Business-And-Human-Rights
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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”. Bibliografi sche Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografi e; detaillierte bibliografi sche Daten sind im Internet über http://dnb.dnb.de abrufbar. Bibliographic information published by the Deutsche Nationalbibliothek Th e Deutsche Nationalbibliothek lists this publication in the Deutsche National- bibliografi e; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2018 rw&w Science & New Media Passau-Berlin-Prague, an international publishing project of SüdOst Service GmbH, Am Steinfeld 4, 94065 Waldkirchen, Bayern/Germany Cover & Layout © 2018 Eva Rozkotová Publishers All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the copyright holder. Printed in Czech Republic 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.