Th e constitutional confi guration of the right to own image. Joaçaba: Editora Unoesc, 2015, pp. 68. 11 CUNHA E CRUZ, M. A. Da: Th e constitutional confi guration of the right to own image. Joaçaba: Editora Unoesc, 2015, pp. 68.

194 Without prejudice, this fundamental right of the public servants, to maintain secrecy about their remuneration data, is not an absolute right, its amplitude must be delimited in the case of normative confl icts, in the terms in which it advocates the theory of principles. Th is is the debate we will propose in the next topic. What does not seem correct is to consider the public servers non-existent or to understand that, from the moment they are appointed to a public position, they are excluded from the protection granted by the Federal Constitution to all.

5. The Regulatory Conflict between the Fundamental Right to Privacy and Administrative Disclosure / Fundamental Right to get Information from Public Organs In view of what has been noted so far, it must be pointed out that the nominal disclosure of public servants’ salaries aff ecting their fundamental right to privacy, requiring the Supreme Court to examine the normative confl ict with administrative publicity and the fundamental right to obtain information of particular or collective interest from public bodies, which guided the decision issued in RE n. 652,777. Th e fundamental right to privacy, from the point of view of the principles theory of Robert Alexy,12 has the nature of norm-principle and it needs to be fulfi lled as much as it is possible considering the factual and legal conditions. Administrative publicity, likewise, has this nature as an optimization command, while the fundamental right listed in item XXXIII of article 5 is a rule-norm, it has the character of a defi nitive commandment as far as it guarantees rights and imposes duties and must be applied in its entirety. Th ere are then two normative confl icts: the fi rst, between the fundamental right to privacy and administrative publicity, which is a collision between principles; the second, between the fundamental right to privacy and the fundamental right to obtain information of particular or collective interest from public agencies, which characterizes a confl ict between principle and rule. As already explained, the solution advocated by Alexy 13 to solve confl icts between principle and rule is to carry out the balancing between the principle in collision and the principle on which the rule is based on. In the case of article 5, subsection XXXIII, it does not seem diffi cult to conclude that this is a rule based on administrative disclosure itself. It is now necessary to return to the method proposed by the theory of principles to solve this collision, that is, the rule of proportionality, and its three subrules: adequacy, necessity and proportionality in the strict sense. For a correct application of this methodology, it is important to observe the existence of a subsidiarity relation, according to Luís Virgílio Afonso da Silva,14 that is, one should fi rst examine the adequacy, in order to follow if it is necessary and only at the end to proceed to the analysis of proportionality in the strict sense. Dealing with the

12 ALEXY, R.: Fundamental Rights Th eory. 2 ed. São Paulo: Malheiros Editores, 2012. 13 ALEXY, R.: Fundamental Rights Th eory. 2 ed. São Paulo: Malheiros Editores, 2012. 14 SILVA, V. A da: Proportional and reasonable. Journal of the Courts, São Paulo, v. 798, Apr. 2002, pp. 34.

195 fi rst subrule, he explains that in Brazil the idea that the medium is “adequate” when able to “reach” the intended end is widespread. However, he argues that for the German Constitutional Court, the most correct analysis is to “encourage”, so that a measure can only be considered inadequate when its use does not contribute to promoting the intended objective.15 In this approach, it should be admitted that the nominal disclosure of the salaries of public servants is a suitable means, if not to attain, at least to promote administrative publicity, which is the intended purpose. It, therefore, meets the requirement of adequacy, the fi rst step in the rational methodological procedure for applying the rule of proportionality. With regard to the subrule of “necessity,” Wilson Steinmetz 16 points out that “it is necessary to examine whether, among the means of restriction available and equally eff ective in achieving the desired purpose, the chosen one is the least restrictive – less harmful or burdensome – to the concerned fundamental right(s)”. In this regard, it should be emphasized that Judge Gilmar Mendes, when analyzing, in a monocratic judgment, the injunction for suspension of security in SS n. 3.902 / SP, had stated that “the Administration may always seek alternative or intermediate solutions” and then suggested that “a hypothetically feasible solution for the intended aim would be the replacement of the employee name by its functional registration”. It is noted that the FSC itself considered a solution that would undoubtedly aff ect a lesser degree the fundamental right to privacy of public servants, without stopping to promote administrative publicity. Unfortunately, this alternative was not mentioned during the judgment of the SS n. 3.902 / SP, nor the RE n. 652,777. Facing this possibility, it is clear that the nominal disclosure of salaries is too invasive to the fundamental right to privacy and it seems clearly unnecessary since there is a less restrictive, non-nominal disclosure, linked to the functional registration. Th ere must be no fear in stating that non-nominal disclosure would in no way frustrate the scope of providing transparency and social control over public administration expenditures since the amount spent would be individually detailed. Th erefore, any citizen could trigger the control organs, such as the Court of Auditors and the Public Ministry, for a proper review of the public expenses, whether internal or external, if apparently not justifi ed expenditure were found. Th is means that the measure legitimized by the FSC does not pass the test of necessity proposed by the theory of principles, which would make it unnecessary to examine its proportionality in the strict sense, given the subsidiarity relation already mentioned. However, even if nominal disclosure were considered to be a necessary measure for administrative advertising it would not pass the third step of the examination of proportionality, which is the application of proportionality in the strict sense or “commandment of weighing”.

15 SILVA, V. A da: Proportional and reasonable. Journal of the Courts, São Paulo, v. 798, Apr. 2002, pp. 36. 16 STEINMETZ, W.: Principle of proportionality and acts of private autonomy restricting fundamental rights. In : Virgílio Afonso da Silva (Org.), Constitutional Interpretation. 1. ed. 3. tir., São Paulo: Malheiros Editores, 2010, pp. 40.

196 Robert Alexy’s “rule of proportionality” 17 states that “the greater the degree of non- satisfaction or violation of one principle, the greater must be the importance of the other.” Wilson Steinmetz 18 points out that its application goes through three stages: measuring the degree of non-satisfaction of a principle; assessment of the importance of the opposite principle realization; demonstration that the importance of the opposite principle justifi es the non-realization of the restricted principle. Th e employee’s fundamental right to privacy is also very important and must be made compatible with other Republican values. Th ere is no dogmatic justifi cation for not honoring it. It should also be remembered that the restriction of fundamental rights through proportionality is not something exclusively applied by the Judiciary Power. Th e Legislative Power, in its typical function, also uses it when it regulates the Constitution, defi ning with rules the extension of the intervention in certain fundamental rights. By editing Law n. 12.527 / 2001, known as the “Access to Information Law”, with the declared purpose of regulating item XXXIII of article 5 of the CRFB, the legislator imposed on public agencies the obligation to “ensure the protection of personal information”, in addition to establish that “Th e processing of personal information must be done in a transparent manner and with respect to privacy, private life, honor and image of people, as well as individual freedoms and guarantees” (article 31). Furthermore, none of the rules established in such diploma mentions the need for nominal disclosure of the remuneration of the employees, as Judge Teori Zavascki himself acknowledged in his vote in RE 652.777. Neither in the Decree n. 7,724 / 2012, which regulated the law in the scope of the Federal Executive, this prediction is mentioned, but rather the “individualized” disclosure, which cannot be confused with the “nominal” one (article 7, § 3, VI). Th e Federal Constitution itself, in its article 39, paragraph 6, established the need for annual disclosure of the subsidies and remuneration of public posts and jobs, without providing a nominal indication of benefi ciaries. Th e protection of the privacy of the public servant against such exposure is necessary, it is not an attempt to conceal undue advantages or frustrate the social control of the Administration. It cannot be forgotten that the measure legitimized by the FSC wants the exposure not only of political agents or high-ranking offi cials, supported by strong institutional security and often do not even depend on the subsidy or salaries. Because, as Mario Vargas Llosa warns in “Th e Civilization of Entertainment”: […] there is no more eff ective way to entertain and amuse than to feed the low passions of the ordinary of mortals. Among these, the most intimate is the revelation of the intimacy of the neighbor, especially if it is a public, known and prestigious fi gure. Th is is a sport that journalism today practices unscrupulously, supported by the right to freedom of information. Although there are laws about it and some-rare-times there are lawsuits and court sentences that penalize excesses, it is an increasingly widespread custom that has actually made privacy disappear in our time, all secrets of the life of

17 ALEXY, R.: Fundamental Rights Th eory. 2 ed.São Paulo: Malheiros Editores, 2012, pp. 169. 18 STEINMETZ, W.: Principle of proportionality and acts of private autonomy restricting fundamental rights. In : Virgílio Afonso da Silva (Org.), Constitutional Interpretation. 1. ed. 3. tir., São Paulo: Malheiros Editores, 2010, pp. 42.

197 whoever occupies the public scene are free to be investigated, revealed and exploited in order to quench the voracious hunger for entertainment and fun that newspapers, magazines and newsreels are obliged to use if they wish to survive and not be discarded of the market.19 Based on these grounds, it seems to us that the decision handed down by the Federal Supreme Court in RE 652.777 is misleading, with the possibility that the National Congress, through legislative intervention, reestablishes the protection of the public’s fundamental right to privacy, which is also established in article 12 of the Universal Declaration of Human Rights of UNESCO, which states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

6. Conclusion Based on this critical analysis of the grounds that constituted the decision pronounced by the Federal Supreme Court in the judgment of RE n. 652.777 / SP, it is concluded that the incidence of the fundamental right to privacy, which in its modern conception, especially in relation to informative self-determination, inexorably protects the citizen against unauthorized disclosure of personal data, logically including the data related to the remuneration for the exercise of public service. If the incidence of the fundamental right to privacy of the public servant were recognized, a normative confl ict would be established between it and the constitutional precepts that guided the decision, to demand a solution that, for constitutional dogmatics, should be the one that honors both values in contraposition the most. Th rough the application of Robert Alexy’s theory of principles and its rule of proportionality, it would be interpreted that the nominal disclosure of civil servants’ salaries online, besides being an appropriate measure to promote administrative publicity, would be unnecessary, knowing that there are alternatives with the same value that would aff ect the fundamental right to privacy of the public servant in lower levels. In addition, the disproportionality in the strict sense of this measure would be verifi ed, because the motives that promote it would not justify the restriction in the colliding fundamental right.

19 LLOSA, M. V.: Th e civilization of Entertainment: an radiography of our time and gives our culture. 1 ed. Rio de Janeiro: Objective, 2013, pp. 49.

198 Part V.

BUSINESS AND HUMAN DIGNITY

17 Selling and Owning Human Body Parts in the Light of Human Rights: the Ideal and the Current Practice in the Czech Republic*

Petr Šustek 1 Martin Šolc 2

Introduction It is not the trade in human body parts which usually comes to mind when speaking about business. However, the size of the black market for human body parts is distressing.3 Furthermore, the universal consensus on the extra-commerciality of the human body is often violated in more subtle ways that are not always clearly illegal. Some of these activities also take place in the Czech Republic. In this paper, we will introduce the regulation of handling human body parts in the Convention on Biomedicine and in Czech civil law, and then examine the examples of the current practice in the Czech Republic. In the last two chapters, we will briefl y analyse possible doctrinal and practical arguments in favour of and against the concept of self-ownership and the possible legalization of the market for human body parts. We politely ask the reader to consider this paper a very basic introduction to the topic, which could, however, highlight the most important aspects of the problem and provide an interested reader with inspiration for a deeper study.

1. Convention on Biomedicine Th e Council of Europe 4 Convention on Human Rights and Biomedicine (Convention) is the most important international document concerning bio law in Europe with

* Th is paper was written with the support of the Charles University UNCE project “Research Centre for Human Rights”. 1 JUDr., Ph.D., senior lecturer at the Department of Civil Law and coordinator of the Centre for Medical Law at the Faculty of Law, Charles University. 2 JUDr., Mgr., a Ph.D. student at the Department of Civil Law and the Centre for Medical Law at the Faculty of Law, Charles University. 3 It is roughly estimated that it generates the profi t of 600 million to 1.2 billion USD per year on the global level. European Parliament. Traffi cking in human organs, p. 24. 2015. http://www.europarl. europa.eu/RegData/etudes/STUD/2015/549055/EXPO_STU%282015%29549055_EN.pdf, accessed 12 December 2017. 4 Of course, it is not only the Council of Europe system of human rights protection which prohibits the commercialization of the human body. See for example the non-binding World Health Organization documents the Guiding Principles of Human Cell, Tissue and Organ Transplantation and the Declaration of Istanbul on Organ Traffi cking and Transplant Tourism.

201 a signifi cant infl uence on other continents.5 In the Czech Republic, the Convention is considered part of the legal order with application priority over national laws.6 Article 21 of the Convention simply states: “Th e human body and its parts shall not, as such, give rise to fi nancial gain.” Th e importance of the prohibition of fi nancial gain is only highlighted by the fact that Article 21 is one of eight provisions of the Convention that cannot be restricted under conditions set by Article 26. Th e respect for the human body is further expressed by the provision of Article 22,7 regulating the disposal of removed parts of the human body, which is, however, of a rather secondary importance for the purposes of this paper. According to the Explanatory Report to the Convention, Article 21 applies the principle of human dignity, which is the Convention’s core principle. Th e Explanatory Report explicitly states that blood is considered a human body part; it is generally agreed that also oocytes fall within the scope of the term (while the regime of sperm is more controversial). On the other hand, hair and nails, which are discarded tissues, can be freely bought and sold, since the sale of them is not considered contradictory to human dignity.8 Organs and tissue proper should not be bought, sold, or give rise to a fi nancial gain for the person from whom they have been removed or for a third party (e.g. hospital). However, technical acts such as sampling, testing, pasteurisation, fractionation, purifi cation, storage, culture, or transport may give rise to a reasonable remuneration, even though they are performed on the basis of human tissues. It is also crucial that while the remuneration for human body parts is prohibited, a person from whom an organ or tissue has been taken is not prohibited from receiving equitable compensation for expenses incurred or loss of income. Th e question of patents based on human tissue use is excluded from the scope of Article 21.9

2. Czech civil law Th e new Czech Civil Code of 2012 (Act No. 89/2012 Coll., Civil Code) (CC), in force since 1 January 2014, defi nes a thing in a legal sense in Section 489 as “everything that is diff erent from a person and serves the needs of people”.10 Human body parts are explicitly excluded from the category of things by Section 493: “Human body and its parts, even if separated from the body, are not a thing.” However, Section 112 sets an exemption for

5 See ANDORNO, R.: Th e Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law, Journal of International Biotechnology Law, New York: De Gruyter Recht, 2005, Vol. 2, No. 4, pp. 133-134. 6 Based on Article 10 of the Constitution of the Czech Republic. 7 Article 22: When in the course of an intervention any part of a human body is removed, it may be stored and used for a purpose other than that for which it was removed, only if this is done in conformity with appropriate information and consent procedures. 8 Explanatory Report to the Convention, Sections 131-133. 9 Ibid., Sections 132 and 134. 10 Th e legislator’s general inspiration by the Austrian Civil Code (ABGB) is evident in this provision, since Section 285 of ABGB contains basically the same defi nition (“[e]verything that is distinguished from the person, and serves the use of men, is called a thing in the sense of the law”).

202 the parts of the human body which can be painlessly removed without anaesthesia and which are naturally restored (e.g. hair); such body parts may be relinquished to another, even for remuneration, and are considered to be a movable thing.11 Th e principle of extra-commerciality of the human body is further embodied and regulated in several special acts which prohibit fi nancial gain 12 and include a specifi c provision on the admissibility of compensation of donors’ reasonably, economically, and demonstrably incurred costs related to donation.13

3. Current practice Th ere may be several identifi able practices taking part in the Czech Republic that might be considered questionable from the perspective of the above-mentioned legal regulation. Even though more of them could be analysed (e.g. the gamete donation or the rather uncommon cases of surrogacy), we will now briefl y introduce only two interesting examples of relevant practices. 3.1 Blood plasma donation Th e practice of blood plasma donation is relatively widespread in the Czech Republic as well as in many other developed countries. Plasma-derived medicinal products form a wide variety of medicines that are used, for example, in treatment of immunodefi ciency disorders 14 or haemophilia.15 Blood plasma, therefore, represents a valuable resource for pharmaceutical companies from which the private donation centres may benefi t. In order to motivate the donors, these centres are using fi nancial incentives for the donors, disguised as compensations so the breach of law is avoided. Section 32 (2) of the Act No. 373/2011 Coll., on specifi c health services, states that reasonably, economically, and demonstrably incurred costs related to the donation of blood for the purpose of manufacturing of blood derivatives or the use in humans are compensable up to 5% of the minimum wage (the 5% of the minimum wage in 2018 makes 610 CZK which is approximately 23 EUR, or 27 USD). Th e donors are allowed to donate plasma every 14 days so they can be compensated up to 1.220 CZK each month.

11 See (in the Czech language) ŠUSTEK, P.: Právní status lidského těla a jeho částí. In: Šustek, P., Holčapek, T. (eds.), Zdravotnické právo, Praha: Wolters Kluwer, 2016, p. 393. 12 See Section 28 (1) of the Act No. 285/2002 Coll., Transplantation act. 13 See Section 7 (1) b) of the Act No. 296/2008 Coll., on human tissues and cells, Section 11 of the Act No. 373/2011 Coll., on specifi c health services (regarding gamete donation), or Section 28b of the Transplantation Act (regarding organ donation). 14 See for example SHELLEY, S.: Immunoglobulin (IG) drives the blood-plasma therapeutics market, Pharmaceutical Commerce, 4 April 2016. http://pharmaceuticalcommerce.com/brand-marketing-communi cations/immunoglobulin-ig-drives-the-blood-plasma-therapeutics-market/, accessed 9 December 2017. 15 See for example LIRAS, A., GARCÍA-TRENCHARD, R.: Treatment for haemophilia: recombinant versus plasma-derived coagulation factors – controversy and debate forever? An ethical medical challenge? Expert Review of Haematology, 2013, Vol. 6, No. 5, pp. 489-492. http://www.tandfonline.com/doi/full/1 0.1586/17474086.2013.834798/, accessed 9 December 2017.

203 It is not surprising that donation centres off er nothing less than this maximum amount of compensation while they do not require any precise statement (and much less any documentation) regarding real expenses incurred. One of the biggest donation centres furthermore off ers a creative scheme of compensations which forms the following “price-list”: 1st donation 200 CZK (as a deposit) 2nd donation 800 CZK (1000 CZK if donated 14 days after the 1st donation) 3rd donation 500 CZK (600 CZK if donated 14 days after the 3rd donation) Th e pattern then continues. If the 14 days interval between donations is kept, the donor is compensated with 600 CZK for each donation. Otherwise, there is a compensation of 500 CZK. Th ere is no reason to assume that the real costs incurred would change by this pattern. It is clear that the so-called compensations for plasma donations are not compensatory in their nature, but rather represent de facto remuneration. 3.2 Human tissue handling by the National Cell and Tissue Centre More peculiar, but perhaps also more interesting, is the practice of human tissue handling by the National Cell and Tissue Centre.16 Th e Centre is a joint-stock company, the shareholders of which are a private company (PrimeCell Th erapeutics 17 ) and the Czech Republic. Its main activity consists of manufacturing advanced therapy medicinal products. However, the Centre also gathers human tissues (including bones and their parts, skin grafts, or corneas) from deceased donors from hospitals, grows the specimens, and then off ers them to hospitals for the use in particular patients. Th e particular tissue specimens are off ered in the offi cial Tissue transplants catalogue.18 While this system allows hospitals to have access to valuable tissue transplants, it gives rise to two main legal and ethical problems. Th e fi rst problem consists in the pricing of human tissues. While the publicly available Tissue transplants catalogue does not include prices, there exists a price list with prices for which healthcare providers can buy each transplant. On this point, we should recall the Explanatory Report to the Convention which allows for a reasonable remuneration for technical acts performed on the basis of human tissues, such as sampling, testing, pasteurisation, fractionation, purifi cation, storage, culture, or transport.19 Th e key question, therefore, is whether the processing of transplants which takes place at the Centre is suffi cient to represent such a technical act. Th e second problem lies in the lack of informed consent of the deceased donors or their families. Th ere is an opt-out transplant donation system in the Czech Republic (Section 16 of the Act No. 285/2002 Coll., Transplantation act) (Transplantation Act)

16 Website available at: http://www.natic.cz/en/, accessed 9 December 2017. 17 Website available at: http://www.primecell.cz/, accessed 9 December 2017. 18 Available at: http://www.natic.cz/docs_fi les/PRI-013-2017-katalog-tkanovych-transplantatu_vnitrek_03_21. pdf, accessed 9 December 2017. 19 Explanatory Report to the Convention, Section 132.

204 which means that the consent of the deceased donor is presumed unless they have subscribed to a special register.20 On a purely technical level, the consent is therefore not required. Th e key question arising here is whether, from a political and ethical perspective, it is appropriate that the consent to the donation of a tissue which is to be processed and sold falls within the scope of the regulation of the Transplantation Act. Otherwise, the collection of tissue would not be regulated by the Transplantation Act or Section 7 (1) c) 6 of the Act No. 296/2008 Coll., on human tissues and cells, but would rather fall within the scope of the general provision on body parts handling in Section 81 of the Act No. 372/2011 Coll. on health services. As a result, the consent would be necessary.

4. Doctrinal possibility of self-ownership Th e consensus on the impermissibility of commercialization of the human body can be reasonably considered universal.21 It is generally recognized that the only permissible model of organ donation is a voluntary altruistic donation. Apart from the unanimous voice of international law, also the national legal systems of almost all world’s countries are in accordance with the principle: the trading of human kidneys is legal only in Iran.22, 23 However, this consensus is sometimes contested on the grounds of personal autonomy and empowerment of the poorest people.24 In a legal sense, though, the debate goes down to the question of a private law approach to the human body. More specifi cally, there arises the question whether the human body ought to be a category sui generis or should be rather understood as a subject of person’s self-ownership.25, 26

20 Th e National Register of Persons Not Consenting To the Post-Mortem Tissue and Organ Donation. Website (in the Czech language) available at: http://www.nrod.cz//, accessed 9 December 2017. Th e numbers of registered persons are very low, partly for a generally positive approach of the Czech society towards transplantation and partly because of a very poor awareness of the organ donation regulation among the public. 21 See for example MASON, J. K., LAURIE, G. T., AZIZ, M.: Mason and McCall Smith’s Law and Medical Ethics. 7th edition. New York: Oxford University Press, 2006, pp. 489-490. 22 See BENGALI, S., MOSTAGHIM, R.: ‘Kidney for sale’: Iran has a legal market for the organs, but the system doesn’t always work, Los Angeles Times, 15 October 2017. http://www.latimes.com/world/ middleeast/la-fg-iran-kidney-20171015-story.html, accessed 9 December 2017. 23 However, several countries (for example Australia, Israel, Singapore or Saudi Arabia) off er a compensation (in some cases connected with other benefi ts) for the living organ donors provided by the government. See SICKAND, M., CUERDEN, M. S., KLARENBACH, S. W., OJO, A. O., PARIKH, C. R., BOUDVILLE, N., GARG, A. X.: Reimbursing Live Organ Donors for Incurred Non-Medical Expenses: A Global Perspective on Policies and Programs, American Journal of Transplantation, 2009, Vol. 9, No. 12, pp. 2825-2836. Also available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1600-6143.2009.02829.x/full, accessed 11 December 2017. 24 See for example a harsh criticism of extra-commerciality of the human body in RADCLIFFE RICHARDS, J.: Th e Ethics of Transplants. Why Careless Th ought Costs Lives. Oxford, New York: Oxford University Press, 2012. 25 Th e concept of self-ownership is mainly connected with the libertarian school of thought. See for example its defence by one of the crucial libertarian philosophers, Robert Nozick: NOZICK, R.: Anarchy, State, and Utopia. Oxford: Blackwell Publishers, 1999. 26 From the perspective of self-ownership, a person could be considered the owner of their own body with limited disposition of certain body parts. Th is limitation would be probably justifi ed with reference to

205 It is sometimes argued that the commodifi cation of the human body is intrinsically wrong:27 this is, however, an argument of moral philosophy and not of the law, for which reason we will not further examine it in this paper. Perhaps the most apparent advantage of extra-commerciality of the body is the fact that it corresponds with the internationally recognized principle of human dignity and the principle of inviolability of the human person. Keeping the human body out of commerce represents a safe space for avoiding a possible violation of human rights. Moreover, the commercialization of the human body would inevitably presume a further distinction between human body and the human person. However, there is a deep natural connection between a person and their body: nobody can possibly sell one’s own body without selling oneself.28 A person must be understood in the unity of their biological, psychological, and even social aspects. For this reason, the protection of personal rights seems to be a more suitable legal instrument for the protection of the human body.29 From this point of view, the concept of self-ownership seems to be redundant and meaningless.30 Th e understanding of the human body as a category sui generis also corresponds with the anthropocentric trend in modern legal systems of democratic societies which, to a certain extent, prefer the personal rights of the individual over the public interest.31 A shortage of human body parts needed for medical use, therefore, cannot justify any violations of personal integrity, should they consist in physical violence or in subtle coercion including fi nancial pressure. On the other hand, the rejection of self-ownership can be understood as contradicting the principle of autonomy, which undoubtedly forms one of the cornerstones of contemporary medical law and civil law in general. Th e complete ban on a legal disposition of one’s own body parts can therefore be considered a strongly paternalistic approach.32, 33

the public interest. See (in the Czech language) POLICAR, R.: Lidské tělo. In: Těšinová, J., Žďárek, R., Policar, R., Medicínské právo, Praha: C. H. Beck, 2011, p. 184. 27 See JACKSON, E.: Medical Law. Text, Cases, and Materials. New York: Oxford University Press, 2006, p. 744. Th e arguments against commodifi cation often include the fear of objectifi cation of the human body, i.e. treating the body as a mere thing. See for example a critical analysis of this argument in GREASLEY, K.: Property Rights in the Human Body: Commodifi cation and Objectifi cation. In: Goold, I., Greasley, K., Herring, J., Skene, L. (eds.), Persons, Parts, and Property. How Should We Regulate Human Tissue in the 21st Century? Oxford, Portland: Hart Publishing, 2016, pp. 67-87. 28 For a brief analysis of the person-body relation, see (in the Czech language) ŠUSTEK, P.: Právní status lidského těla a jeho částí. In: Šustek, P., Holčapek, T. (eds.), Zdravotnické právo, Praha: Wolters Kluwer, 2016, p. 389-390. 29 Based on this assumption, it seems that human body parts should be considered material objects sui generis which are not subject to commerce or ownership. See (in the Czech language) POLICAR, R.: Lidské tělo. In: Těšinová, J., Žďárek, R., Policar, R., Medicínské právo, Praha: C. H. Beck, 2011, p. 186. 30 See (in the Czech language) ŠUSTEK, P.: Právní status lidského těla a jeho částí. In: Šustek, P., Holčapek, T. (eds.), Zdravotnické právo, Praha: Wolters Kluwer, 2016, p. 390. 31 Th is trend is also refl ected in the CC. See ibid., p. 394. 32 See for example SAVULESCU, J.: Is the sale of body parts wrong? Journal of Medical Ethics, 2003, Vol. 29, No. 3, pp. 138-139. Also available at: http://jme.bmj.com/content/29/3/138, accessed 12 December 2017. 33 For a more detailed introduction to the ongoing debate, see for example JACKSON, E.: Medical Law. Text, Cases, and Materials. New York: Oxford University Press, 2006, pp. 744-748, or (with a certain

206 5. Practical suitability of self-ownership It is usually not contested that a legal market for human organs and tissues would probably signifi cantly help in solving the problem of organ shortage.34 Not only would it motivate more people to consider providing their organs for transplantation,35 but it would also encourage many potential donors who would like to give their organs but may be discouraged by the related costs (missed work hours, transportation and accommodation costs etc.).36 However, the self-ownership might, in fact, help not only recipients but also donors. According to promoters of self-ownership, the human tissue market would widen the economic possibilities of poor people and therefore both support their autonomy and reduce poverty.37 Furthermore, it is likely that the strategy to pay donors from the healthcare system funds would, at least in case of kidney donations, in eff ect lower the healthcare costs,38 resulting in a better healthcare for everyone. Moreover, it can be argued that the regulated market for human organs would prevent many atrocities connected with the black market,39 even though the experience from Iran shows that legality of organ sales does not eliminate illegal trade.40 On the other hand, supporters of the status quo argue that a tissue market would actually limit the poor people’s choices since many organ sellers report they felt coerced or pressured to sell their body parts.41 Th erefore, their consent could not be considered valid, and the organ sale would be – to say the least – highly problematic not only from

emphasis on English law) HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, pp. 457-470. For a further understanding, see GOOLD, I., GREASLEY, K., HERRING, J., SKENE, L. (eds.): Persons, Parts, and Property. How Should We Regulate Human Tissue in the 21st Century? Oxford, Portland: Hart Publishing, 2016. 34 See for example BRAZIER, M., CAVE, E.: Medicine, Patients and the Law. 6th edition. Manchester: Manchester University Press, 2016, pp. 539-540. 35 See for example HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, p. 460. 36 For example, American bioethicist Arthur Caplan opposes the idea of an organ market but supports the organ donor compensation since the costs of donation may be very signifi cant. CAPLAN, A. L.: Should We Pay Organ Donor Heroes? Medscape, 28 August 2017. https://www.medscape.com/viewarticle/884101, accessed 11 December 2017. 37 See for example RADCLIFFE RICHARDS, J.: Th e Ethics of Transplants. Why Careless Th ought Costs Lives. Oxford, New York: Oxford University Press, 2012, p. 134 (but also throughout the whole book), HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, pp. 459-460. 38 BARNIEH, L., GILL, J. S., KLARENBACH, S., MANNS, B. J.: Th e Cost-Eff ectiveness of Using Payment to Increase Living Donor Kidneys for Transplantation, Clinical Journal of the American Society of Nephrology, 2013, Vol. 8, No. 12, pp. 2165-2173. Also available at: http://cjasn.asnjournals.org/content/ early/2013/10/23/CJN.03350313.full, accessed 12 December 2017. 39 See HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, p. 460. We will now leave aside the examples of involuntary organ harvesting executed by the state, such as the current practice in China. 40 See BENGALI, S., MOSTAGHIM, R.: ‘Kidney for sale’: Iran has a legal market for the organs, but the system doesn’t always work, Los Angeles Times, 15 October 2017. http://www.latimes.com/world/ middleeast/la-fg-iran-kidney-20171015-story.html, accessed 9 December 2017. 41 See for example KOPLIN, J.: Choice, pressure and markets in kidneys, Journal of Medical Ethics, 4 November 2017. http://jme.bmj.com/content/early/2017/11/04/medethics-2017-104192, accessed 12 December 2017.

207 the moral but also from the legal perspective.42 Furthermore, in a legalised market for organs, there is a threat of practices that exploit the most vulnerable, e.g. an organ mortgage.43 It also has to be noted that the human tissue market could arguably undermine some of the society’s basic values 44 (such as the respect for the life of all persons).45

Conclusion Th e universal consensus on the impermissibility of the commercialization of the human body is refl ected in both the international law and Czech national law, which prohibit the sale of human body parts. However, there are practices that create a legal de facto market for human tissue with regulated prices in the Czech Republic. Some of these practices circumvent the purpose of the law and some are on the very edge of illegality. Very controversial is the handling of human body parts by the National Cell and Tissue Centre. Factual human body parts sales also occur in the so-called donation of blood plasma and gametes. From the theoretical perspective, the possibility of the sale of human organs is connected with the concept of self-ownership. While contemporary legal systems consider the human body and most of its parts res extra commercium (so they cannot possibly be owned), the proponents of self-ownership consider the current legal approach paternalistic and restricting both the numbers of organs available for transplantation and the poor persons’ chances to improve their fi nancial situation. On the other hand, the sale of human organs would be highly problematic from the perspective of contemporary understanding of human rights. It would furthermore bring about the threat of exploitation of the poor whose consent would arguably not be free. Th e practice of organ sales might also alter some of the society’s important values regarding individual integrity and the value of life. De lege ferenda approach to self-ownership of the human body, therefore, depends on the balance of personal autonomy (and the recognition of its possible limitations represented by a poor fi nancial situation) on one hand and the protection of human dignity and other traditional social values related to the human body on the other.

42 See HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, pp. 457-458. 43 KOPLIN, J.: Choice, pressure and markets in kidneys, Journal of Medical Ethics, 4 November 2017. http://jme.bmj.com/content/early/2017/11/04/medethics-2017-104192, accessed 12 December 2017. See also HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, pp. 458-459. 44 See for example HERRING, J.: Medical Law and Ethics. 5th edition. New York: Oxford University Press, 2014, p. 459. 45 For another introduction to the ongoing debate, see for example BRAZIER, M., CAVE, E.: Medicine, Patients and the Law. 6th edition. Manchester: Manchester University Press, 2016, pp. 538-540.

208 18 Th e Obstetric Violence to Protect Women’s Rights and the Healthcare Business Issues1

Janaína Reckziegel 2 Cassiane Wendramin 3

1. Introduction Th e inequality between man and woman is so impregnated in the society that reports of violence against women become part of people’s daily lives. However, in the state of Santa Catarina a recently published Law n. 17.097/2017, brought up a kind of gender violence that little was said until then: obstetric violence. Th e so-called “fragile sex”, but ironically responsible for the generation of life, is faced with a kind of violence practiced in one of the most sensitive moments of women: gestation and childbirth. According to a study carried out by the Perseu Abramo Foundation in partnership with the Social Service of Commerce (SESC), one in four women suff ers some kind of violence during childbirth.4 Considering that within human rights falls the scope of women’s rights and their protection as a necessary gender equality, this article aims to analyze the Law n. 17.097/2017 of Santa Catarina/Brazil, which provides for the implementation of information and protection measures for pregnant and parturient women against obstetric violence, in order to detect the eff ectiveness of this norm as a regional mechanism for the protection of women’s rights during gestation and delivery. For this purpose, using the deductive-inductive method, as well as theoretical concepts on human rights, human dignity and specifi c rights of pregnant and parturient women, it was proposed, in a fi rst moment, to do the contextualization of the protection of women supported on human rights, human dignity and specifi c norms that deal with the subject, and then, in a second topic, address the characteristics of the aforementioned

1 Th is work is a result of research in Bioethics of the Research Group on Civil and Social Fundamental Rights, of the Masters Program in Law of the University of the West of Santa Catarina – UNOESC. 2 PhD in Fundamental Rights and New Rights from University Estácio de Sá – RJ. Master in Public Law. University Professor and Researcher of the Post-Graduate Program in Law at the University of Western Santa Catarina – UNOESC. E-mail: [email protected]. System Lattes: http://lattes.cnpq. br/7597547217990217. 3 Master’s degree in Law at the University of Western Santa Catarina (UNOESC); Area of Concentration: Effi cacious Dimensions and Materials of Fundamental Rights; Research Line: Civil Rights: Th e Expansion of Subjective Rights. Lawyer. University professor. E-mail: [email protected]. Lattes System: http:// lattes.cnpq.br/0847443082270733. 4 VENTURI, G. et al. Mulheres brasileiras e gênero nos espaços público e privado. Ago. 2010. 301 p. Available in: . Acess in July 11, 2017, p. 174.

209 Santa Catarina law, which, following the example of Argentina and Venezuela,5 acting in an insightful way, sought to carry out measures of information and protection to pregnant women and parturient women within the limits of the state. Finally, it is sought, from the perspective of the constant process of (re)construction of human rights, to verify whether the law of Santa Catarina, as a regional system for the protection of women’s human’s rights, especially pregnant and parturient, can be considered a Mechanism of eff ectiveness of these rights protected through this affi rmative action and which consequences generates to the healthcare business.

2. Contextualization of Women’s Rights – Human Rights; Dignity of the Human Person and Specific Rights of Women Th e conceptualization of human rights involves much more than just defi nitions per se, but requires a substantial analysis of formulations that eff ectively construct and defi ne the ideals and protections of these rights. Th is intrinsic problem occurs, at fi rst, for three reasons, because these categories possess values that alternate in time and space; in addition, they translate rights that are conferred on human beings by virtue of their characteristic, since they stem from the simple fact of being human and therefore are universal; fi nally, by the fact that human rights are indispensable for individuals to enjoy a dignifi ed life.6 Th e fact is that because rights are born in certain circumstances, notably originated in struggles and protection of new freedoms, they emerge progressively and possess a high degree of mutation according to historical conditions, interests, and transformations of society,7 and, in a concise manner, translate the ethical values whose objective is the protection and achievement of human dignity. Th us, human rights “have in the dignity of the human person the core element of their formation”,8 which, although there is no consensus in its defi nition,9 can be conceptualized as a complex of fundamental rights and duties that assure the person protection against degrading and inhuman acts, as well as minimum conditions of subsistence, and also active and co-responsible participation in his own life and in communion with other individuals.10

5 DINIZ, S.G. et al. Violência obstétrica como questão para a saúde pública no Brasil: origens, defi nições, tipologia, impactos sobre a saúde materna, e propostas para sua prevenção. J. Hum. Growth Dev., São Paulo, v. 25, n. 3, 2015, p. 377-384. Available in: . Acess in July 21, 2017. 6 BARRETO, Vicente; BAEZ, Narciso Leandro Xavier. Direitos humanos em evolução: direitos humanos e globalização. Joaçaba: Ed. Unoesc, 2007, p. 14. 7 BOBBIO, Noberto. A era dos direitos. Rio de Janeiro: Elsevier, 2004, p. 5. 8 BAEZ, Narciso Leandro Xavier. Dimensões materiais e efi caciais dos direitos fundamentais: direitos do homem, direitos humanos e a morfologia dos direitos fundamentais. São Paulo: Conceito Editorial, 2010, p. 21. 9 BAEZ, ibid., p. 23. 10 SARLET, Ingo Wolfgang. Dignidade (da pessoa) humana e direitos fundamentais na Constituição Federal de 1988. Porto Alegre: Livraria do Advogado Editora, 2015, p. 70-71.

210 Th erefore, the dignity of the human person, as an intrinsic, unwaivable and inalienable quality, constitutes “an element that qualifi es the human being as such and can not be detached from it … it can (and should) be recognized, respected, promoted and protected, and can not be created, granted or withdrawn (although it may be violated) […]”11, which translates into a real command for human rights. In this disposition of ideas, the dignity as core of the human rights is substantiated in distinct documents – Treaties, Declarations, Constitutions, etc. – representing the essence of the Constitutional State, founded in two pillars: popular sovereignty and human dignity.12 In the Brazilian Federal Constitution of 1988, it is inferred that the original constituent raised the dignity of the human person to an “essential value, which confers unity and meaning to the constitutional text, so as to give it a particular and unmistakable feature […] serving as a guidance for the interpretation of the other norms”.13 Moreover, as provided in article 1, item III, of the Federal Constitution, the dignity of the human person expresses the foundation of the Federative Republic of Brazil, based on the idea of the predominance of individual freedom to the detriment of the transpersonalist conceptions of State and Nation.14 Not enough, the interrelation between international human rights norms helps to ensure eff ectiveness and to reiterate the normative force that exists in internal commands that guarantee respect for the dignity of the human person and grant it the widest interpretation, so as to infl ict infallibility on him. Th e 1988 Constitution thus marked a step forward in the consolidation of fundamental rights and guarantees, and among them, it ensured the expansion of women’s rights, especially those stemming from the important participation of women in the activist movements of the 1970s in favor of equality, because “the organized action of the women’s movement … has led to the conquest of innumerable new rights and obligations related to the State, such as the recognition of equality in the family, the repudiation of domestic violence, and reproductive rights”.15 However, despite the struggles and achievements, the existence of discrepancies in the treatment of genders is notorious, even today there is an enormous occurrence of violence and abuse against women, without mentioning treatment inequalities and subordination relationships.

11 SARLET, Ingo Wolfgang. Dimensões da dignidade: ensaios de Filosofi a do Direito e Direito Constitucional. Porto Alegre: Livraria do Advogado, 2013, p. 20. 12 HÄBERLE, Peter. A dignidade humana como fundamento da comunidade estatal. In: SARLET, Ingo Wolfgang (org.). Dimensões da dignidade: ensaios de fi losofi a do direito e direito constitucional. 2. ed. Porto Alegre: Livraria do Advogado, 2009, p. 81-85. 13 ROCHA, Fernando Luiz Ximenes. Direitos fundamentais na Constituição de 1988. Th emis – Revista da ESMESC, Fortaleza, v. 1, 1998, p. 113. 14 MORAES, Alexandre de. Direitos humanos fundamentais. 6. ed. São Paulo: Atlas, 2005, p. 48. 15 BRASTED, Leila Linhares; PITANGUY, Jacqueline (Org.). O Progresso das Mulheres no Brasil 2003–2010. Rio de Janeiro: CEPIA; Brasília: ONU Mulheres, p. 35; PIOVESAN, Flávia. Os direitos civis e políticos das mulheres no Brasil. Justitia, São Paulo, v. 65, n. 198, jan./jun. 2008, p. 134. Available in: . Acess in July 10, 2017.

211 According to Professor Valentin-Stelian Badescu16, the need for legal protection and safeguarding equality between men and women is an essential element for harmonious human development, because with this legal protection, it is possible to express a range of guarantees and rights that infl uence the health and sanity of the person, and this is the reason why most states include this protection as a fundamental value. In the Brazilian constitutional text, the formal equality inscribed in the caput of article 5, as well as the other normative commands that derive from this and that are in the supreme norm, which also translate feminist guarantees, transpose the beginning of a protection in which women are recognized in its singularity, considering diverse cultural and social contexts. Accordingly, the Brazilian Civil Code published in 2002 refl ected these guarantees and broke with the discriminatory character that was brought in its old text in relation to the woman, since the Civil Code of 1916 considered, among others, the woman subordinated to the masculine leadership; the predominance of family power in the paternal fi gure, in the administration of goods, including those of the woman herself.17 In this order, it is, theoretically, possible to detect the concern of the normative system to protect, based on social, philosophical and cultural evolution, the rights related to women, taking into account the existence of a gender inequality relationship, seeking to promote equality and imbalance between men and women, bringing mechanisms to protect these rights.

3. Women: Obstetric Violence Against Santa Catarina State Law n. 17.097/2017 Although gender equality in the legal system is the rule, the imbalance is inherent in social and cultural development. A campaign by the United Nations – UNITE to End Violence against Women (2017) – found that 7 out of 10 women worldwide reported having experienced physical and / or sexual violence at some point in their lives; in addition, about 1 in 4 experience physical or sexual violence during pregnancy. Gender-based violence occurs when “an act is directed against a woman, because she is a woman, or when acts aff ect women disproportionately”18, this aggression “violates, impairs or void women to enjoy human rights and fundamental freedoms”19. In Brazil, among some measures taken to balance the disparity between genders was the edition of the renowned “Maria da Penha” Law (Law 11.340 / 2006), which aims to curb domestic and family violence against women.

16 BADESCU, Valentin-Stelian. Legal protection of woman’s rights – the principle of non discrimination, the fundamental principle of rights. Journal of Law and Administrative Sciences, p. 56-76, 2015. Available in: . Acess in July 10, 2017. 17 PIOVESAN, ibid., p. 143. 18 PIOVESAN, Flávia. A luta das mulheres pelo direito a uma vida sem violência. Revista Jurídica Consulex, Brasília, v. 18, n. 426, p. 30-35, out. 2014. 19 OLIVEIRA, Maria de Fátima Cabral Barroso de. A violência (sexual) do Estado. Revista Síntese Direito Penal e Processual Penal, São Paulo, v. 14, n. 79, maio 2013, p. 29.

212 In this line, recently, Law n. 13.015/2015 included in the list of homicide qualifi ers the so-called “feminicide”, when it is practiced against the woman for reasons of the female sex, considering these reasons of condition when the crime involves domestic and family violence; contempt or discrimination to the status of woman20, repeating the existence of gender inequality and the necessary state action in order to protect and guarantee equality. Th us, in spite of the persistence of violence against women in various social milieus, “and as if domestic violence was not enough to retard the progress of women’s rights, another means of violence has become increasingly visible in Brazilian society: obstetric violence”.21 Due to a number of factors, obstetric violence has attracted attention and alarmed society, ranging from crises related to public health care to problems involving private rights in the relationship between health professionals and health plans. According to Elizabeth Kukura,22 obstetric violence is the extension of abuse, coercion and other forms of mistreatment that women experience during childbirth, which, according to researchers who have studied this phenomenon, various practices have being identifi ed to occur throughout the gestational period ranging from subtle humiliation to coercion to clinical treatments and verbal and physical abuse. In addition, women undergo forced cesarean sections and episiotomies (an incision made in the perineum to enlarge the birth canal) unnecessary, as well as delay or denial of pain relief, forced vaginal examinations. Some women who wish to decline a cesarean section in favor of continuous labor are labeled selfi sh or poor mothers. Th e author goes on to say that there are health care providers who violently disregard the principles of medical ethics and law. But the problems of abuse, coercion and mistreatment in childbirth are not just from the professionals. Instead, there are institutional factors and structural conditions that contribute to a professional culture that in some health care settings tolerate such actions. In addition, mistreatment of women during childbirth is permitted by social views that female bodies are objects to be used and that women as altruistic mothers must subjugate their own needs according to the needs of others.23 Th e Second World War represented an initial milestone for the institutionalization of childbirth24, which was preferably made in the hospital environment, since, up until then, it was an act performed at home. Th is hospitalization process represented “the

20 BRASIL. Decreto-Lei n. 2.848, de 7 de dezembro de 1940. Código Penal Brasileiro. Available in: . Acess in July 11, 2017. 21 ARSIE, Jaqueline Gonçalves. Violência obstétrica: uma violação aos direitos fundamentais da mulher. 2015. 96 f. Monografi a (Graduação em Direito) – Universidade Federal de Santa Catarina, Florianópolis, 2015, p. 31. 22 KUKURA, Elizabeth. Th e problems with obstetric violence: applying vulnerability theory to improve maternity care. Vulnerability Workshop, Northeastern, apr. 2016, p. 3-4. 23 KUKURA, ibid., p. 3-4. 24 ARSIE, ibid., p. 33.

213 appropriation of knowledge in this area and the development of medical knowledge, culminating in the establishment of the medicalization of the female body”.25 In Brazil, women’s health care measures are already in place in the 1940s. At the beginning of the 1960s, concerns were focused on gestational attention and delivery, mainly due to the introduction of preventive medicine that led to the creation of health centers and, consequently, prenatal care programs. However, obstetric violence, in spite of several attempts to provide women’s and gestational health care, is alarming when it comes to studying the situation, because, according to research on the subject, 25% (twenty-fi ve percent) of the women interviewed (and this represents 592 women) reported that they have already suff ered some type of aggression during pregnancy, antenatal consultations or even childbirth.26 Other research also demonstrates the situation, such as Rehuna (Network for the Humanization of Childbirth and Birth); Th e “Parto do Princípio” Network, whose work they called “Parirás com Dor” (you’ll give birth painfully); and the Artemis Non- Governmental Organization, which try to combat obstetric violence, which is designated as being practiced against women during prenatal, childbirth and the puerperium. Such is the importance and occurrence of a violation of women’s rights in those periods, that the World Health Organization, at a conference in California in 1985, recommended some practices to be adopted during childbirth, which are: (1) to allow women to take decisions about their care; (2) follow-up during labor; (3) freedom of movement and positions during childbirth; (4) no routine episiotomy; (5) no routine scraping or enema; (6) not dot make routine electronic fetal monitoring; (7) allow the ingestion of liquids and foods in labor; (8) restrict the use of oxytocin and anesthesia; (9) limit cesarean rates to 15%.27 In Venezuela, in an exploratory study that included 425 users admitted to the Concepción Palacios maternity hospital, located in the city of Caracas, it was discovered that 66.8% of the patients had undergone medical acts without consent and that 49.4% of the users had some form of treatment.28 Because of that, in 2007, the so-called “Ley orgánica sobre el derecho de las mujeres a una vida libre de violencia” (Organic Law on Women’s Right to a Life Free of Violence) innovated and designated, in it’s 15th article, what is considered to be obstetric violence, characterized as the appropriation of the body and the reproductive processes of women by health professionals, that is expressed in a dehumanized treatment, an abuse of

25 NAGAHAMA, Elizabeth ErikoIshida; SANTIAGO, Silvia Maria. A institucionalização médica do parto no Brasil. Ciência & Saúde Coletiva, v. 10, n. 3, p. 656, 2005. Available in: . Acess in July 11, 2017. 26 VENTURI, G. et al. Mulheres brasileiras e gênero nos espaços público e privado. Ago. 2010. 301 p. Available in: . Acess in July 11, 2017, p. 3. 27 TAVERAS, Anthony Gonzalez. Parto humanizado como respuesta a la violencia obstetrica. Revista de Estúdios Criticos del Derecho, v. 11, p. 85, 2015. Available in: . Acess in July 12, 2017. 28 AA.VV. Violencia obstétrica. Un enfoque de derechos humanos. México, GIRE, 2015. Available in: . Acess in December 12, 2017, p. 63.

214 medication and pathologies of natural processes, bringing with it the loss of autonomy and ability to freely decide on their body and sexuality, negatively impacting the quality of life of women.29 Venezuela became the fi rst country to legally defi ne obstetric violence and to typify it as a crime. In such cases, the court shall impose a fi ne on the person responsible or liable. A certifi ed copy of the fi nal judgment must be sent to the respective professional association or trade union institution, for the purposes of the corresponding disciplinary procedure.30 In addition, specifi cally in article 51, it was defi ned which are the acts that constitute obstetric violence carried out by health professionals, sanctioning the practice with a fi ne and sending a copy of the conviction sentence to the activity inspection body.31, 32 In spite of that, considering obstetric violence as a crime is a measure that is not suitable to face this problem, because work routines in hospitals in Venezuela comply with a pattern according to the institutional model of Venezuelan obstetric care. In this way, the solution should be focused primarily on the transformation of this hegemonic

29 VENEZUELA. Ley n. 38.668, de 23 de abril de 2007. Ley Organica sobre el Derecho de las Mujeres a una Vida Libre de Violencia. Available in: . Acess in July 11, 2017, p. 8. 30 BELLI, L.F., La violencia obstétrica: otra forma de violación de los derechos humanos. Available in: . Acess in December 12, 2017, p. 29. 31 VENEZUELA, ibid., p. 18. 32 “Violencia obstétrica: Artículo 51. Se considerarán actos constitutivos de violencia obstétrica los ejecutados por el personal de salud, consistentes en: 1. No atender oportuna y efi cazmente las emergencias obstétricas. 2. Obligar a la mujer a parir en posición supina y con las piernas levantadas, existiendo los medios necesarios para la realizació n del parto vertical. 3. Obstaculizar el apego precoz del niñ o o niñ a con su madre, sin causa médica justifi cada, negándole la posibilidad de cargarlo o cargarla y amamantarlo o amamantarla inmediatamente al nacer. 4. Alterar el proceso natural del parto de bajo riesgo, mediante el uso de técnicas de aceleración, sin obtener el consentimiento voluntario, expreso e informado de la mujer. 5. Practicar el parto por ví a de cesá rea, existiendo condiciones para el parto natural, sin obtener el consentimiento voluntario, expreso e informado de la mujer. En tales supuestos, el tribunal impondrá al responsable o la responsable, una multa de doscientas cincuenta (250 U.T.) a quinientas unidades tributarias (500 U.T.), debiendo remitir copia certifi cada de la sentencia condenatoria defi nitivamente fi rme al respectivo colegio profesional o institución gremial, a los fi nes del procedimiento disciplinario que corresponda”. “Obstetric violence: Article 51. Constitutive acts of obstetric violence shall be those performed by health personnel, consisting of: 1. Failure to respond to obstetric emergencies in a timely and eff ective manner. 2. To force the woman to give birth in the supine position and with the legs raised, existing the means necessary for the realization of the vertical birth. 3. Obstruct the child’s early attachment to his mother, without justifi ed medical reasons, denying him or her the possibility of carrying or loading and breastfeeding or breastfeeding her at birth. 4. Alter the natural process of low risk childbirth through the use of acceleration techniques without obtaining the voluntary, express and informed consent of the woman. 5. Practicing the delivery by cesarean section, existing conditions for natural childbirth, without obtaining the voluntary, express and informed consent of the woman. In such cases, the court will impose a fi ne of two hundred and fi fty (250 TU) to fi ve hundred tax units (500 TU), and must send a certifi ed copy of the defi nitive conviction to the respective professional association or guild institution, Th e purposes of the relevant disciplinary procedure”.

215 model of obstetric care, rather than on the individualization of sanctions for medical personnel.33 Along the same lines, Argentina, in an investigation carried out in the third largest maternity hospital in Argentina, in which surveys were carried out both to users and to medical personnel, revealed the persistence of behaviors constituting obstetric violence: of the women surveyed, 44.4% reported having received verbal abuse. Regarding medical procedures without informed consent, 86.6% broke the bag, 96.6% were given medication to accelerate labor, 63.3% had vaginal touches repeatedly and by various people, and 73.3% had an episiotomy. One hundred percent of the women claimed that they took their son immediately after delivery.34 Because of these facts, Argentina enacted the Act number 25.929 in 2009, which deals with humanized childbirth, however, although it is very meticulous regarding the rights of pregnant women and pre-labor, childbirth and postpartum work, it has not specifi cally dealt with obstetric violence. Th is only occurred in 2009 with the edition of Act number 26.485. Th e Law number 26.485, which legislates about the protection of women to prevent, punish, and eradicate violence against women in areas that develop their interpersonal relations, also brought the concept of obstetric violence into account, defi ning it as the one practiced by the professional of health on the body and the reproductive processes of women, expressed through a dehumanized treatment, abuse of medications and “pathologicalization” of natural processes.35 Brazil, at “federal level”, does not have a specifi c law on obstetric violence. However, there are bills dealing with it on obstetric care services, among them, there is Law n. 7.633/2014 by Jean Wyllys, which deals with the humanization and care of women and the newborn during the cycle of puerperium.36 Independently of the absence of federal legislation, the State of Santa Catarina innovated and edited Law n. 17.097, sanctioned on January 17, 2017, which provided for the implementation of information and protection measures for pregnant and parturient women against obstetric violence in the State of Santa Catarina. Th e legal norm that counts with nine articles is the fi rst document with force normative to bring the defi nition of obstetric violence in Brazil, defi ning in its article 2, as “any act practiced by the doctor, the hospital staff , by a relative or companion who off ends, in a verbal or physical way, pregnant women, in labor or during the puerperium period”37.

33 AA.VV., ibid., p. 63. 34 AA.VV., ibid., p. 64. 35 ARGENTINA. Ley n. 26.485, de 11 de marcio de 2009. Ley de protección integral para prevenir, sancionar y erradicar la violencia contra lãs mujeres en los á mbitos en que desarrollen sus relaciones interpersonales (Law for the integral protection of women, to prevent, punish, and eradicate violence against women in the areas that develop their interpersonal relations). Available in: . Acess in July 11, 2017, p. 4. 36 ARSIE, ibid., p. 60. 37 BRASIL. Santa Catarina. Lei n. 17.097, de 17 de janeiro de 2017. Sobre implantação de medidas de informação e proteção à gestante e parturiente contra a violência obstétrica no Estado de Santa Catarina. Available in: . Acess in July 11, 2017.

216 Consequently, it presents in article 3 an exemplary role of conduct that can be considered verbal or physical off enses, among which: treating the pregnant or parturient in a way that makes her feel bad about the treatment received; make fun or reproach the parturient with verbal or physical acts; do not listen to the complaints and doubt about them; lowering women through tiny nominations; make her believe that the cesarean section is necessary, using hypothetical and unproven criteria; refuse birth attendance; transfer the hospitalization without analysis and confi rmation of the existence of a vacancy; prevent follow-up throughout labor; prevent contact with family members and even restrict access to the cell phone; subjecting it to painful, unnecessary or humiliating treatment; not performing analgesia; performing unnecessary episiotomy; handcuffi ng the prisoners in labor; submitting them to procedure without prior permission or explanation; after delivery, taking to much time to accommodate her; submission to procedures exclusively for training students; performing routine aspiration or fi rst-hour procedures in a healthy infant without having initial contact with the mother’s skin; removing the baby from the room unnecessarily; not informing women with more than 25 (twenty-fi ve) years or more than 2 (two) children about the possibility of performing fallopian tubes ligation for free by the Unifi ed Health System; denying free access of the baby’s father.38 Because it deals with the law of the implementation of measures of information and protection to the pregnant and parturient woman against obstetric violence, as an information mechanism, the legislator imposed on the Executive Branch, through the Secretary of State for Health, the obligation to elaborate the so-called Rights of the Pregnant Woman and Parturient, which should contain “information and clarifi cations necessary for a decent and humanized hospital care” 39. In addition, it mandated hospital establishments and equated them with health posts, basic health units and doctors’ offi ces specializing in the care of women’s health, to present informative posters containing the list of which are considered, exemplarily, off ensive, provided for in paragraphs I to XXI above. Such informative graphic material should also include information on organs and procedures for possible denunciations in case of violence. Public organs of the respective scopes will be responsible for the application of sanctions due to non-compliance with the norms established by law, through administrative procedures. It ends, then, the normative text determining that the Executive Power will regulate the law. Because it is a recent legal document, there are no signifi cant manifestations of the text, even if, as it traces in its commands, it will be necessary to regulate Law no. 17.097/2017, attributed to the Executive Branch (Article 8 40 ).

38 BRASIL. Santa Catarina. Lei n. 17.097, de 17 de janeiro de 2017. Sobre implantação de medidas de informação e proteção à gestante e parturiente contra a violência obstétrica no Estado de Santa Catarina. Available in: . Acess in July 11, 2017. 39 BRASIL. Santa Catarina. Lei n. 17.097, de 17 de janeiro de 2017. Sobre implantação de medidas de informação e proteção à gestante e parturiente contra a violência obstétrica no Estado de Santa Catarina. Available in: . Acess in July 11, 2017. 40 Art. 8º. O Poder Executivo regulamentará esta Lei, nos termos do inciso III, do art. 71, da Constituição

217 Nevertheless, before it became law, the bill that was forwarded to the Legislative Assembly was based on the justifi cation presented by State Representative Angela Albino, who pointed out that phrases such as “At the time you were doing, you were not screaming like that, huh?”; “Do not cry no, because next year you’re here again”; “If you continue with this tantrum, I will not attend you.” “When was the time to do it, you like it, huh?” “Shut up! Stay quiet, otherwise I’ll punish you.” all are repeatedly mentioned by women attended in Brazil and are characterized as reports of pain and humiliation during the delivery, as well as reports of abuse, threats, unnecessary exams and procedures, physical and psychological aggression. In spite of the collection of this information, the moment of delivery is especially important for women, who must have the power to decide on their body and their freedom, granting them access to health in a safe, eff ective, respectful way, counting on professionals and services capable of preserving the dignity of women.41 Th ere are enough reasons for legal provisions protecting women’s rights, especially those dealing with the gestational process, because this is a process of choice for the pregnant or parturient woman herself that must be respected by health professionals, whom, may sometimes, in the heart of solving the situation more quickly and even safely end up extrapolating the limits of their intervention in disregard the will of the woman. Th erefore, the law of Santa Catarina is of relevance to the Brazilian legal scene, mainly because it is a unprecedented subject in the country and capable of leading to a normative evolution of federal scope or even in other states, allowing the beginning of a future protection of the rights of pregnant or parturient women.

4. The Eff ectiveness of the State of Santa Catarina Law of Protection to Pregnant and Parturient against Obstetric Violence Concepts such as eff ectiveness and protection often go by synonyms, but the reality is that they do not have the same focus, since eff ectiveness brings in its meaning the act of making eff ective, producing real eff ect; while protection is the act of supporting, helping, assisting. In this way, protection mechanisms are easier to fi nd in legal systems, however, not always, although they contain measures that protect rights, they are not actually eff ective, being sometimes only legal documents that do not produce a practical result. With regard to human rights, the mechanisms that eff ect their protection become a governance process, a management method by which society’s direction and ability’s to

do Estado, no prazo de 60 (sessenta) dias após sua publicação. Art. 8º. Th e Executive Branch shall regulate this Law, pursuant to item III, of art. 71, of the State Constitution, within 60 (sixty) days after its publication. 41 BRASIL. Santa Catarina. Projeto de Lei n. 482.9, de 6 de novembro 2013. Dispõe sobre a implantação de medidas de informação e proteção à gestante e parturiente contra a violência obstétrica no Estado de Santa Catarina. Available in: . Acess in July 11, 2017.

218 achieve public objectives in defense, protection, promotion, education on the culture of human rights are determined and defi ned. It is a process guided by fi ne determinations and exists to obtain results that include both normative and democratic development, since they especially impose on the freely elected defender of citizen’s rights the need to obtain good results in this aspect.42 Among the techniques of positivation, it is important to point out that “fundamental rights due to various functions fall into two main groups: rights of defense (freedom, equality, social and political rights); rights to benefi ts (rights to benefi ts in the broad sense and strict sense) “. In this prospectus, “the intervention of the legislator is necessary so that the rights of the defense and of the rights of the person have full eff ectiveness and applicability”.43 With respect to the rights of defense, which are immediately applicable (paragraph 1 of article 5 of the Brasilian Federal Constitution), they are directly enforceable, since they are disposed in the constitutional norm so as to “confer on the individual an active subjective situation – a legal power – whose eff ectiveness must be immediate and independent of the service of others”.44 Th e rights to benefi ts require a direct action of the public power. In the proposed theme, the rights of defense, especially those of freedom and equality, must be guaranteed to women, and specially, among them, pregnant women, so that can be assured the eff ective exercise of their autonomy of will during the gestational period as protection against obstetric violence. In Robert Alexy’s conception,45 the duty of equality in the general statement of equality culminates in the sense that the general command cannot authorize any diff erentiation, it becomes necessary the middle term and, therefore, the dictum that “equals must be treated equally, and the unequal, unequally, is the starting point for the exercise of equality”. Likewise, the author expresses the general right of freedom as one in which the action of the individual is expressed freely by doing or failing to do what one wants, so as to protect not only the individual’s doing, but also his “Being”, since it makes it free by itself and free from interventions of others.46 Among the mechanisms for the implementation of human rights are the so-called affi rmative actions, which express the exercise of rights of freedom and equality and can be superfi cially defi ned “as the whole set of systematic norms for the promotion

42 ALBA, Luis Eduardo Zavala de. Gobernanza en derechos humanos: hacia una efi cacia y efi ciencia institucional. Revue Quebecoise de Droit International, special issue, p. 275-276, mar. (2015). Available in: . Acess in July 12, 2017. 43 MARCO, Sadi José de. Hermenêutica: a efi cácia dos direitos fundamentais. In: STRAPAZZON, Carlos Luiz; GOLDSCHMIDT, Rodrigo; TRAMONTINA, Robison (org.). Teoria geral e mecanismos de efetividade no Brasil e na Espanha: Tomo I. Joaçaba: Ed. Unoesc, 2013. p. 62. Available in: . Acess in July 12, 2017. 44 MARCO, ibid., p. 68. 45 ALEXY, Robert. Teoria dos direitos fundamentais. 2. ed. 5. tiragem. São Paulo: Malheiros Editores, 2017, p. 397. 46 ALEXY, ibid., p. 343-344.

219 of groups that suff er some kind of social discrimination,47 translating legal norms that consider inequalities between certain people or categories of people, with the aim of promoting material equality among them“.48 One of the elements of affi rmative action is precisely temporariness, since these mechanisms of eff ectiveness of rights must really seek the change of society in that specifi c point to which they guard. Th erefore, a more complete concept covering this aspect can be drawn from the work of Yuri Schneider 49, which affi rms that affi rmative actions represent temporary policies, instituted by the public power and also by private, compulsory or voluntarily aimed at protecting the socially excluded part of the population, whether for reasons of economic order, race, gender, religion, in an attempt to provide equal treatment and opportunity, in order to correct or reduce the disparity that occurred in the past. In this reasoning, the legislation protecting women against obstetric violence considers that this group, in the face of inequalities, needs state protection as a way of assuring their rights to equality and freedom, because, although materially equal, practically it is not perceived the realization of this equality, since, in some situations, there is a violation of the will of the expectant or parturient woman. Th us, the creation of specifi c laws that protect them aims at changing the behavior of society in a way to exterminate or try to repress these abuses against the autonomy of the will in the process of gestation. Faced with this fact, that the autonomy of the will in the gestational process is the core of all the protection expended to pregnant and parturient women and is strictly linked to the rationally foreseen action in Kantian theory, in which “all people have an intrinsic value, absolute, and that people are legislators of themselves, for this reason autonomy comes from these premises”.50 Deciding about the procedures to which she wishes to submit, the medications she tolerates, the interventions she allows, among other choices that are necessary during pregnancy, are deliberations that are exclusively for the woman, which must be guided by the health professionals assisting them, but their will, provided that it is permitted and not in violation of legal norms, must be respected and fulfi lled. Th e autonomy of the will involving the doctor-patient relationship, and even of other health professionals like nurses, goes through a process of trust to be established between the parties. Th e patient approaches the physician knowing that he is bound to the oath and has professional integrity to act in the best interests of the patient, even if the physician is at risk of failure. Although there are contractual and fi nancial arguments that relate

47 SCHNEIDER, Yuri. A (in)efetividade dos direitos fundamentais sociais no estado democrático de direito; as ações afi rmativas como políticas públicas consectárias da busca da efi caz aplicação do princípio constitucional da igualdade. Joaçaba: Ed. Unoesc, 2015. Available in: . Acess in July 12, 2017, p. 44. 48 SCHNEIDER, ibid., p. 45. 49 SCHNEIDER, ibid., p. 46. 50 RECKZIEGEL, Janaína. Dignidade humana em risco: existe limite para as experiências científi cas? Curitiba: Prismas, 2016, p. 209.

220 the physician to the patient and vice versa, or even doctors and health institutions, the doctor-patient relationship must overcome any consideration of self-interest and gain. It is a professional relationship that must be indiff erent, lasting, intimate and trustworthy.51 It is based on this relation of autonomy of the will, that is, in the exercise of the right of freedom and equality, that the norms of protection of pregnant women and parturient against obstetric violence, Law n. 17.097/2017 of Santa Catarina, substantiate the protective legal system the rights of women. In a similar perspective, is the health companies relation to the Act 17,097/2017 of Santa Catarina, that, although has established mechanisms to compel doctors and health units that attend pregnant or parturient women, it has no eff ect in on the health business industry, and considering the importance that the health plans have for a eff ective development policies on health education, this could have been an important mechanism to help protect women’s rights. Th e existence of laws that specifi cally regulate the situation of obstetric violence is important because it recognizes, a priori, the gender inequality and the diff erential treatment to which the pregnant woman and the parturient sometimes encounter, impelling protective interventions by the state action as a way to reduce or extinguish the practice of abusive acts committed during the gestational period against women. In this sense, the Santa Catarina law contributes, as an affi rmative action of a regional scope (limited to the State of Santa Catarina), to safeguard the rights of pregnant women and parturient in order to protect them from abusive and off ensive actions committed by health professionals and/or family members during the gestational period, even though it have not created any form of mandatory obligation to the health plans (insurance companies)

5. Final Remarks It is perceived that obstetric violence is real in the daily life of women and, at the mercy of this, its protection through laws that safeguard the autonomy of the will of pregnant women and parturient is indispensable as a way to guarantee the free and balanced exercise of women’s rights. Despite the lack of specifi c laws that repress obstetric violence in several countries, including at federal level in Brazil, the State of Santa Catarina, with an innovative feature, edited the Act number 17.097/2017 implementing information and protection measures for pregnant and parturient women. Notwithstanding the good intention of the said legal command, it is a fact that it leads to a palliate eff ectiveness of protection of these rights, since it foresees the behaviors that considers off ensive, but did not assign a civil or criminal specifi c responsibilities or sanctions to those who commit the acts described in the law as violators of rights of pregnant or parturient women, only made it impossible for health units (hospitals, private clinics, basic health units, and doctors’ offi ces specialized in women’s health care) to be allowed to function regularly, and they were forced to post a list containing which is considered obstetric violence.

51 O’NEILL, Onora. Autonomy and trust in bioethics. New York: Cambridge University Press, 2005, p. 17.

221 However, the only punishment they may receive will be related to the license to allow the activities to be performed, which in Brazil are granted by a government agency and allow the health professional to keep his clinic open to the public. Regarding the health plans (the health business companies) it was not possible to infer any mechanism that was able to compel the health insurance companies to demand from the healthcare professionals the observation of these norms under some administrative penalty, which would have been eff ective mechanism. Th erefore, it is perceived that Santa Catarina’s law does not generate eff ectiveness in relation to an eff ective accountability of those who violate it, since it did not such relevant penalties, especially in relation to health plans, which were not held liable if their members did not comply with the law. For this reason, although it is an important instrument for the beginning of the protection of pregnant women and parturients, it still seems to be lacking educational campaigns that give people the knowledge of the subject so that the eff ectiveness of this protection can be guaranteed.

222 Part VI.

BUSINESS AND HUMAN RIGHTS IN THE INFORMATION SOCIETY

19 The Protection of Personal and Sensitive Data of the Employee in the Brazilian Legal System

Rodrigo Goldschmidt 1 Beatriz de Felippe Reis 2

1. Initial Considerations We live in a society in which the treatment and the combination of personal data is becoming increasingly frequent. Th is practice allows you to reveal information about specifi c individuals, which may signify violation of the fundamental rights of its owners. In labor relations, in which there is a greater degree of subordination and vulnerability of the employee, the need to protect personal and sensitive data becomes even more urgent, because, to enter these data, the employer obtains information that does not show only professional skills, but also issues related to privacy and private life of the worker. In the Brazilian legal system, although there is no law expressly ensuring the protection of personal and sensitive data of workers, it is intended, by using the theory of horizontal eff ects of fundamental rights, establish a limit on the employer to process these data, so as to guarantee respect for the fundamental rights of workers. For both, in a fi rst moment will be made a brief discussion about the impact of new technologies in obtaining data from the employee. Next, some defi nitions will be presented in respect of personal data and sensitive data. In the following part, it will be checked how the Brazilian legal system and some international instruments take care of the theme, with focusing on the employment relationship. In the end, the chapter will present a brief study of the protection of personal and sensitive data of the employee under the constitutional perspective of horizontal eff ects of fundamental rights. Finally, using the method of legal interpretation based on the collection and analysis of the bibliography and legislation in this fi eld, the present research aims to advance the discussion on the creation of protective standards of personal and sensitive data, particularly in relation of employment, in which the level of inequality is patent in virtue of legal subordination of the worker, presenting a solution while reigns the normative vacuum in the Brazilian legal scenario.

1 Post-Doctor in Law by PUC/RS. Doctor of Law from UFSC. Teacher and Researcher of PPGD – Master in Law – UNESC. Labor Judge of TRT12. 2 Master student in law of PPGD/UNESC. Specialist in Labor Law by UNISINOS. Graduated in Juridical and Social Sciences by UFRGS. Judiciary Analyst of TRT4.

225 2. The Use of New Technologies in the Processing of Data from Employee Th e dynamics of the contemporary world resulted in the development of new technologies, the network of computers, the internet and other electronic tools, and, consequently, of a new information society,3 which operates on the basis of data.4 Th e advancement of technology and the means of communication brought profound impact for the Law and for the social relations, in particular, for Labor Law. We cannot deny that in terms of information technology and telecommunications, there was a greater availability of information by the worker himself and access to it by the employer. In this context, labor relations constitute a favorable environment for the collection of data and personal information 5 of the employee, since the selection of the candidate for a job vacancy the employer makes inquiries about life history, training and identifi cation data, as well as, applies tests and performs interviews. In the course of the contract and, sometimes, even after the termination, the employer also obtains and maintains an immense range of personal information of the worker. It should be emphasized that the collection by the employer of information on the experience and expertise of the employee, their physical and psychological characteristics, skills, capabilities, performance and behavior in general is not new. Th is practice, as noted by Sanden 6 “is inextricably linked to the business interest to improve both the production and the process of labor selection.” In fact, the big change was the possibility of processing of virtually unlimited amount of information about the employees, being that such data collected remain for years present and usable, capable of adding and correction, making reliable information,

3 According to Vieira (VIEIRA, 2007, p. 156), in 1993 the term information society was fi rst used offi cially by the President of the European Commission, Jacques Delors, at the Council of Europe in Copenhagen, to defi ne the crescent use of the technology of the information in the intention of reinforcing the economy, to improve the installment of the public services and to increase the quality of the life of citizens. 4 Th e expression “data” can be defi ned as the record that represents a fact, a concept, an instruction, an element or an attribute of the person, entity or thing, as Chehab points out. (see CHEHAB, G. C. Privacy threatened with death: challenges to the protection of personal data in the employment relationship through the use of information technology. São Paulo: LTr, 2015, p. 23) 5 As for the use of the terms “information” and “data”, Doneda (DONEDA, D. From privacy protection of personal data. Rio de Janeiro: Renovar, 2006, p. 152) explains that the content of both words overlaps in various circumstances, and the doctrine often treats these two terms indistinctly. Both “information” and “data” serve to represent a fact, a certain aspect of a reality, however each one carries a particular weight. In this sense, “data” has a more primitive and fragmented connotation, a kind of information in potential state, before being transmitted, whereas “information” refers to something beyond the representation contained in the data, in the which is already presupposed an initial phase of purifi cation of its content, then the information carries in itself an instrumental meaning, in the sense of reducing a state of uncertainty. 6 SANDEN MOREIRA DE SOUZA, A. F. Th e protection of personal data of employees in Brazilian law: a study on the limits on the obtaining and use by the employer of the information related to the employee. Sao Paulo: LTr, 2014, p. 23.

226 constantly available and fully usable, and can be freely combined and used for multiple purposes, such as highlights Sanden.7 It so happens that the transit of these information on the legal relationship of employment, marked by the subordination of the employee, without any kind of protection, can signify a greater risk of lesion to the rights of personality of the worker. It is worth remembering that at all stages of the employment contract, the employee information are handled by the employer or by its agents, which requires the observance of care necessary for the preservation of private life, of privacy, the image and the honor, under penalty of represent undeniable threat to fundamental rights. So, for the employees, this increment provided by new technologies brought real risks and potentials, to the extent that the information system imposes on them a constant supervision. Among the risks, Sanden 8 warns that: […] Information about the employee may be incorrect or misleading, consolidated form may be collected without your knowledge, including sensitive personal data, and can be used for a purpose diff erent from the originally planned to be collected. In addition, there is the possibility of the personal data being transmitted to third parties without the knowledge of the employee or without legal or contract authorization. Another danger is that the employer’s decisions are being taken by fully automated processes. Sharing of similar concern, Danilo Doneda 9 defends the need to establish mechanisms that allow the person, in this case, the employee, have knowledge and control over his own data, which represent direct expression of his own personality. Still, according to the author, “the protection of personal data is considered in various legal systems as an essential instrument for the protection of the human person and as a fundamental right.”

7 An example of the bad use of the informations, Sanden (SANDEN MOREIRA DE SOUZA, A. F. Th e protection of personal data of employees in Brazilian law: a study on the limits on the obtaining and use by the employer of the information related to the employee. Sao Paulo: LTr, 2014, p. 23-24) mentions a concrete case happened in the years 1990s with a company in Bavaria, Germany. In this case, the company intended to reduce the number of employees without obtaining the approval of Council of the Company. Using data collected in the personnel administration system (address, age, family situation), the company extinguished the bus connection it off ered to its employees to a remote residential area. With the information obtained in its system, the company verifi ed that the line served mainly employees who were young mothers. Th e extinction of the connection was aimed at forcing these young mothers to resign, because without the ease of transportation, they would not be able to combine employment with family obligations. As it would be the employees themselves who would demand the termination of contract, the company would avoid the intervention of the Council of the Company. Although no lawsuit was fi led in this case, the public awareness of the potential misuse of information contained in personnel management systems has increased in Germany. 8 SANDEN MOREIRA DE SOUZA, A. F. Th e protection of personal data of employees in Brazilian law: a study on the limits on the obtaining and use by the employer of the information related to the employee. Sao Paulo: LTr, 2014, p. 26. 9 DONEDA, D. Th e protection of personal data as a fundamental right. Espaço Jurídico : Journal of Law, Joaçaba, 2011, v. 12, n. 2, p. 92.

227 In Brazil, the Federal Constitution of 1988 does not expressly provides for protection of personal data, nor for sensitive data, and the legislation on infraconstitutional level still does not have a regulatory and protective model on the subject. Th is lack of regulation causes issues involving the acquisition and the use by the employer of information relating to the employee which do not receive due attention in the brazilian labor law doctrine, as indicates Sanden.10 However, as will be discussed in the sequence, the lack of legal provision may not be an obstacle to ensure an eff ective protection of personal and sensitive data in the extent that the importance of the subject today deserves.

3. Personal Data and Sensitive Data Having made this brief exposition on the use and risks aff orded by the use of new technologies in obtaining personal and sensitive data of the employee in the work relationship, it is necessary to defi ne what exactly are personal data and sensitive data. In the international context, the Council of Europe, by means of the Convention of Strasbourg 11 nº 108/1981, defi ned that personal data means “any information relating to an identifi ed or likely identifi cation.”12 Similarly, the Recommendation of the Committee of Ministers of the Council of Europe – Recommendation CM/Rec 13 (2015)5 defi nes personal data as being “any information relating to an identifi ed or identifi able individual.”14 Starting from the concept introduced, Doneda 15 warns that not all information that relates to an individual is really a personal information. As an example, the author mentions the views from on a person, his intellectual production, which is not per se personal information (although the fact of his authorship is). Th us, according to the understanding of the Council of Europe, which identifi es an information as personal is when the object is the very person, that is, the information has an objective bond with her. Th is distinction is fundamental to move other categories of information that, although they relate to a person, are not exactly personal information. As for the sensitive data, the Convention of Strasbourg nº. 108/1981 defi ned as those which “reveal racial origin, political opinions, religious or other beliefs, as well as personal data concerning health or sex life.”16 Taking this brief approach from some international instruments on the subject, we must analyze the defi nitions of personal and sensitive data in the light of our legislation.

10 SANDEN MOREIRA DE SOUZA, A. F. Th e protection of personal data of employees in Brazilian law: a study on the limits on the obtaining and use by the employer of the information related to the employee. Sao Paulo: LTr, 2014, p. 18. 11 Th e Convention of Strasbourg nº 108/1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. 12 In accordance with Article 2 of Convention nº 108/1981. 13 Th e Recommendation CM/Rec (2015)5 dispose on the treatment of personal data in the context of work. 14 According to part 1 of item 2 of Recommendation CM/Rec (2015)5. 15 DONEDA, D. From privacy protection of personal data. Rio de Janeiro: Renovar, 2006, p. 156. 16 In accordance with Article 6 of Convention nº. 108/1981.

228 At the national level, we have the Project of Law nº. 5276/2016,17 which defi nes personal data as that “data related to the natural person identifi ed or identifi able, including identifi cation numbers, locational data or electronic identifi ers when these are related to a person.”18 Regarding sensitive data, the mentioned Project of Law identifi es as being those on “racial or ethnic origin, religious beliefs, political opinions, the membership of the trade unions or organizations of a religious, philosophical or political char acter, data concerning health or sex life and genetic or biometrics data.”19 Having presented the defi nitions of normative nature, we pass to the notes of the doctrine. At the conceptual level, some authors, among them Chehab,20 frame the personal data “in stages or in the spheres that compose the privacy”, while the “sensitive data have an aff ect on the sphere of privacy”. For Chehab, precisely because of the sensitive data relate to racial or ethnic origin of the person, to their political opinions, philosophical or religious beliefs, their health and sexual choice is that they have a greater potential to cause off ense to fundamental rights. Th us, within the personal data, there is a group that deserves a special protection, which are the so-called sensitive data, which carry information that, if known or processed, would have a “high potential harmful to their holders”, as points Doneda.21 However, the author notes that: “[…] Even data not qualifi ed as sensitive, when subjected to a particular treatment, can reveal aspects of the personality of someone, may lead to discriminatory practices. Th at argument leads, in summary, to conclude that a given, in itself, is not dangerous or discriminatory – but the use made of it can be”. In relation to the theme, sharing this vision, Simon 22 points to the fact that “the crossroads of news gives rise to new forms of aggression to the public liberties because the citizen registered in a given database is constantly monitored, which aff ects, in a straightforward way, more sensitive aspects of their privacy and private life.” Apparently in the lessons of Martínez Bullé Goyri with respect to this group of “susceptible or sensitive information”, people should not have access without the consent of the right holder.23 Th is is because, for the author, in all of this information is the so- called “hard core of privacy”, because his knowledge “corresponds to the very concept

17 Th e Project of Law nº. 5276/2016, that disposes on the treatment of personal data for the warranty of the free development of the personality and the dignity of the natural person, was joined to the Project of Law nº. 4060/2012, which disposes on the treatment of personal data, and gives other providences. 18 Article 5, item I, of Project of Law nº. 5276/2016. 19 Article 5, item II, of Project of Law nº. 5276/2016. 20 CHEHAB, G. C. Privacy threatened with death: challenges to the protection of personal data in the employment relationship through the use of information technology. São Paulo: LTr, 2015, p. 61-62. 21 DONEDA, D. From privacy protection of personal data. Rio de Janeiro: Renovar, 2006, p. 161-162. 22 SIMÓN, S. Th e constitutional protection of the intimacy and private life of the employee. São Paulo: LTr, 2000, p. 162. 23 Cf. AMARAL, Júlio Ricardo de Paula. Eff ectiveness of fundamental rights in labor relations. 2. ed. São Paulo: LTr, 2007.

229 of the individual about himself, that does not aff ect nor interest anybody else than the individual himself, and with who he wants to share it freely.” Despite this, as highlighted by Doneda,24 the mere prohibition of collection and processing of sensitive data proves impracticable, because many times the use of these data is legitimate and necessary.25 Th us, it is necessary to ensure protection of personal and sensitive data, because, as Rodotà warns: “we should not tolerate that a given data is used to transform an individual into an object under constant surveillance.”26

4. The (No)Protection of Personal and Sensitive Employee Data As previously mentioned, the Brazilian legal system does not have a specifi c legislation concerning the protection of personal data, nor of sensitive data. However, with the broadening and deepening of the technology applied for the treatment of these data, it is imperative the development of a law on the subject. In Brazil, in 2014, we had the edition of Law nº. 12.965/2014, known as the Civil Internet Framework, which establishes principles, guarantees, rights and obligations for the use of the Internet in Brazil. In accordance with its Article 3, item III, the use of the Internet in Brazil will be governed by the principle of protection of personal data, in the form of law. However, until the present moment the regulatory law has not yet been adopted. Currently, we have some projects of law that are being processed in the Brazilian National Congress about the protection of personal data: Project of Law nº. 5276/2016, the Senate Project of Law nº. 330/2013 and Project of Law nº. 4060/2012.27 Despite that, in view of the political scenario, experts consulted by the Folha de São Paulo believe that a general law of data protection should be approved in Brazil only at the end of 2018, or in 2019.28

24 DONEDA, D. From privacy protection of personal data. Rio de Janeiro: Renovar, 2006, p. 163. 25 Th e author illustrates the case of the research of scientifi c character or even the medical activity, for which the importance of working with all possible data, including sensitive, is paramount. (DONEDA, 2006, p. 163). 26 RODOTÁ, S. Life in the surveillance society. Rio de Janeiro: Renovar, 2008, p. 19. 27 Th e Project of Law nº. 5276/2016 was established by the Ministry of Justice, in the framework of the National Secretariat for Consumer Protection, from various online public consultations involving companies, governments and organized civil society. It is a more robust design that addresses the consent, the international transfer of data and a competent body to deal with the issue. Currently, this project is attached to the Project of Law nº. 4060/2012. Th e Senate Project of Law nº. 330/2013 establishes guarantees more striking data protection of citizens, discusses in more detail every aspect of the processing of personal data, and considers the consent ”free, express, unambiguous and informed” as required for the processing of personal data. Finally, the Project of Law nº. 4060/2012 is the oldest and least protective of individual rights. Th e text of the project is very problematic, because it allows the processing of personal data without the due authorizations of their holders or guarantees in the transfer and security of those data. 28 HERNANDES, R. Brazil should have data protection law only in late of 2018, experts say. Folha de S. Paulo, São Paulo, 24 Dec. 2017. Available at: http://www1.folha.uol.com.br/tec/2017/12/1945134- brasil-deve-ter-lei-de-protecao-de-dados-so-no-fi m- of-2018-dizem-especialistas.shtml.

230 While this national law of data protection is not approved, it is necessary to consider some important international initiatives that can assist in the study of the subject, to the extent that deal with the data protection as a question inserted in the sphere of human rights. Following this perspective, Doneda29 highlights the Convention of Strasbourg nº 108/ /1981 as an important milestone for approaching the issue from the perspective of fundamental rights, because in its own preamble the Convention provides that the protection of personal data is directly linked to the protection of human rights and fundamental freedoms.30 In the sequence, approved in 1995, came to Directive 95/46/EC of the European Parliament and of the Council of the European Union, which regulates the processing of personal data and the free movement of such data in the framework of the European Community, also with a focus on fundamental rights.31 In 1997, emerged the Directive nº 97/66, concerning the processing of personal data and the protection of privacy in the telecommunications sector.32 And, in 2002, was drafted the Directive nº 2002/58, dedicated to the processing of personal data and the protection of privacy in the electronic communications sector. According to Doneda 33 these Directives represent “a minimum standard of protection throughout the European Union,” developed from the experience of some European countries that had already legislated on the matter. Finally, the Charter of Fundamental Rights of the European Union, a document that contains provisions on human rights, proclaimed on 7 December 2000, as another important document that deals, in particular Article 8 thereof, with the protection of personal data.34 Outside of the European continent, the Ibero-American countries, in order to boost the creation of frameworks and consolidate a culture of protection of personal data,

29 DONEDA, D. Th e protection of personal data as a fundamental right. Legal Space: Journal Of Law, Joaçaba, 2011, v. 12, n. 2, p. 102. 30 According to the Preamble of the Convention nº 108/1981: ”Th e Member States of the Council of Europe, signatory to the present Convention: Whereas the purpose of the Council of Europe is to achieve an ever closer union among its members, in particular respect for the supremacy of law, as well as human rights and fundamental freedoms; Whereas desirable to extend the protection of the rights and freedoms of all people, in particular the right to respect for private life, taking into consideration the increasing fl ow, across borders, of personal data capable of processing; At the same time reaffi rming its commitment to freedom of information without frontiers; Recognizing the need to reconcile the fundamental values of respect for private life and the free fl ow of information between peoples, have agreed as follows: [...]”. 31 In this sense, it is mentioned in Article 1, item 1, of Directive 95/46/EC, according to which: ”Member States shall ensure, in accordance with this Directive, the protection of individuals’ fundamental rights and freedoms, notably the right to privacy, with regard to the processing of personal data.” 32 Th is Directive is no longer in force. It was repealed and replaced by Directive 2002/58. 33 DONEDA, D. From privacy protection of personal data. Rio de Janeiro: Renovar, 2006, p. 227. 34 Th e article 8 of the Charter of Fundamental Rights of the European Union provides: ”1. All people have a right to protection of personal data which concern them. 2. Th ese data must be processed fairly for specifi c purposes and with the consent of the person concerned or some other legitimate basis laid down by law. All persons have the right of access to data which has been collected concerning them and to obtain the correction. 3. Compliance with these rules is subject to monitoring by an independent authority.”

231 signed in June 2003, in Guatemala, the Declaration of La Antigua, which created the Ibero-American Network of Data Protection. Still in the same year, in November, they signed the Declaration of Santa Cruz de la Sierra, Bolivia, which recognized, expressly, the fundamental right to protection of personal data.35 From the above regulations, it is possible to realize a clear concern in the international framework to ensure an adequate level of protection for personal data, which are considered essential for the respect of the human person and fundamental freedoms. So, in the framework of labor relations, in which the degree under-suffi ciency of employee is even greater, how to protect your personal and sensitive data? Concerned with this issue, in 1996 the International Labor Organization (ILO) adopted the Repertoire of Practical Recommendations 36 on the Protection of Personal Data of workers. But, already in the preface, the Repertoire of Recommendations of the ILO informs that it is not mandatory, limiting itself to make recommendations, to the extent that does not supersede national legislation, regulations, international labor standards or other standards acceptable. However, although absent the binding character, of recommendations the Brazilian legal system lacks a specifi c regulatory regime for the employment sector regarding the treatment of the personal data of workers. Apparently Brazil being one of the members of the ILO, international standards issued by it constitute an important tool for realization of the Social Right. In this sense, the Statement nº 03 of the 1st Conference on Material and Procedural Law of Labor Justice establishes in the item I that even the ILO Conventions not ratifi ed by Brazil can be applied as sources of labor law, in case there is no rule of domestic law regulating the matter. It occurs that in the framework of the ILO there is no Convention dealing with the subject of the protection of personal and sensitive data of workers, with only the aforementioned Recommendation. In this sense, the item II of the Statement nº 03 reinforces the understanding that the recommendations should serve as a source of interpretation, as well as strengthen judicial decisions.37

35 IBERO-AMERICAN DATA PROTECTION NETWORK. Report 2016: Data protection for minors. Madrid: Trama Editorial, 2017. Available at: http://www.redipd.es/documentacion/otrosdocumentos/ common/Primer_informe_Red_Iberoamericana_de_Proteccion_de_Datos.pdf. 36 INTERNATIONAL LABOR ORGANIZATION. Repertoire of Practical Recommendations of ILO. Available at: http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---safework/documents/ normativeinstrument/wcms_112625.pdf. 37 STATEMENT Nº. 3. SOURCES OF LAW – INTERNATIONAL STANDARDS. I – SOURCES OF LABOR LAW. COMPARATIVE LAW. ILO CONVENTIONS NOT RATIFIED BY BRAZIL. Th e Comparative Law, according to Art. 8º of the Consolidation of Labor Laws, is a subsidiary source of Labor Law. Th us, the Conventions of the International Labor Organization not ratifi ed by Brazil can be applied as sources of labor law, in case there is no rule of domestic law governing the matter. II – THE SOURCES OF LABOR LAW. COMPARATIVE LAW. THE ILO CONVENTIONS AND RECOMMENDATIONS. The use of international standards, issued by the International Labor Organization, it constitutes an important tool for realization of Social Right and is not restricted to the direct application of conventions ratifi ed by the country. Th e other ILO standards, such as the Conventions not ratifi ed and Recommendations, as well as the reports of its experts, should serve as a source of interpretation of national law and as a reference to strengthen judicial decisions based on domestic legislation.

232 Th us, the absence of a national law concerning the processing of personal and sensitive data of the worker cannot serve as an obstacle to their protection and defense, because the norms of the ILO are an important source of law for the Brazilian legal system.

5. The Horizontal Eff ects of Fundamental Rights in the Protection of Personal and Sensitive Employee Data Both the State and the private entities use intensely the fl ow of information and data for their operation. Otherwise, the interruption or even the questioning of this fl ow by citizen can lead to their exclusion of some aspect of social life, as it points Doneda.38 In the fi eld of labor relations, the situation is not diff erent. With the progress of information technology, the employer has new tools to perform the treatment and processing of personal and sensitive data of workers. In consequence, the employee is increasingly vulnerable, to the extent that it is compelled to provide their personal data and, sometimes, even the sensitive data, to the employer, as a prerequisite for their eff ective participation in the labor market. As noted by Granja 39 such a practice is justifi ed for the selection of candidates, for the guarantee of job security and by controlling the quality of service provided. However, sometimes these personal data are collected and processed in excess, extrapolating the purpose for which they were obtained, and violating rights and off ending the dignity of the worker or candidate for the job. In this scenario, although it is recognized by the employer the need to have access to certain personal information of the employee and the duty to collect them, this does not mean full freedom as to means of doing so. However, while there is no special law in Brazil, ensuring the right to protection of personal and sensitive data of the employee in labor relations, how this right can be protected? Although in the Brazilian legal system does not have an explicit right to the protection of personal and sensitive data of workers, this does not detract from the condition of a fundamental right, because, as warns Ruaro 40 “the fundamental right to protection of personal data in Brazil implies a systematic interpretation of our legal system starting from a basic premise, the dignity of the human person, once that personal data are rights of personality.” Starting from this premise, the dignity of the human person, as provided for in Article 3, item III, of the Federal Constitution of 1988 (CF/1988), is a foundation of the Federative Republic of Brazil that represents a true interpretative and integrative, confi guring general clause for the protection and promotion of the human person.41

38 DONEDA, D. Th e protection of personal data as a fundamental right. Legal Space: Journal of Law, Joaçaba, 2011, v. 12, n. 2, p. 97. 39 GRANJA DE ALMEIDA, T. Th e challenge of protecting the personal data of the worker: the working relationship. 2016, pp. 1-2. Available at: http://direitoeti.com.br/artigos/o-desafi o-da-protecao-a-os-dados- pessoais-do-trabalhador-a-relacao-de-trabalho. 40 RUARO, R. L. Th e tension between the fundamental right to the protection of personal data and the free market. Journal of Advanced Studies and Research of the Th ird Sector. Brasília, 2017, v. 4, n. 1, p. 400. 41 With respect to the principle of the dignity of the human person, Sarlet (SARLET, I. W. Th e eff ectiveness

233 In private relationships, particularly in the employment relation, the employee, when enters in the relationship, carries the condition of human person, a bearer of fundamental rights. And, according to Vecchi,42 these fundamental rights also bind private individuals and can be invoked and applied even in situations where state power is not present.43 It’s called “eff ect of fundamental rights in private relationships,” also known as “horizontal eff ect of fundamental rights”, which, according to Sarlet,44 brings the idea that fundamental rights radiate eff ect also in private relationships and not only constitute rights against the public authorities”. In Brazil, the theory of horizontal eff ect of fundamental rights fi nds constitutional protection in article 5, paragraph 1, of CF/1988 (gives immediate applicability of fundamental rights), in article 1, item III, of CF/1988 (recognizes the dignity of the human person as the foundation of the Federative Republic of Brazil); in articles 5, item XXIII, 170, caput, and 186, all of the CF/1988 (related to the social function of property, contract, the company, and the free initiative), and in article 1, item IV, of CF/1988 (social value of labor). It adds up, still, the normative power of the Constitution, the recognition of the hierarchical level higher than the constitutional norms, the unity of the juridical order and the normative character of fundamental rights. Returning to the teachings of Vecchi 45 about the fundamental rights of workers, the author presents them in two categories: Th e fi rst refers to the “specifi c rights of workers” (example: of social rights in article 7 of the CF/1988), whose implementation is independent of questioning. Th e second would be the general fundamental rights unspecifi c, intended for any human person (example: the right to privacy and private life, the right to freedom of expression, freedom of religion, the right to of due legal process and the right to honor).

of fundamental rights: a general theory of fundamental rights in the constitutional perspective. Porto Alegre: Bookstore of the Lawyer, 2012, p. 95) clarifi es that, in addition to being the unifi er of all fundamental rights, also meets a legitimating function of the recognition of fundamental rights implied, arising out of or provided for in international treaties, revealing, insomuch their intimate relationship with article 5, paragraph 2, of our Fundamental Law. 42 VECCHI, I. D. Th e eff ectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST. Brasília, 2011, v. 77, n. 3, p. 111. 43 As to the point in analysis, Vecchi (VECCHI, I. D. Th e eff ectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST. Brasília, 2011, v. 77, n. 3, p. 113) stresses that “[…] the doctrine and jurisprudence have found that, often, the State is not the “great villain” in the of fundamental rights, but rather, private individuals, especially when equipped with power (economic or social) who present themselves as “enemies” of these rights. Indeed, in the societies and Democratic State of Law with social nature, the State should act as a “friend and protector” of fundamental rights, not least because many of them can only be achieved with the state intervention. Th e fact that private subjects can be eff ective and powerful enemies of fundamental rights gained in importance when the phenomenon of globalisation, under the neo-liberal bias, imposes severe restrictions on state power and increases, in geometric way, the power of large private groups”. 44 SARLET, I. W. Th e eff ectiveness of fundamental rights: a general theory of fundamental rights in the constitutional perspective. Porto Alegre: Bookstore of the Lawyer, 2012, p. 148. 45 VECCHI, I. D. Th e eff ectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST. Brasília, 2011, v. 77, n. 3, p. 119-121.

234 In the employment relationship, given the unequal distribution of economic and social power between the parties, the theory of the horizontal eff ect of fundamental rights gains prominence, being evident the necessity of protection of general fundamental rights in front of the power of the employer. In this way, as previously stated, the employee when entering a working relationship, he does not abandon his condition as a human person. Consequently, even in this kind of relationship, aspects of his personality and his dignity must be respected and protected. Th erefore: It is not enough to receive salary and have guaranteed social rights, but is imperative to be treated with dignity and respect. Now, in a democratic legal system of law founded on the dignity of the human person, what is required is the full protection of the human person, seen the unity and indivisibility of all dimensions of fundamental rights. Th us, the recognition of the eff ectiveness of fundamental rights in the context of the employment relationship has important consequences. One of them is to allow the protection of personal and sensitive data of the employee even though there is no express provision in the legal system. Th is is because, by means of the gradual awareness of the need to protect the rights and constitutional values, as being inherent in the dignity of the human being, are recognized and enforceable within the employment relationship rights linked to privacy, private life, freedom of expression, prohibition of discrimination, freedom of ideology, among others. Following this line, it is concluded that, being the protection of personal and sensitive data a right which derives from the right to privacy and private life, it is necessary to extend such recognition and protection. On the subject, Ingo Wolfgang Sarlet 46 considers that: “[…] Where there is no respect for life and the physical integrity of a human being, where the minimum conditions for a dignifi ed existence are not assured, where the privacy and identity of the individual are subject to undue interference, where their equality in relation to the others is not guaranteed, as well as where there is no limitation of power, there will be no space for the dignity of the human person, and this will be no more than a mere object of arbitrariness and injustice. Th e conception of man-object, as we have seen, is precisely the antithesis of the concept of the dignity of the human person.” It is clear, however, following the example of other fundamental rights, that the right to data protection does not have an absolute character in the employment relationship, which can be limited when in confl ict with other fundamental right or constitutional provision, such as the enterprise organizational faculties (employment power). Th e solution, in this case, passes through the balanced eff ects of fundamental rights in employment relations.

46 SARLET, I. W. Th e eff ectiveness of fundamental rights: a general theory of fundamental rights in the constitutional perspective. Porto Alegre: Bookstore of the Lawyer, 2012, p. 104.

235 Th us, although there is a presumption of broad right to the freedoms of the worker in the context of relations of employment, generating the incidence of fundamental rights unspecifi c in these relationships, such rights may be limited when in confl ict with corporate interests worthy of protection.47 However, even so, any restriction to a fundamental right should comply with the criteria of proportionality 48 (necessity, appropriateness and proportionality in the strict sense of the term) and the preservation of the essential core of fundamental rights.49 Concerned with the assumptions on which these data may suff er some type of limitation by the employer, the Recommendation of the Committee of Ministers of the Council of Europe – Recommendation CM/Rec (2015)5, in item 9.1, brings an important directive regarding the processing of these data, which can serve as a source of interpretation in the judgment of weighting of the concrete case: Th e processing of sensitive data referred to in Article 6 of Convention No. 108 is only permitted in particular cases, where it is indispensable for recruitment to a specifi c job or to fulfi l legal obligations related to the employment contract within the limits laid down by domestic law and in accordance with appropriate safeguards, complementing those set out in Convention No. 108 and in the present recommendation. Appropriate safeguards should be aimed at preventing the risks that the processing of such sensitive data may present to the interests, rights and fundamental freedoms of the employee concerned, notably a risk of discrimination. Having made the remarks about the eff ect of fundamental rights in relations between individuals, as well as about the need of balancing of rights in confl ict in the concrete case, it is worth noting that in working relationship, if the employer adopts an abusive and distorted processing regarding to the processing of personal and sensitive data of the employee, in order to undermine the security of this, making an analogy to the provisions in article 567 of the Code of Civil Procedure,50 the worker can use the injunction to terminate or prevent such threatening practice.

47 In this sense, Vecchi (VECCHI, I. D. Th e eff ectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST. Brasília, 2011, v. 77, n. 3, p. 125) mentions the cases of limitations for security reasons, contractual functions exercised by the employee, as well as those which derive from the power of command for the organization and direction of the productive process. 48 With respect to the principle of proportionality, which constitutes one of the pillars of the Democratic State of Brazilian law, Vecchi (VECCHI, I. D. Labor law: introductory notions, employment relationship and labor contract. Curitiba: Juruá 2016, p. 348) defi nes it “as a parameter, as an existential one for the solution of confl icting cases at the level of values, principles, fundamental rights and other assets and interests constitutionally sheltered.” 49 As to the subject, Vecchi (VECCHI, I. D. Labor law: introductory notions, employment relationship and labor contract. Curitiba: Juruá 2016, p. 233) clarifi es that the essential core of a right is ”what characterises a right as itself and not another”. For example, author reports the case of “a rule authorizing the right of vacation to be broken up thirty times during the year. Th is rule would aff ect the very core of the right, as it would deprive the right of vacation, transforming it into a set of days off , implying the unconstitutionality of the authorizing rule in question.” 50 Art. 567. Th e direct or indirect possessor who has a fair fear of being disturbed in possession may require

236 Finally, as we have seen, it is impossible to deny the impact of new information technologies in the employment relationship. In Brazil, while there is no specifi c protection for personal and sensitive data of the worker, it will be up to the constitutional principles, as well as those which govern the employment relationship, guided by the probity and by the objective good-faith to ensure adequate protection.

6. Final Considerations Despite the growing advancement to technology and means of communication, Brazil is experiencing a policy of a regulatory vacuum in matters of protection of personal data, in so far as it has no rule that deals, though generally, with the protection of such data. Th e situation is even more worrying in the fi eld of labor relations, because in front of the lack of regulations, issues involving the acquisition and the use by the employer information relating to employee are not receiving due attention in the Brazilian labour law doctrine. However, as seen, there is, in the international context, initiatives that propose a set of protective standards for the employment sector, with regard to the limits of the collection and use of information, the obligation of protect of its contents by the employer and the worker’s right to information, with emphasis to the Repertoire of Practical Recommendations on the Protection of Personal Data of Workers, drawn up by the ILO, which can serve as a source for the Brazilian legal system. In addition, although the protection of personal and sensitive data of the worker is not ensured in an explicit way as a fundamental right in the Brazilian legal system, we saw that it is possible to consider it as such, in the light of the constitutional guarantees, in particular, of the dignity of the human person, along with the protection of privacy and privacy life. Finally, having made these considerations, we cannot allow that the absence of a legal framework that deals specifi cally with the protection of personal and sensitive data hampers its articulation in the labor fi eld. Hence the relevance of this research, in order to make progress the discussions on the subject.

the judge to insure him of the imminent embarrassment or embezzlement, by means of a prohibitory injunction where comine defendant determined penalty if transgress the commandment.

237 20 Predatory Eff ects of Corruption on the Market and Civil Society: Some Indicators 1

Rogério Gesta Leal 2

1. Introductory Notes In the present work we intend to tackle the issue of the predatory eff ects of Corruption in the face of democratic institutions, the Market and Civil Society, especially in view of the interconnections that are established between these public and private spheres of relations. Th e idea is that we can show that tackling Corruption today is no longer the exclusive task of the public authorities set up, but of the whole Community and of the Market as well, since they suff er violent impacts in terms of functioning and competitiveness, as well as Individual and Social Fundamental Rights of citizens are directly and indirectly aff ected when there are omissions that feed back the corrupt networks globally and locally.

2. Democracy and Corruption: what are the relationships? Th e relations between Democracy and Corruption are as diverse as stated by Klitgaard,3 behold, these categories alone have multiple meanings. Corruption in particular relies on attributions of meanings from those related to moral issues concerning conduct or individuals considered by ordinary everyday moral perceptions as depraved, perverted or even morally degraded,4 through understandings that relate it to the idea of dishonesty more linked to the improper use of a position of trust occupied for personal benefi t.5

1 Th is work was done in the post-doctoral training period by the University of A Coruña, Spain, with leave of the Court of the Rio Grande do Sul State. 2 Judge of the Court of Justice of the State of Rio Grande do Sul, holder of the Fourth Criminal Chamber, which judges crimes committed by Mayors and Councilors and Crimes against Public Administration. PhD in Law from UFSC and UBA. Professor of UNISC and FMP. 3 KLITGAARD, R.: What can be done? Fighting Corruption. UNESCO Courier, June 1996. Th e author has always been concerned with approaching these issues with the consequences of the betrayal of trust placed in people holding management positions. In his words: the purposes of an organization that placed trust in a dishonest agent are defeated by that dishonesty. KLITGAARD, R.: Controlling Corruption. Berkeley : University of California Press, 1988, p. 47. 4 Quite in-depth perspective by NOONAN, J. T. Jr.: Bribes: Th e Intellectual History of a Moral Idea. Berkeley: University of California Press, 1984. See also UNDERKUFFLER, L. S.: Captured by Evil: Th e Idea of Corruption in Law. In http://projects.iq.harvard.edu/gov2126/fi les/underkuffl er.pdf, accessed on 02/02/2017. 5 See the excellent text of the Professor of Law and Legal History, from the prestigious Yale University, LANGBEIN, J. H.: Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest? In https:// www.law.yale.edu/system/files/documents/pdf/Faculty/Langbein_Questioning_the_Trust.pdf,

238 An important segment of the international literature has pointed out that corruption in general is associated with political regimes with low levels of freedom and institutional openness, which have serious problems related to insuffi cient levels of human development and interpersonal trust in public institutions of government.6 Certainly in Latin America, these scenarios have been radicalized at least in the governments of: (i) Salinas de Gortari, in Mexico; (ii) Fernando Collor de Mello, in Brazil; (iii) Carlos Menem, in Argentina; (iv) Carlos Andres Perez, in Venezuela; (v) Alberto Fujimori, in Peru; (vi) Augusto Pinochet, in Chile, among others, since the reports of corruption in these historical periods were very present.7 But it is not only in Latin America that this happens – escaping, therefore, from the biased argument that corruption aff ects only countries not so developed as those of the so-called First World: Th e systematic exploitation of public offi ces is not only found in rapacious elites in some countries of the Commonwealth of Independent States, India or Bangladesh. It is also found in countries like Japan, and in Western Europe and North America, where vested interests take advantage of public generosity, but work in more sophisticated ways that conceal their greed. Corrupt people are found not only in South Korea and Italy, but also in the highest positions in other countries. At one time even in the prestigious Scotland Yard of the United Kingdom, in the secret services of Germany, France and Israel, in the Swiss banking and even among the credulous royalty of constitutional monarchies who enjoy access to real power, the true infl uence and the true leaders.8 If in these historical periods these governments had solid, reliable, competitive oppositions and assumed their missions of eff ective alternatives of government, they could frighten the coalitions that made possible such corruptive activities inside and through the public managers of that time, which did not necessarily occur. Th at is, political reforms that seek to broaden the social and institutional control of democracy and its institutions are always vital to the fi ght against corruption.9

accessed on 02/02/2017. In the same direction see FROST’s, T. G.: Th e Rights of Trustees to Derive Indirect Profi ts from the Handling of Trust Funds. In The Virginia Law Register, New Series, Vol. 6, No. 9 ( Jan., 1921), pp. 641-650. Virginia: Virginia Law Review Stable – URL: http://www.jstor.org/ stable/1106094, accessed 7/02/2017. 6 According to the works of: (i) TANZI, V.: Corruption, Government Activities, and Markets. In: http://projects. iq.harvard.edu/gov2126/fi les/tanzi_1995.pdf, accessed 3/13/2017 and (ii) MORRIS, S. D.: Corruption and the Mexican Political System: Continuity and Change. In Th ird World Quarterly, 20 (3), pp. 623-643; (iii) KAUFMANN, D.: Corruption Diagnostics: A New Technocratic Framework for the Analysis of Corruption and its Implications for the Design of Action Program. In Miami Anti-Corruption Summit, Florida, April 3-4, 1998. 7 Cf. COMBELLAS, R.: Th e democratization of democracy. Th e fact is that, beyond the type of regime, corruption is more likely to arise in scenarios with presidents whose mandate is far from the logic of the responsible party government and tend to discretionary power management. In addition, there are few levels of eff ective opposition, under social control and low levels of freedom of the press. 8 CARBAJO CASCÓN, F.: Public corruption, private corruption and patrimonial private law: an instrumental relationship.Perverse use, prevention and repression. In GARCIA, Rodríguez N. and CAPARRÓS, F. EA (coord.).: Corruption in a Globalized World: Interdisciplinary Analysis. Salamanca, Ratio legis, 2004, p. 68. 9 In other words, political party systems historically based on clientelistic networks are more likely to

239 Th ere is no doubt that when someone who is in a position of power and confi dence, and who understands perfectly that he can act on behalf of himself or on behalf of the interest of a third party in exchange for receiving benefi ts, and so does, is surely betraying the trust institutionally and legally 10 – in the private or public sector –, characterizing both misuse of power/abuse of authority or even criminal, civil, administrative or other. Th e victims of this betrayal, after all and in the fi rst place, are all those who have given the individual traitor the right to act in his name and for his confi dence. Secondly, Democracy itself is aff ected by acts of corruption, notably in the representative model, since the represented ones also begin to have restrictions of confi dence in their representatives. Th ird, the economic market in general also suff ers from corruption, since, as the Organization for Economic Co-operation and Development (OECD) states, since 1997, when it adopts the Convention to Combat Corruption of Public Offi cials in International Economic Transactions, already warned against the fact that such practices led to international economic relations, involving serious moral and political problems, undermines good governance and economic development, and distorts international competitive conditions.11 Th erefore, we can affi rm that corruption can create situations of inconsistency in the relations between Public Administrations and the Market, and also causes damage to the private economy in the face of the fact that innovation processes fostered by corporate competition are directly aff ected by certain corrupt acts – piracy, industrial espionage; illicit payments become tempting attempts to replace low prices and innovations in products.12 But we must not forget that this market is also often an active protagonist of the corruptive scenarios that are constituted and that such responsibility can not be

use corruption for the sake of personal enrichment or private groups. See, in this sense, the texts of: (i) MAIZ, R.: Jama, cove and camel: corruption as a mechanism for self-reinforcement of political clientelism. In Mexican Journal of Sociology, V. 65 (1), pp. 3-39; (ii) ALBERTAZZI, J. M. C.: Political clientelism: a review of the concept and its uses. In Yearbook of Central American Studies, University of Costa Rica, V. 40: 311-338, 2014. In Brazil, see the excellent text of BAHIA, L. H. N.: Th e power of clientelism: roots and foundations of political exchange. Rio de Janeiro: Renovar, 2003. 10 See EISENSTADT’s, A. S.: Political Corruption in American History. In EISENSTADT, A. S., HOOGENBOOM, A. and TREFOUSSE, H. L.: Before Watergate: Problems of Corruption in American Society. Th e New England Quarterly, Vol. 53, no. 1 (Mar., 1980), p. 114, when he says that: Political corruption means that a public offi cial has perverted the offi ce to his care, that he has broken a public trust for private gain. 11 Convention on Combating Bribery of Foreign Public Offi cials in International Business Transactions, Nov. 21, 1997, 37 ILM 1, art. I Access at http://www.oecd.org/corruption/oecdantibriberyconvention.htm, 2/27/2017. 12 Henning recalls that the term corruption has had various meanings and meanings ever since, describing from blatant acts of bribery to the use of political power to advance some agendas of interests more private than public.In this sense, the author gives a very interesting example: Individual offi cials can abuse their authority in an almost limitless number of ways. For example, the expansion of the internet and electronic mail means that a government employee can easily conduct personal business during work hours, often with little threat of being detected or disciplined. In HENNING, P. J.: Public corruption: a comparative analysis of international corruption conventions and united states law. In http://arizonajournal.org/wp-content/ uploads/2015/11/HenningArticle.pdf, accessed 20/02/2017, p.796. See also the text by MESSINA, G.: Stato economico d’eccezione e theory of governance: ovvero la ne della politica. In Journal of Political Studies. Belo Horizonte, n. 107, pp. 99-148, jul./dez. 2013.

240 exclusively on the back of the state and its administrative bodies such responsibility, as pointed out by authors such as Rose-Akerman.13 Mauro Paolo goes so far as to say that when state bureaucracies delay decisions that are of interest to the market, private actors are often obliged to grant illegal incentives to speed up the procedures for their demands14 which we have witnessed recently in Brazil in the Lava airliner scandal, involving corruption at Petrobrás, an opportunity in which Mercado and Estado are gathering eff orts to bleed public budgets.15 Now, attention: this can not lead us to the mistaken idea that, in such scenarios, the State is the architect of all the machinery of corruption and the Market is the victim as much as the Society. On the contrary, Market and State – at least some sectors of these corporations – are usually associated in criminal actions of this nature. It is so sophisticated and perverse the corruptive relations between Market and State that in Brazil, companies come to structure specifi c sectors responsible for the feedback of benefi t schemes and payments of tips to public and political agents of the State, as in the case of the Petrobrás scandal mentioned. Th e newspaper Folha de São Paulo, in the edition dated 03/22/2016, reported that: Based on spreadsheets and data cross-checking, researchers at Lava a Jato say that Odebrecht has set up a “professional structure” for systematic tip payments in Brazil and abroad. Only two accounts linked to this parallel set are estimated at R $ 91 million in payments suspected of being illegal. Th e “structured system” of corruption, in the words of prosecutor Carlos Fernando dos Santos Lima, involved offi cials with clear division of duties, a computerized system to control the entry and exit of millions of Reais and a whole clandestine accounting structure … According to the investigators, the structure even included a specifi c area in the contractor, called the “Structured Operations Sector”, which operated in illegal practices.16 It is worth remembering Giannetti on the point, when he asserts (without fully agreeing with this) that even philosophy has already been concerned with sustaining that economic development somehow promotes some moral regression in social and

13 Th e author has insisted on the World Bank’s thesis that the state must recycle and take all measures against corruption, forgetting to evaluate the role of the market in corrupt relations. He tells the author that: a symptom that something has not worked well in the management of the State … Th e institutions designed to govern the interrelationship between citizens and the State are used, instead, for personal enrichment and to provide benefi ts to the corrupt. ROSE-ACKERMAN, S.: Corruption and governments: Causes, consequences and reform. Madrid: Siglo Veinteuno, 2001, p.11. 14 PAOLO, M.: Corruption and Growth. In Quarterly Journal of Economics, v. 110, pp. 681-712. 15 Th e magazine Carta Capital reported on 11/21/2014 that: On Monday 17, Erton Medeiros Fonseca, CEO of Industrial Engineering of Galvão Engenharia, said he agreed to pay bribe after being threatened.According to Fonseca, Paulo Roberto Costa, former director of Petrobras Supply, and doleiro Alberto Youssef stated that if the construction company did not pay a bribe (that would be directed to the PP, party for which they were acting), it could be punished with suspension of payments for works already closed. In https://www.cartacapital.com. br/politica/lava-jato-as-empreiteiras-sao-vitimas-3407.html, access on 03/06/2017. 16 In http://www1.folha.uol.com.br/poder/2016/03/1752707-odebrecht-tinha-department-of-property-no-pais- diz-lava-jato.shtml, access in 03/03/2017.

241 institutional relations, rescuing lessons from Lucretius, in his book De Rerum Natura, quoting him: If among the primitive was the famine that brought death, now, on the contrary, it is the abundance that destroys us.In those days, men often took venom out of ignorance. Now, better educated, they poison each other.17 We use Lucretius’s arguments only to exalt the complexity of these relations – in fact, as Giannetti does – and not professing the determinist-cultural perspectives of some analysts of the subject 18 in the sense that there existed countries which by their traditions and historical experiences would be more susceptible to corruption than others; we have argued that corruption is a multifaceted phenomenon that has the most diverse causes and determinants, all complementary to one another.19 In any case, criminal laws, for example, are not the only or most important legal tools to combat corruption, and most contemporary states – as well as private sector companies – have adopted corporate ethics policies and more specifi c regulations to deal with corruption, thereby restricting the possibilities of abuse or improper infl uence of or under public authorities. In fact, as Philip B. Heymann cautions, corruption is not only a problem of governments, but also a private sector, which is secretly receiving private benefi ts to a decisionthat is supposed to be made in the interests of others. In this sense, a buying agent for a corporation may also be corrupt by demanding kickbacks to infl uence his purchasing decisions.20 In other

17 GIANNETTI, E.: Private Vices, Public Benefi ts? Ethics in the wealth of nations. São Paulo: Companhia das Letras, 2007, p.31. Th e author adds that: Th e root of the problem, in the Epicurean view, is that the growth of wealth, the organization of political life in the State and the use of money have transformed the character of men, that is, they have left us with the blue fl y of an ambition without limits.Th ese discussions will permeate the refl ection of a signifi cant part of modern political philosophy, as in Rousseau, Locke, Hobbes, Machiavelli. We deal with this in the book LEAL, R. G.: Th eory of the State: citizenship and political power in modernity. Porto Alegre: Bookstore of the Lawyer, 2002. 18 As in the works of: (i) HARRISON, L. E.; HUNTINGTON, S.: Culture Matters: How Values Shape Human Progress. Nueva York: Basic Books, 2000 (can be accessed at: https://ia800505.us.archive. org/19/items/CultureMattersHowValuesShapeHumanProgress/Culture%20Matters%20How%20 Values%20Shape%20Human%20Progress.pdf); (ii) TREISMAN, D.: Th e Causes of Corruption: A Cross-National Study. In Journal of Public Economics, 76 (3), pp. 399-457, 2000, accessed through the site: https://www.amherst.edu/media/view/131389/original/Treisman2000.pdf, on 03/03/2017. Th e authors LIPSET, S. M. and SALMAN, G.: Corruption, Culture, and Markets. In HARRISON, L. E.; HUNTINGTON, S. Culture Matters: How Values Shape Human Progress. Op. Cit., Even claim that countries with a predominantly Protestant population would be less prone to corruption, diff erent from countries with a larger Catholic population, where relationships of personal friendship and loyalty would weigh more for purposes of corruptive acts. 19 See our LEAL, R. G.: Corruptive Pathologies in the relations between State, Public Administration and Society. Santa Cruz do Sul: Edunisc, 2013. See also the enlargement of the concept of corruption given by the text of NYE, Joseph Samuel. Corruption and Political Development: A Cost-Benefi t Analysis. In Th e American Political Science Review, Vol. 61, no. 2 (Jun., 1967), p. 419: Corruption is behavior which deviates from the formal duties of a public role because of private-relation (personal, close family, private clique) pecuniary or status gains; or violates rules against the exercise of certain types of private-eff ect. Th is includes such behavior as bribery (use of a reward to pervert the judgment of a person in a position of trust); nepotism (bestowal of patronage by reason of ascriptive relationship rather than merit); and misappropriation (illegal appropriation of public resources for private-use). 20 HEYMANN, P. B.: Democracy and Corruption. In Fordham International Law Journal. Volume 20, Issue 2, 1997, p.325. Th e author also warns that: Corruption is certainly not a problem solely of democracies.

242 words, corruption is a true multifaceted and tentacular phenomenon, expanded to several scenarios – public and private – involving diff erent protagonists, which demands for their coping with varied strategies and actions.21 It is no coincidence that since 1997, important initiatives have been taken to tackle corruption, improving the European Union – judicial cooperation in criminal matters between the European Union and the European Union (not to mention that the phenomenon of corruption occurs only in underdeveloped countries). Member States.22 It is obvious that corruption – even if it is a multifaceted phenomenon – can not be reduced to receiving bribes in order to obtain illicit benefi ts, since we have shown on another occasion that it is much broader and more comprehensive than this (reaching civilian dimensions, moral, ethical and administrative aspects of both public and private initiative)23 but also the criminal aspects of corruption can not be reduced to the traditional types of most traditional Criminal Codes of the twentieth century, dealing with passive and active corruption, among others, and – as has been the case – new types of crime in the Society of Risks (traffi cking in narcotics, arms, people, human organs, cyber-crimes, money laundering, etc.).24 Of course, there are also situations where corruption occurs without apparent victims immediately to the public – and even to the control bodies. Th e hallmarks of corruption are, on the one hand, stealth and obfuscation between parties who cooperate ostensibly for corruptive acts; on the other hand, the criminal prosecution of cases that may be hindered by the involvement of the corrupt who have a good formal and apparent reputation, as well as important positions of power and social. Th ese elements can have disastrous consequences not only in present but future investigations, since, often, corruption at certain advanced levels is fed back into

Some of the worst corruption has taken place under highly undemocratic governments including the Communist Governments of the Soviet Union and the People’s Republic of China and the authoritarian governments of regimes such as those in Zaire and Nigeria. See the excellent text of NICHOLS, P. M.: Th e neo-mercantilist fallacy and the contextual reality of the foreign corrupt practices act. In Harvard Journal on Legislation, V. 53. Boston: Harvard Law University, 2014. 21 We disagree, therefore, with those analyzes that focus too much on a concept of corruption involving exclusively public servants (as sometimes wants agencies like Transparency International, and authors like LAPALOMBARA, J.: Structural and Institutional Aspects of Corruptio. In Social Research Review, 61 (2), pp. 325-351, 1994. 22 See in particular the Council Act No 97 / C 195/01, 1997 OJ 195, 2-11, http://eur-lex.europa.eu/ legal-content/, accessed 27/02/2017. It should be noted that in the 1999 Criminal Law Convention on Corruption, the EU convened Member States to implement common criminal policies for the protection of the Society against corruption; but already in 1998 the Council of the EU created the Group of States against Corruption – GRECO, which has also carried out important activities in this area. 23 As reminds us ABBINK, Klaus: Staff Rotation as an Anticorruption Policy: An Experimental Study. European Journal of Political Economy 20 (40), 2004, p. 892: Indeed, the defi nitions of corruption often combine notions of ethical conduct and fair governance with crimes like bribery, extortion and infl uence- peddling. See also our text LEAL, R. G.: Corruptive Pathologies in the relations between State, Public Administration and Society. Op. cit. 24 As says ALLUM, F.; SEIBERT, R.: Organized crime: a threat to democracy. In ALLUM, F. and SIEBERT, R. (eds.): Organized crime and the challenge to democracy. London: Routledge, 2003, p. 87: Th ere is no question that bribery is the quintessential form of public corruption, but the issue is how far the criminal law can be extended to other instances of misuse of offi cial authority for personal gain.

243 national and international networks of cooperation, being present in many fronts of combat (Executive Branch, Legislative Branch, Judiciary, Market), which is why it has proved to be one of the most diffi cult illicit acts to establish and hold accountable with total success. Th us, inaccuracies about what constitutes and exhaustively characterize corruptive acts arise in part from the rhetorical potential that the expression presents in its history of political, philosophical and legal treatment. Politicians of all segments and parties, over time, have invoked the specter of corruption to denigrate opponents, bringing to the collation subliminal motives for decisions which they sometimes oppose, only to promote / facilitate their personal political interests.25 It is obvious that we also have in these scenarios arguments in the sense that corruption is sometimes used to achieve consensuses or adhesions to projects that, after all, will benefi t important public interests, as if this were possible considering the form illicit and the direct and indirect damages that this action can cause not only to social demands, but to Democracy itself and its institutions. What is important is that the defi nition of what is corruption remains an unfi nished project, the one because material and formally the creativity to expand the tentacles of corruption seems to be endless; to two, because public pressure fueled by institutional and social control systems, coupled with the role of the media, has shown that the mission to combat corruption is permanent. It is interesting how Miguel Schloss, Executive Director of Transparency International, presents various forms of corruption beyond those traditionally seen by criminal laws, namely: In this regard, it should be understood that bribery encompasses payoff s for a wide variety of illicit activities: (i) getting around licenses, permits, and signatures; (ii) acquiring monopolistic power through entry barriers to competitors; (iii) access to public goods, including legal or uneconomic awards of public procurement contracts; (iv) access to the use of public physical assets or their outright stripping and appropriation; (v) access to preferential fi nancial assets, such as credit; (vi) illegal trade in goods banned for security and health considerations, such as drugs and nuclear materials; (vii) illicit fi nancial transactions, such as money laundering and insider trading; (viii) infl uencing administrative or legislative actions; and (ix) infl uencing judicial decisions. In all these cases, corruption occurs when economic opportunities for it prevail and political will to combat it is lacking. In a way, corruption is a symptom of fundamental economic and

25 It is curious that in US political history the impasse after the 1824 presidential election was solved by what opponents called a corrupt bargain, which resulted in the election of President John Quincy Adams over Andrew Jackso, the winner by vote popular, a situation that occurred due to the particularities of the system of suff rage for the President of the Republic in this country. See the text of CHOI, Eunjung; WOO, Jongseok. Political Corruption, Economic Performance, and Electoral Outcomes: A Cross- National Analysis. In Contemporary Politics Review 16 (3): 249-262, 2010, accessed by the site: http:// www.tandfonline.com/toc/ccpo20/current, 03/20/2017. See also the text by KRUMAN, M. W.: Th e Second American Party System and the Transformation of Revolutionary Republicanism. In Journal of the Early Republic. Vol. 12, No. 4 (Winter, 1992), p. 509-537, published by the University of Pennsylvania Press, accessed through the site: https://www.jstor.org/stable/3123876?seq=1#page_scan_tab_contents.

244 political problems. Addressing these problems eff ectively requires dealing with the underlying economic, political, and institutional causes.26 Th e truth is that since the second half of the twentieth century, at least in the West, there have been several studies analyzing these elements all aimed at giving greater uniformity of treatment to the matter, from research involving methodologies for gauging data on corruption in the face of multiple empirical variables such as time lag, geographical, political, economic, ideological and institutional demarcation of the spaces and protagonists involved in the research;27 to public opinion polls on the impact of corruption on democratic regimes and institutions, especially regarding the breach of confi dence brought about by such behavior. As Gerald Caiden tells us : When citizens of a democracy feel that they have taken advantage of them, that they are not being treated in a decent and equitable manner and that injustices are not being corrected or compensated, then their confi dence in institutions and in the leaders accused of perpetrating such discrimination, since they know that if corrective measures are not taken, the situation will prevail and worsen. Th e feeling that you do what you do will not change anything (impotence or helplessness in looking for corrective measures) is what crumbles your confi dence in yourself and in democracy.28 While the executive and legislative powers – notably in the West – are still timid in regulating and dealing with the matter, the Judiciary has broadened the levels of eff ectiveness of the standards that have been achieved up to now to combat corruption, some of them in special situations. In the USA, for example, there are records that judicial interpretation expanded the Mail Fraud statute and the Hobbs Act to reach offi cial misconduct even though the Congress did not adopt the provisions expressly to address corruption.29 At times, however, judicial interpretations of the statutes used in cases of corruption leave the scope of the law unclear because the provisions are considered in isolation, without reference to any comprehensive (including international) statutory structure to combat public corruption.

26 SCHLOSS, M.: Luncheon Address. In Cornell International Law Journal: Vol. 33: Iss. 3, Article 2, 2000, p. 471. Accessed through http://scholarship.law.cornell.edu/cilj/vol33/iss3/2, 2/27/2017. 27 In this sense see the works of: (i) GOLDSMITH, A.: Slapping the Grasping Hand: Correlates of Political Corruption Emerging Markets. In American Journal of Economics and Sociology, 58 (4), pp. 865-88, 1999; (ii) SANDHOLTZ, W. and KOETZLE, W.: Accounting for Corruption: Economics Structure, Democracy, and Trade. In International Studies Quarterly, 44 (1), pp. 31-50, 2000; and (iii) TREISMAN, D. Th e Causes of Corruption: A Cross-National Study. In Journal of Public Economics, 76 (3), pp. 399-457, 2000. See also studies conducted by the Latin American Public Opinion Project – LAPOP, at http://www. vanderbilt.edu/lapop/, accessed 2/27/2017. 28 CAIDEN, G. E.: Democracy and Corruption. In CLAD Magazine Reform and Democracy. No. 8 (May 1997). Caracas, p. At this point also see the works of: (i) COLAZINGARI, S. and ROSE- ACKERMAN, S.: Corruption in a Paternalistic Democracy: Lessons from Italy for Latin America. In Political Science Quarterly, 113 (3), pp. 447-470, 1998; (ii) SELIGSON, M.: Th e Impact of Corruption on Regime Legitimacy: A Comparative Study of Four Latin American Countries. In Journal of Politics, 64 (2), pp. 408-433, 2002. 29 In Global Forum on Fighting Corruption: Safeguarding Integrity Among Justice and Security Offi cials, Feb. 23-25, 1999, at http://usinfo.state.gov/topical/econ/integrity/documents/gore.html, access 06/03/2017.

245 Th e US e-mail fraud legislation is a good example of state policymaking to achieve both public and private sector conduct, employees and corporate directors who are not necessarily involved in the corrupt bribery, but are aimed at other long-term intentions (such as the exchange of favors).30 It is very curious the warning, on this point, that makes Peter Henning: None of the Conventions address gratuities given to offi cials that are designed to seek future benefi ts unrelated to a specifi c exercise of authority, the form of corruption that involves infl uence buying.A related issue not addressed in the Conventions is the topic of political campaign contributions, and how corruption law should treat these payments that are designed to infl uence the exercise of offi cial authority … While bribery is the most commonly identifi ed form of public corruption, the off er and receipt of a gratuity is also a criminal off ense that raises a diffi cult interpretive issue regarding the distinction between a bribe and a gift, and what types of gifts should rise to the level of a violation of the criminal law.31 On the other hand, there is a paradox hitherto insurmountable on these themes, as David Hess and Th omas W. Dunfee recalls, namely: Scholars studying the corruption phenomenon have noted a unique paradox: corruption is universally disapproved yet universally prevalent.32 How can this be? What correlation of forces and phenomena causes this paradox to occur? Th is also applies to one of the most common kinds of corruption that is bribery; because there is an absolutely negative outlook with regard to it, but nonetheless several Western countries are still reluctant to create effi cient mechanisms to deal with it.33 Th at is what we come to face.

30 Th is legislation establishes that there are two elements that characterize fraud by electronic mail: (i) post offi ces that have conceived or tried to conceal fraudulent schemes; (ii) the use of e-mail for the purpose of execution, or attempted execution of fraud. 31 HENNING, P. J.: Public corruption: a comparative analysis of international corruption conventions and united states law. Op. cit., p. 800. See the already classic text by NOONAN Jr., J. T.: Bribes: Th e Intellectual History of a Moral Idea. Berkeley: University of California Press, 1984, p.23, noting that: Th e core of the concept of a bribe is an inducement improperly infl uencing the performance of a public function meant to be gratuitously exercised. 32 HESS, David; DUNFEE, T. W.: Fighting Corruption: a principled approach. In: Cornell International Law Review, No. 593, 595, 2000, p.33. See also the excellent text of KOFELE-KALE, N.: Th e Right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Offi cial Corruption to a Crime under International Law. In Th e International Lawyer. Vol. 34, No. 1 (SPRING 2000), pp. 149-178. Published by American Bar Association, http://www.jstor.org/stable/40707514, accessed 2/27/2017. 33 AHLIN, C. R.; PINAKI, B.: Bribery, Ineffi ciency, and Bureaucratic Delay. In Journal of Development Economics. V. 84 (1). New York: Elsevier, 2007, pp. 465-486. See also the excellent text by SALBU, S. R.: Extraterritorial Restriction of Bribery: A Premature Evocation of the Normative Global Village. In Yale Journal of International Law, V. 24, 1999, accessed at http://digitalcommons.law.yale.edu/cgi/viewcontent. cgi?article=1100&context=yjil, 02/20/2017. In this article, the author argues, with good arguments, that there are deep diffi culties to accept certain corruptive practices as new forms of economic and political imperialisms.

246 3. Fragility of Democracy and Strengthening of Corruption: some final considerations. Certainly, the historical form of constitution and use of the public sphere of politics has contributed much to the phenomenon of corruption – as we have seen so far – and this fundamentally in the face of a vicious perspective of the traditional political culture that conceives political life and public offi ces as business opportunities to enrich and reward friends and accomplices, taking advantage of the confi dence placed in them by voting for, or blatantly committing corruption, or using illicit and sophisticated legal instruments (such as public procurement, public tenders, public policies) to commit the most varied forms of corruption that are diffi cult to measure. Th ese diff erent forms of corruptive practices – and their always predatory eff ects – mean that we also have diff erent methods and procedures for dealing with them, distributed among Society, State and Market, because all of them are co-responsible for it. Th e problem is that corruption is contagious! It extends from the sphere of public life, as we have seen, even to private life (as is the case of the famous Gérson law so used in Brazilian reality).34 In private life, for example, we have the news that the foreign tourist in some parts of Brazil, as in Rio de Janeiro, has to spend 46% more than the carioca of the yolk to access the same products on the beach, and verify the testimony of a Brazilian reporter who, pretending to be a foreigner, asked a street vendor how much it cost to rent an umbrella and a chair, in which he followed the answer: Barraca at $ 15 and chair for $ 10 ! Five minutes later, the same reporter went to the same tent and asked how much it cost to rent a chair and an umbrella, having the same seller said: $ 10 the umbrella and $ 7 a chair! When negotiating the price, saying that he would consume in the tent, he got the fi nal price of R $ 15!35 And so, with its capacity for seduction, corruption promises and realizes undeserved or lawful rewards. And worse, as Girling warns us, if we let it go, it will extend, multiply, intensify, systematize, and eventually become institutionalized, becoming the rule rather than the exception.36 And when we get to that point, there is no doubt that corruption constitutes a threat to Civil Society itself, because it operates the transfi guration of representative institutions, which are left behind by illicit (and opaque) spaces of political articulation and binding public deliberation (through laws, administrative acts, public policies, judicial decisions, market manipulation).

34 In 1976, Brazil’s three-time world football champion Gérson starred in a cigarette commercial stating that: Why pay more if the Village gives me everything I want from a good cigarette? I like to take advantage of everything, right? Take advantage you too, take Vila Rica! From then on any unethical or unethical behavior in private or public relations came to be known as Gérson’s Law. In another direction, addressing more technical issues related to public management, see the work of MENDONÇA. E. B. F. de.: Th e constitutionalization of public fi nances in Brazil: due budget process and democracy. Rio de Janeiro: Renovar, 2010. 35 See the article on the site: https://espacoacademico.wordpress.com/2014/02/24/a-lei-de-gerson-revisitada/, access on 03/20/2017. 36 GIRLING, J.: Corruption, capitalism and democracy. London / New York: Routledge, 1997, p. 87. See also the excellent text organized by GIRALDO, César (Org.). Rescue of the Public: Financial Power and Social Rights. Bogotá: Ediciones from Abajo, Colombian Academy of Economic Sciences and Cesde, 2003.

247 Here, uncertainty takes the place of order; the actions of the public arenas instituted – and their results – contradict the intentions revealed by the original social pacts (and conveyed by the Constitution, infra-constitutional ordinances, budgetary laws, daily public management). State, to the point where it no longer recognizes it as the legitimate representative of its demands, caring little for what happens in terms of its offi cial actions. For a long time the reaction of citizenship in the face of corruption – especially in Brazil – was of indiff erence, and not only of it, is that the public forces of repression of the State were also aff ected by discouragement related to the diffi culties of fi nding corrupt acts, not only because they were very stealthy and protected by a large number of powerful stakeholders, but also because of the lack of up-to-date legal and administrative tools that could be more eff ective in dealing with these issues.37 As Caiden recalls: Although it is done by the public interest and not by ill will, it was always considered degrading to denounce corruption and the complainants were victimized and attacked, which in fact still happens. Th ere was very little reliable information outside the media, which were also careful not to off end established authorities that might deprive them of their access to offi cial sources of information; in addition, they could be prosecuted for violating laws that had been expressly promulgated to protect institutions and public leaders from any criticism.38 Even in academic and more scientifi c terms, it is important to note that the International Political Science Association formed a special committee on research on political corruption, launching in 1986 a periodical devoted specifi cally to the subject, which later became part of the prestigious Crime Magazine, Law and Social Change, where classic texts on corruption were published in the late 1980s, such as Heidenheimer (1989), Klitgaard (1988) and Noonan (1984).39 Th at is, even from the perspective of refl ective maturation of these questions, we can verify that very recently, more systematic studies related to them have surfaced in a more systematic way.

4. Conclusion All this literature has shown us, for example, that the illegal manipulation of international fi nancial markets imposes varying types of vulnerabilities on weaker national economies, and their representative public institutions. Delinquent organizations and off enders

37 See the text of SANTIN, J. R.: State, Civil Society and Legitimation of Power. In Journal of Political Studies. Belo Horizonte, n. 111, pp. 247-274, jul./dez. 2015. 38 CAIDEN, G. E.: Democracy and Corruption. Op. cit., p. 5. Remember the author: Th e President of the Institutes of International Media Partners Inc. caused a stir by dedicating the September / October 1991 issue of his magazine, CEO / International Strategies to Corruption. Th e editorial stated: “Shady businesses and those who take advantage of them are more common than free market worship and seem to rule the world. Are there exceptions? Maybe. But the rules are made to break them. Look around … or read this number “ (p. 9). 39 HEIDENHEIMER, A. J.: Political Corruption. New Brunswick, NJ: Transaction Books, 1989; KLIT- GAARD, R.: Controlling Corruption. Berkeley, CA: Th e University of California Press, 1988 and NOONAN Jr., J. T.: Bribes. New York: Macmillan, 1984. See also Crime, Law and Social Change magazine website: https://link.springer.com/journal/10611/67/2/page/1.

248 control signifi cant parts of fi nancial assets around the world, using their power and wealth to bribe governments, banking systems, legitimate business; in addition to subtracting resources needed for public investment, social assistance, and hampering public policy and management as a whole. Th ese same assets, in sophisticated vicious circles, derive from so many other crimes of a very violent nature, namely: terrorism, robbery of cultural goods, traffi cking of women and children to sexual slavery, extraction of human organs, extortion, trade in the market weapons and nuclear materials, drug traffi cking, cyber-crimes, illegal lotteries, fake crimes, etc. In the Brazilian case we have, among many problems, what it says with the subject of the manipulation of the public budget, since, even knowing that it is gestated under each state power structure, preceded by a legislative process that creates it, public expenditures, it is nowadays the target of extremely sophisticated corrupt maneuvers, with the exception of tied expenditures (application of a minimum percentage of health and education revenues), the process of little controlled. In Brazil we had the famous case of Mensalão, where parliamentarians received a monthly allowance in exchange for political support for the government‘s interests, directly aff ecting the formatting of the headings and parliamentary amendments negotiated with the Executive Branch in exchange for the support of parties for their initiatives, involving, for example, the introduction of excessively general budget allocations, such as the structuring of the basic health care system, transferring the defi nition of the respective measures and regions benefi ted to the implementation of the budget. Just to register, on June 6, 2005, the newspaper Folha de São Paulo published an interview with the then federal deputy Roberto Jeff erson (PTB-RJ) in which he revealed the existence of a scheme of payment of bribes to parliamentarians of the base allied with the then fi rst Lula government in exchange for political support.In March 2006, the Attorney General‘s Offi ce fi led a complaint with the Federal Supreme Court against 40 people suspected of involvement in the scheme. Of the 40 initially charged, only 37 were on trial. In October 2012, the STF closed the trial and sentenced 25 of the 37 defendants. It occurs that, in budget execution, the relations of political power of coalition between Executive and Legislative also occurred, some, in highly corruptive bases, since, in many opportunities, the Executive allowed parliamentarians to choose the destiny to be given to the resources contemplated in its amendments, allowing even direct access to the government‘s computerized system. Th at is, some parliamentarians, with the password that allowed them to access the national budget system, attended to their electoral niches, sometimes requiring potential benefi ciaries to contract companies that they indicated to the execution of the demands, exactly to share with them the overpriced public resources in each business. Th is was one of the maneuvers that characterized another corruption scandal in Brazil called the Legholder Mafi a. Th is operation was triggered by the Federal Police in May 2006, called Operation Leech, and arrested public advisors and civil servants accused of using R $ 110 million of the Budget in the purchase of overpriced ambulances, since the main company involved in the scheme, Planam, superfaturava the price of ambulances by up to 110%, often delivering defective vehicles or without all equipment. It was identifi ed

249 that more than 90 parliamentarians were involved in the scheme. Th e scheme advanced the payment of the bribe to the parliamentarians, who presented amendments to the Budget for the purchase of ambulances by prefectures, and the fi rst step of the gang was to contact mayors, assisted by federal parliamentarians, to direct the bids in favor of Planam and other companies involved in the scheme. But this is not only the case, given that the constitution of the budget, as a procedure of competence of each State Power, through the legislative route, concerns the autonomy of the Powers, and this argument has generated a culture of lack of preventive and curative control of its formatting, situations have arisen in which corrupt political alliances and political articulations are instituted to put into the budgets fi ctitious public demands that, when approved and later, will generate bids and administrative contracts for the expenses indicated by the fi ctitious budget lines approved, but now the apparent legal form of the legislative authorization granted. How is Democracy going to survive all this but counting on the most eff ective participation of Civil Society, the State and the Market in the fi ght against Corruption ?! Th e protagonism of these initiatives, however, and in certain contexts of identity crisis of the Executive and Legislative Powers, provisionally and with caution to the restoration of public order, rests on the shoulders of the Judiciary, which should have more and more sensitivity to evaluate the limits of its interventions, failing to further collapse the fragile political representation of our country.

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268

BUSINESS AND HUMAN RIGHTS

Pavel Šturma Vinícius Almada Mozetic (eds.) et al.

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