TOWARDS EFFECTIVE REMEDIES FOR VIOLATIONS OF HUMAN RIGHTS BY CORPORATIONS: LESSONS FROM THE FUNDÃO CASE

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TOWARDS EFFECTIVE REMEDIES FOR VIOLATIONS OF HUMAN

RIGHTS BY CORPORATIONS: LESSONS FROM THE FUNDÃO CASE

Camila Manfredini de Abreu camila.abreu@alumni.usp.br

Student Number: 12518212

L.L.M. in International and European Law: Public International Law Thesis Supervisor: Dr. Mr. Tim Staal

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ACKLOWLEDGMENTS

I wish to thank all the people whose assistance was a milestone in the completion of this thesis. First of all, I would like to pay special regards to my parents for all the support they have provided since the beginning of my career. Thank you for being on my side throughout one more challenge. You are, and will always, be the main reason I strive to pursue my objectives, and I would not have achieved anything without you.

Then, I want to thank my boyfriend, Francisco, for all the love and companionship throughout this year. Thank you for encouraging me to take this master’s and to be the best partner I could have in this journey. I wish to acknowledge all your patience and help during the process of writing this thesis.

I am also indebted to all the great friendships I have built at UvA and all the great moments we have lived together during our master’s.

I wish to show my gratitude to my friend and co-worker Daniel for all his valuable and helpful comments. I am also grateful for the work experience I have accumulated in the past years at PGMBM, working for the claimants of the Fundão disaster litigation before the English Courts. I want to thank my family and friends in Brazil, whom I missed a lot during this past year, for the long-distance support and love.

Last but not least, I would like to recognize the invaluable assistance provided by my thesis supervisor Dr. Tim Staal. Thank you for guiding me through this long journey, boosting my critical thinking, and showing me the best directions towards a well-written thesis.

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ABSTRACT

Business and Human Rights has been a hot topic in the past years. Currently, a new treaty is under discussion in the UN, aiming to prevent and remediate human rights violations by companies. The Intergovernmental Group in charge of this task has already discussed the second version of this treaty, the Revised Draft. Notably, this treaty’s primary goal is to ensure effective remedies for victims of corporate-related human rights violations. However, even though the Revised Draft is already an enhanced version relative to the previous one, it still has many flaws and gaps that prevent victims effectively remediating the damages suffered. This thesis evaluates the Revised Draft in light of the Fundão case, said to be the worst environmental disaster in Brazil’s history. Through an analysis of specific issues relating to the disaster’s remediation process, it is concluded that the Revised Draft is still too weak to fulfil its objective of providing victims with effective remedies. In reaching this conclusion, this thesis relies upon the relevant literature on business and human rights, the international legal instruments relating to this issue (both soft and hard law), and, finally, documents from the Fundão case. It is essential to highlight the difficulties with discussing a treaty that is not yet in force because it can be challenging to assess what a certain provision in a draft treaty is going to mean in practice, particularly if its formulation is imprecise and therefore could be interpreted in multiple ways. However, these imprecise formulations can in themselves already be subjected to criticism. With this in mind, this thesis aims to make a contribution towards a final version of the international treaty on business and human rights.

Keywords: business and human rights; Revised Draft; effective remedies; Fundão case; access to justice.

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LIST OF ABBREVIATIONS

BHP Ltd - BHP Group Limited

BHP Plc - BHP Group PLC

BRL – Brazilian Reais (Brazilian Currency)

CPA - Public Civil Action

EU – European Union

EUR – Euros

FGV - Fundação Getulio Vargas

GTAC - Terms of Conduct Adjustment Governance

IACHR - Inter-American Commission on Human Rights

IGWG - Open-ended Intergovernmental Working Group on proposed binding treaty

ILO - International Labour Organisation

NGOs - Non-governmental Organisations

OECD - Organisation for Economic Cooperation and Development

OHCHR - Office of the High Commissioner for Human Rights

TNCs – Transnational Corporations

TTAC - Transaction and Conduct Adjustment Agreement

UN – United Nations

UNBHRT – United Nations Treaty on Business and Human Rights

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1. INTRODUCTION

1

The capacity for transnational companies (TNCs) to abuse or affect the enjoyment of human rights has risen in parallel with their economic and social power in the global economy. However, there are significant difficulties in regulating the activities of TNCs in such a way that they conform to international human rights standards. For years, it has been debated whether public international law - and in particular international human rights law – could provide an adequate legal framework capable of application to cases concerning corporate-related human rights violations. Voluntary and soft law instruments can play an important role in outlining the implications of human rights for corporations2. However, those instruments have been widely recognised as being flawed3_{in practice as they rely on corporations’ ability}

to consider their own wider social impact.

Since the 1970s, there have been notable efforts to create international standards addressing these kinds of abuses through two important soft law instruments: (i) the OECD Guidelines for Multinational Enterprises4_{and (ii) the ILO Tripartite declaration of principles concerning}

multinational enterprises and social policy5. Also, in 1999, the UN Secretary-General asked world business leaders to embrace and enact a Global Compact, which introduced ten principles on human rights directly addressed to corporations6_{. Nevertheless, these three}

instruments do not establish a binding international framework; they rather urge companies to act consistently with their host states’ existing international human rights obligations.

1_{The author of this thesis represents the Claimants in the litigation before the English Courts against BHP Plc}

and BHP Ltd on the matter of the Fundao Dam Collapse.

2_{Bilchitz, D., “The Necessity for a Business and Human Rights Treaty”, Business and Human Rights Journal,}

2016, p.212.

3_{Deva, S., “Regulating Corporate Human Rights Violations: Humanizing Business”. Oxford: Routledge, 2012,}

pp.74–100.

4_{The OECD Guidelines were adopted in 1976 and consist of recommendations addressed by governments to}

multinational enterprises and provide non-binding principles for responsible business conduct. OECD, "OECD Guidelines for Multinational Enterprises 2011 Edition".

5_{The ILO Declaration was adopted in 1977. It provides direct guidance on social policy and responsible practices}

to states, companies, employers’ and workers’ organisations which are recommended to observe it voluntarily. ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. Fifth Edition, 2017.

6_United _Nations _Global _Compact _Website _Page _“Who _are _we”, _available _at:

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More recently, this policy approach has been governed by the United Nations Guiding Principles on Business and Human Rights. The UNGPs were established in 2011 by the UN Human Rights Council and provided the first global framework that has sought to clarify the respective roles and responsibilities of states, businesses and those affected by business-related human rights abuses. Although the Guiding Principles provide a widely accepted framework on business and human rights, they have a weak normative force in international law. However, the expansion of UNGPs has helped to create an environment in which a treaty with normative force becomes possible and to address some matters that cannot be included in a hard-law instrument. In this sense, the UNGPs can be considered the precursor to a binding instrument, and as such represent a substantial contribution to the advancement of human rights.

On 25 June 2014, this led the Human Rights Council to issue a resolution that established “an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights; whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises7”. The IGWG have already elaborated two drafts of the treaty, the most recent one is called “the Revised Draft”.

The Revised Draft “rightly places its raison d’être on victims and their protection8”, mirroring some provisions of the UNGPs. Therefore, its primary goal is “to ensure effective access to justice and remedy for victims of human rights violations and abuses in the context of business activities9”. However, would the treaty, as it stands now, be capable of fulfilling this aim? In order to undertake this analysis, this thesis adopts the premise that addressing hard cases must be seen as a core responsibility of the drafters if an ambitious treaty is to be concluded. After all, many corporate-related human rights abuses are “hard cases”, involving many victims and wrongdoers in multiple jurisdictions and creating difficult legal obstacles. Accordingly, this

7_{Human Rights Council, “Elaboration of an internationally legally binding instrument on transnational}

corporations and other business enterprises with respect to human rights” Resolution A/HRC/26/L.22/Rev.1.

8_{Angelini, A., “What the draft treaty's definition of 'victim' means for access to remedy”. Business & Human}

Rights Resource Centre. 2019, available at https://www.business-humanrights.org/en/what-the-draft-treatys-definition-of-victim-means-for-access-to-remedy (accessed on 01 May 2020).

9_{Human Rights Council, “Legally Binding Instrument to Regulate, in International Human Rights Law, the}

Activities of Transnational Corporations and Other Business Enterprises – Revised Draft”, 2019, available at

https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf (accessed on 30 April 2020), Preamble.

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research reviews the Fundão case, which has been said to be Brazil’s worst socio-environmental disaster10.

Despite its large scope, the Fundão disaster also concerns a typical example of violation of human rights by transnational companies in which access to justice to victims has not (yet) been ensured. In other words, it represents a much larger number of similar cases that arise throughout the world. The Fundão case happened on 5 November 2015 when a dam containing millions of litres of mining waste collapsed, killing 19 people11. The dam was used to store iron ore tailings, a toxic waste product of the mining operations of Samarco Mineração SA. Samarco was the vehicle for a 50/50 joint venture between two of the largest mining companies in the world, the Brazilian mining company Vale S.A. and the Anglo-Australian company BHP, the latter through a Brazilian subsidiary12.

With this in mind, this thesis aims to answer the following question: would the Revised Draft be sufficient to ensure adequate, effective, prompt and timely remedies for the victims of violations of human rights committed by the companies in the Fundão case? For the purpose of responding to the aforementioned question the present thesis will focus on three sub-questions: (i) what happened in the Fundão case and how has the remediation process evolved so far?; (ii) how does the Revised Draft aim to ensure access to justice and effective remedies for victims?; and (iii) how would the treaty make a difference in solving the main issues arising in the remediation process of the Fundão case?

The first and second sub-questions have a descriptive character as they focus on the factual background of Fundão case and provide an analysis of the provisions of the Revised Treaty in relation to access to remedies under international law, respectively. The third sub-question has an evaluative character since it aims to form a normative opinion about the business and human rights regulation through the analysis of the Fundão case. However, this thesis is not intended

10_{The Guardian, “Brazil dam disaster: firm knew of potential impact months in advance”, available at:}

https://www.theguardian.com/world/2018/feb/28/brazil-dam-collapse-samarco-fundao-mining (accessed on 11 June 2020).

11_{United Nations Environment Programme, “Mine tailings storage: Safety is no accident”, Report summary}

(2015), available at: https://gridarendal-website-live.s3.amazonaws.com/production/documents/:s_document/370/original/RRAminewaste_flyer_screen.pdf?150 9538685 (accessed on 11 June 2020).

12_{Samarco, “Corporate Governance”, available at:} _{https://www.samarco.com/en/governanca-corporativa/}

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to have a prescriptive character. The answer to how the treaty could be better drafted to address the issues arising herein is left to further research.

This thesis was written through reviewing the existing literature on the subject and the relevant international law instruments and their preparatory documents. Reference was also made to materials about the Fundão case as well as Brazilian and English court documents. The bibliography includes materials in English, Portuguese and Spanish.

This thesis is divided into three sections, in addition to this introduction. Section 2 provides a factual background on the Fundão case and what has been happened so far in the remediation process. Section 3 contains an analysis of the normative legal context that led to the elaboration of the Revised Draft, its main features, and Articles 4 and 7 of the treaty. Finally, Section 4 aimed to apply these relevant provisions to the main issues encountered in the remedy process of the Fundão case. This exercise leads to the conclusion that the Revised Draft does not furnish a sufficient legal basis to adequately address the lack of access to effective remedies for victims affected by the disaster.

2. FUNDÃO CASE: FACTUAL BACKGROUND AND REMEDY

MECHANISMS

This chapter provides a brief factual background on the Fundão case and describes the remediation process that has taken place so far both in Brazil and abroad. When the Fundão dam collapsed, it released approximately 50 million cubic meters of toxic waste into a tributary of the Doce River. The dam was filled with mud waste from iron ore production called tailings, a product of metal filings, water and chemicals. The avalanche of iron ore tailings killed 19 people in the small community of Bento Rodrigues and totally destroyed the village13. Then, it advanced rapidly down various water courses, spilling over their banks into different municipalities of the state of Minas Gerais, causing destruction of infrastructures, farmland, and wildlife. The cascade of mud and toxic water passed through nearly 700 km of waterways. The disaster impacted hundreds of thousands of people in two States (Minas Gerais and

13_{Sánchez, L.E., et al., “Impacts of the Fundão Dam failure. A pathway to sustainable and resilient mitigation.}

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Espírito Santo), including protected indigenous people and communities living along the course of the river.

Figure 1- The village of Bento Rodrigues was destroyed after the Disaster (Source: Rogério Alves/TV Senado)

Since the disaster, various criminal and civil proceedings have been brought before Brazilian courts against Samarco’s directors, Samarco, Vale and BHP's Brazilian subsidiary both by affected individuals and public authorities in Brazil. As a result of those proceedings and the compensation scheme set up, some of the victims of the disaster have received some modest compensation. Nevertheless, most have received nothing14. Given the current lack of progress, it appears that victims have no prospect of receiving proper compensation through the Brazilian courts for their losses within a reasonable timeframe, if ever 15_.

14_{Even though there is no final assessment of the impacts of the disaster, it is estimated that over 3 million people}

were affected. Nevertheless, according to Renova Foundation, until June 2020, only 98,327 people were recognised as affected. See https://www.fundacaorenova.org/programa/levantamento-cadastro-dos-impactados/

(accessed on 16 July 2020).

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Twenty-five days after the collapse, a Public Civil Action (CPA)16 was commenced against Samarco, Vale and BHP Brasil by the Brazilian State17, joined by other public entities, seeking BRL 20 billion (EUR 326 million) in damages. Four months after, the parties signed the Transaction and Conduct Adjustment Agreement (TTAC) to remedy the disaster, which acted as a vehicle to enable some victims of the collapse to obtain limited compensation through an extra-judicial process. It was intended to be an umbrella agreement under which parties would undertake 41 programmes through the Renova Foundation, a private legal entity funded and maintained by the companies. Civil society, scholars, members of the Public Prosecutor’s Office, and the affected communities strongly criticised this mechanism. The TTAC was signed without holding any consultation with the affected individuals during the negotiations or the set-up, assessment and implementation of the remedy mechanisms created by the agreement, as it should have been according to the United Nations Working Group on Business and Human Rights18.

As a result of its dissatisfaction with the TTAC, on 2 May 2016, the Federal Public Prosecutor filed a further CPA19 against the companies. This lawsuit sought the annulment of the TTAC, which was granted in August 2016, and BRL 155 billion (EUR 25 billion) in damages. Even though the TTAC became void, the parties to it continued to apply the agreement as it was still enforceable, causing systematic human rights violations20_{. This CPA resulted in the conclusion}

of the Terms of Conduct Adjustment Governance (GTAC), whose purpose was (a) to change the governance process set forth in the TTAC regarding the implementation of the programs; (b) to provide effective mechanisms for the participation of the affected people; and (c) to set

16_{A CPA is a specific procedure under Brazilian Law (n. 7347/1985) which may be brought where the public}

interest is engaged.

17_{Federal Union et al v Samarco et al, Proceeding n.1024354-89.2019.4.01.3800, 12}th_{Federal Court of Minas}

Gerais.

18_{United Nations General Assembly, “Report of the Working Group on the issue of human rights and}

transnational corporations and other business enterprises”. A/72/162, p.8.

19_{Federal Public Prosecutor’s Office et al v Samarco et al, Proceeding n.1016756-84.2019.4.01.3800, 12}th_Federal

Court of Minas Gerais.

20_{Conectas Human Rights et al, “Update after the Two and a Half-Year Anniversary of the Doce River Dam}

Disaster”, urgent appeal presented to the UN Special Procedures, http://www.conectas.org/wp/wp- content/uploads/2018/04/Doce-river-Two-and-a-half-year-anniversary-update-10042018.pdf (accessed 27 April 2020).

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up a negotiation procedure aimed at a possible renegotiation of the programs. The new governance structure established under the GTAC has not been fully implemented yet.

Given the climate of corporate impunity in Brazil, thousands of victims of the Fundão disaster have decided to file claims21 for compensation against the English company BHP Group Plc and the Australian company BHP Group Limited (the ultimate holding companies of BHP, a dual-listed company), in the courts of England and Wales. More than 200,000 affected individuals, indigenous peoples, companies, municipalities, and the Archdiocese of Mariana, all of whom suffered loss and damage in several different ways as a result of the disaster, have joined the extraterritorial action22 in an attempt to obtain redress abroad. The claims are brought pursuant to Brazilian Law under which it is alleged that the defendants are strictly liable for the damage caused by the collapse due to their voluntary act, omission or negligence. BHP’s liability arises from the fact that it is the controlling shareholder of Samarco.

The defendants have challenged the jurisdiction of the English Courts to hear the case. BHP Ltd, the Australian company, has applied to stay the claims against it on forum non conveniens grounds. It contends that England is an inappropriate forum to hear the claims, and Brazil is an available forum and more appropriate. BHP Plc, the English company, has applied for a stay of the claims against it pursuant Article 34 of the Recast Brussels Regulation on the basis that there are related actions pending before the Brazilian courts which give rise to a risk of irreconcilable judgments. The jurisdiction hearing is scheduled to commence on 22 July 2020. Hence, by the time of the conclusion of this thesis, there was not yet a final decision on the defendants’ jurisdiction challenge application.

Both the Brazilian and English proceedings were brought under relevant domestic and European Union law – the Brazilian proceedings were brought on the basis of Brazilian law as the damage occurred in Brazil and in the English proceedings the applicable law is Brazilian law, while procedural matters are governed by English and EU law as the proceedings are brought in England23_{. No remedies were sought under public international law.}

21_{Municipio De Mariana & Others v BHP Group PLC (formerly BHP Billiton).}

22_{The Guardian, “BHP Billiton facing £5bn lawsuit from Brazilian victims of dam disaster”, available at:}

https://www.theguardian.com/environment/2018/nov/06/bhp-billiton-facing-5bn-lawsuit-from-brazilian-victims-of-dam-disaster (accessed on 08 June 2020).

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Brazil has several domestic and international human rights obligations24 and, thus, is already under a legal obligation to address human rights abuses by foreign companies on its territory. Nevertheless, many gaps and problems encountered in the remediation process of Fundão disaster are caused by shortcomings in the implementation and enforcement of the law. Here the distinction between obligations and enforcement is relevant because it relies upon the idea that current human rights treaties create obligations for non-state actors with an indirect horizontal effect, i.e. non-State actors are not directly responsible in the international level while States have direct obligations to protect human rights from the harmful actions of non-State actors25.

3. THE REVISED DRAFT: IMPROVEMENTS AND GAPS TOWARDS

ACCESS TO JUSTICE AND EFFECTIVE REMEDIES

This chapter aims to assess the context that led to the elaboration of the Revised Draft and its main features. Then, it is imperative to scrutinise how the Revised Draft tackles its first and foremost goal: the guarantee of access to effective remedies for victims of businesses’ violations of human rights.

3.1. Towards a Binding Treaty: the UNGPs, the “Zero Draft” and the “Revised Draft”

The UNGPs arose from the 2008 “Protect, Respect and Remedy” Framework and are structured on a three-pillar structure: (i) the state duty to protect against third-party human rights abuses; (ii) corporate responsibility to respect human rights of those affected by their operations; (iii) and the rights of victims to an effective remedy if human rights abuses occur.

The focus of the UNGPs is on negative obligations with a limited role for positive obligations. This approach has been strongly challenged by several scholars who contend that a treaty on business and human rights should impose a wide range of positive and direct obligations on

24_{Brazil is a party to the International Covenant on Economic, Social and Cultural Rights, the International}

Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

25_{Lane, L. "The Horizontal Effect of International Human Rights Law in Practice", European Journal of}

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companies26, which, nonetheless, is not established by the Zero and the Revised Draft. Both versions of the treaty still address corporate human right responsibilities, but only indirectly through state obligations. That said, the desirability of direct obligations to companies is a complex debate, and, thus, is considered to be outside the scope of the present study as it would require more in-depth analysis.

Following the establishment of the IGWG by the Human Rights Council, several sessions took place in order to draft the UNBHRT between 2015 and 2017, resulting in the “Zero Draft” presented in September 2018 at the third session of the IGWG. The Zero Draft was subjected to many criticisms27 and none of its clauses resulted in businesses having direct human rights obligations. Building on the Zero Draft, the IGWG released a Revised Draft of the proposed binding treaty on business and human rights on 16th_{July 2019.}

From Article 2 (the Statement of purpose), one can see that the Revised Draft has two objectives. First, it aims to provide broad protections for victims, strengthening “the respect, promotion, protection and fulfilment of human rights in the context of business activities28_”

and preventing “the occurrence of such violations and abuses29”. Secondly, it intends to “promote and strengthen international cooperation30”, clarifying the manner in which those rights should be implemented in cases where victims face challenges in accessing justice due to the transnational nature of the conduct, which often forces victims to bring legal actions against transnational corporations directly in the transnational corporations’ home State and to confront substantive and procedural barriers.

In light of these goals, the treaty establishes the right of victims (Article 4), provides for the creation of mechanisms, such as human rights due diligence, to prevent the occurrence of such violations and abuses (Article 5), provides for a comprehensive system of legal liability (Article 6), specifies rules for an extensive adjudicative jurisdiction (Article 7), and strengthens mutual

26_{See Latorre, N. “The Obligations of Transnational Corporations: Rawlsian Justice and the Duty of Assistance.”}

Business Ethics Quarterly, vol. 14, no. 4, 2004, pp. 643–661; and Bilchitz, D., “The Necessity for a Business and Human Rights Treaty”. Business and Human Rights Journal, 2016.

27_{See Bialek, J., “Evaluating the Zero Draft on a UN Treaty on Business and Human Rights: What Does it}

Regulate and how Likely is its Adoption by States?”. Goettingen Journal of International Law 9, 2019.

28_{Human Rights Council, Revised Draft, Article 2(1)(a).} 29_{Ibid, Article 2(1)(b).}

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legal assistance (Article 10) and international cooperation (Article 11). The new draft makes at least three major improvements on the Zero Draft: (i) it covers all business corporations regardless of whether they are domestic or transnational; (ii) its preamble and provisions are expressly consistent with the UNGPs; and (iii) it is better drafted and structured as a legal and technical document.

The Zero Draft was built on the presumption that the scope of the proposed treaty would be limited to regulating the transnational activities of business enterprises31. Conversely, Article 3(1) of the Revised Draft widened this scope, establishing that “[it] shall apply, except as stated otherwise, to all business activities, including particularly but not limited to those of a transnational character32_{”. By doing this, the treaty reaffirms existing duties of states in relation}

to domestic companies or activities within their territories, and creates new obligations to regulate the activities of transnational corporations and ensure cross-border accountability and remedy33.

The explicit reference the Revised Draft makes to the Guiding Principles in its preamble is a significant improvement on the Zero Draft. By acknowledging the principles, drafters make clear that this new project is a complement and not a replacement of the UNGPs34. Both documents – UNGPs and the future treaty – can and must reinforce each other as an international system aimed at achieving genuine protection and remedy for victims.

In general, the Revised Draft is clearer and more precise than the previous version. The new draft also contains stronger provisions, which are key from a human rights perspective. Yet, the treaty also has some flaws, which should be addressed in its next draft. Generally, the Revised Draft shows that the scope of the duties and liability imposed upon companies by the treaty continues to be problematic and that many issues and ambiguities remain.

31_{Lopez, C., “The Revised Draft of a Treaty on Business and Human Rights: A Big Leap Forward”, Opinio Juris,}

2019, available at: http://opiniojuris.org/2019/08/15/the-revised-draft-of-a-treaty-on-business-and-human-rights-a-big-leap-forward/ (accessed on 07 July 2020).

32_{Human Rights Council, Revised Draft, Article 3(1).}

33_{Quijano, G., “A new draft Business and Human Rights treaty and a promising direction of travel”, Business &}

Human Rights Resource Centre, available at: https://www.business-humanrights.org/en/a-new-draft-business-and-human-rights-treaty-and-a-promising-direction-of-travel (accessed on 07 July 2020).

34_{Human Rights Council, “Report on the fifth session of the open-ended intergovernmental working group on}

transnational corporations and other business enterprises with respect to human rights”, A/HRC/43/55, available at: https://ap.ohchr.org/documents/E/HRC/other/A_HRC_43_55%20E.pdf (accessed on 26 May 2020), para.12.

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3.2. Access to Justice and Effective Remedies under the Revised Draft

The meaning of access to an effective remedy within the UNGPs is important for interpreting the Revised Draft. Guiding Principle 25 reminds States to "take appropriate steps to ensure" that those affected by business-related human rights abuses within their territory and/or jurisdiction "have access to effective remedy". The UNGPs establish some operational principles that should inform the mechanisms that build the system of remedy. State-based judicial mechanisms – the filing of legal action through national courts - are not the only means of achieving access to remedy in cases of business-related human rights violations. Other possibilities may include state-based non-judicial mechanisms and non-state grievance mechanisms35. Nevertheless, effective state-based judicial mechanisms are “at the core of ensuring access to remedy”36 and indispensable for effective protection against certain violations.

General Principle 26 provides that “states should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses”. However, its Commentaries37_{do not include detailed guidance on factors relevant to}

measuring the “effectiveness” of the mechanisms and do not provide a relevant basis for the application of Article 4 of the Revised Draft.

The Revised Draft preamble highlights the “right of every person to have effective and equal access to justice and remedy in case of violations of international human rights law38_{”. In}

Article 2, the treaty underlines its goal of ensuring “effective access to justice and remedy for victims of human rights violations and abuses39”. In this context, Article 4 aims at realising this right providing that:

35_{Human Rights Council, “Improving accountability and access to remedy of business-related human rights}

abuse”. A/HRC/32/19, available at:

https://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/A_HRC_32_19_AEV.pdf (accessed on 25 May 2020), p.3.

36_{Guiding Principles 26 and commentary.}

37_{The UNGPs are accompanied with commentaries to the guiding principles, which aim to interpret and explain}

them: https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.

38_{Human Rights Council, Revised Draft, Preamble.} 39_{Ibid, Article 2.}

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4. Victims shall have the right to benefit from special consideration and care to avoid re-victimization in the course of proceedings for access to justice and remedies, including through appropriate protective and support services that ensures substantive gender equality and equal and fair access to justice.

(emphasis added)

5. Victims shall have the right to fair, effective, prompt and

non-discriminatory access to justice and adequate, effective and prompt remedies

in accordance with this instrument and international law. Such remedies shall include, but shall not be limited to:

a. Restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition for victims;

b. Environmental remediation and ecological restoration where applicable, including covering of expenses for relocation of victims and replacement of community facilities. (emphasis added)

Additionally, Article 4 establishes:

8. …State Parties shall provide their domestic judicial and other competent authorities with the necessary jurisdiction in accordance with this (Legally Binding Instrument), as applicable, in order to allow for victim’s access to

adequate, timely and effective remedies. (emphasis added)

Finally, the same Article states:

12. State Parties shall provide proper and effective legal assistance to victims throughout the legal process, including by:

a. Making information available to victims of their rights and the status of their claims in an appropriate and adequate manner;

b. Guaranteeing the rights of victims to be heard in all stages of proceedings as consistent with their domestic law;

c. Avoiding unnecessary costs or delays for bringing a claim and during the disposition of cases and the execution of orders or decrees granting awards; d. Providing assistance with all procedural requirements for the presentation of a claim and the start and continuation of proceedings in the courts of that State Party. The State Party concerned shall determine the need for legal

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Accordingly, Article 4 aims to establish the rights of victims and to ensure that access to justice is provided on a “fair”, “effective”, “prompt” and “non-discriminatory” basis and remedies are “adequate”, “effective”, “prompt” and “timely”. However, it is not clear what these factors mean or how to measure them. What should be considered an adequate remedy? When can a remedy be deemed effective? How quickly must a victim receive compensation for it to be considered prompt? How long can the remediation process take to be deemed timely? The treaty itself does not answer any of these questions. Therefore, it would be necessary to rely upon other human rights instruments40 and UN documents to provide general guidance for applying the Revised Draft.

In 2017, the IGWG relied upon primary and secondary sources of international law to prepare the “Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises”, a report41 exploring the concept of access to effective remedies under the UNGPs, which is very important for interpreting and applying the Revised Draft. According to the IGWG 2017 report, the right to an effective remedy is a human right with both procedural and substantive elements which imposes a duty on states to respect, protect and fulfil this right as well as responsibilities on non-state actors, including businesses42. To ensure this right is protected, bearers of the corresponding duty or responsibility should provide access to appropriate remedial mechanisms. Thus, the concept of access to effective remedies is derived from and dependent on the right to an effective remedy43_{. Nonetheless, providing}

access to remedial mechanisms does not suffice; it is the outcome of the process that matters. The specific adjectives in the Revised Treaty – adequate, effective, prompt and timely – must be distinguished based on their respective meanings. The IGWG 2017 report sets general guidelines that must be considered for the fulfilment of these requirements. The adequacy of remedies has several elements and should be determined keeping in mind not only the current needs of the victims, but also their future long-term needs. There should also be some flexibility

40_{The right to an effective remedy is recognised in the Universal Declaration of Human Rights (Article 8) and in}

the International Covenant on Civil and Political Rights (Article 2 (3)).

41_{United Nations General Assembly, A/72/162.} 42_{Ibid, p.7.}

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to respond to harm discovered after the conclusion of a settlement44. The Revised Draft mentions in Article 4(5) some examples of remedies, though these are not intended to be an exhaustive list. Nonetheless, it does not specify criteria for assessing the adequacy of a specific remedy to a particular situation.

Pursuant to the General Comment 24 of the Committee on Economic, Social and Cultural Rights, the requirement that remedies be available promptly requires that victims seeking redress must have prompt access to an independent public authority, which must have the power to determine whether a violation has taken place and to order cessation and reparation45. The General Comment states that the analysis of whether a remedy is timely will depend on a number of factors, such as the complexity of a case, any transnational dimension, the number of affected people, the nature of the abuse, the type of remedy sought, the capacity of a given remedial mechanism46, and what the victims regard as timely. But it does not provide objective criteria for assessing these factors.

From Article 4, it is clear that the Revised Draft makes rights holders central to the whole remediation process, including to its effectiveness. Nevertheless, the treaty does not provide clear orientation for the measurement of the remedy’s effectiveness. The IGWG 2017 report shows that the centrality of rights holders to ensuring access to effective remedies entails that there are several factors that are crucial for filling the gaps encountered in the Revised Draft. First, remedial mechanisms should be responsive to the diverse experiences, perspectives, interests and opinions of right holders47. Second, remedies should address the needs of rights holders seeking justice. Third, affected rights holders should have no fear of victimisation in the process of seeking remedies. Fourth, a range of remedies should be available to rights holders. Fifth, all mechanisms should be available to rights holders, who should be consulted when creating, reforming and implementing such mechanisms. Sixth, the effectiveness of a remedy should be judged from the perspective of affected rights holders. Seventh, if there is a power imbalance between affected right holders and a given company, the asymmetry of that relationship should be addressed. Eighth, rights holders should have access to information

44_{Ibid, p.11.}

45_{Committee on Economic, Social and Cultural Rights, General Comment n. 24, E/C.12/GC/24, p.12.} 46_Ibid.

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about their rights, the duties of States and responsibilities of businesses and all available remedial mechanisms and trade-offs between them48. Finally, access to effective remedies should be available without discrimination49.

Article 4(12) of the Revised Draft establishes how State parties shall provide proper and

effective legal assistance to victims throughout the legal process. Even though Article 4(12)

intends to provide some clarification of the factors that should be taken into account when providing for an “adequate, effective, prompt and timely” remedy through the legal process, the provisions are not clear enough to ensure uniform interpretation and application by States Parties. What is the time frame envisaged for making information available to victims pursuant to Article 4(12)(a)? What constitutes an “unnecessary” delay in Article 4(12)(c)? Which kind of “assistance” with the proceedings should a State provide under Article 4(12)(d)?

Article 4 of the Revised Treaty is considered one of the most important articles in the instrument and critical to ensuring that those harmed get effective access to justice50. The provision sets out an array of rights of victims and is crucial to addressing the imbalance of power between rights holders and corporations. Nevertheless, as described above, Article 4 contains vague terminology that might lead to the inconsistent application of it from one State to another and which could render the provisions empty. Furthermore, as will be demonstrated in the next chapter, important issues relating to the remediation of human rights abuses are in no way addressed by the Draft.

Despite guaranteeing several rights to victims, Article 4 does not address matters of jurisdiction, which can be considered a legal barrier to the enforcement of these rights. In many cases, companies have a complex corporate structure designed to help them avoid liability. Therefore, choice of jurisdiction has been identified as key to ensuring effective access to justice51. The Revised Draft allows victims to choose between different fora when bringing their claim. Article 7 considers three elements to establish jurisdiction:

Article 7. Adjudicative Jurisdiction

48_{Guiding Principles 31(c) and 31(d).}

49_{United Nations General Assembly, A/72/162, pp.8-9.} 50_{Human Rights Council, A/HRC/43/55, para.44.}

51_{Terán, D., “The Core Elements of a Legally Binding Instrument: Highlights of the Revised Draft of the Legally}

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1. Jurisdiction with respect to claims brought by victims, independently of their nationality or place of domicile, arising from acts or omissions that result in violations of human rights covered under this (Legally Binding Instrument), shall vest in the courts of the State where:

a. such acts or omissions occurred; or b. the victims are domiciled; or

c. the natural or legal persons alleged to have committed such acts or omissions in the context of business activities, including those of a transnational character, are domiciled.

2. A natural or legal person conducting business activities of a transnational character, including through their contractual relationships, is considered domiciled at the place where it has its:

a. place of incorporation; or b. statutory seat; or

c. central administration; or d. substantial business interests.

The options established under this provision allow victims to select which forum offers the best chances for a successful claim and addresses the factors that might limit their access to justice. Article 7 could lead to courts asserting jurisdiction over actions taking place extraterritorially, although there is a significant disagreement over the desirability of that. On one hand, the greater choice of forums for potential claimants allows victims for having greater agency over where their claims should be adjudicated. On the other hand, that could lead to conflicts of jurisdiction and some suggest that the treaty should clarify how to address competing claims to jurisdiction52.

4. MAIN ISSUES OF THE FUNDÃO CASE AND THE INSUFFICIENCY

OF THE DRAFT TREATY ON BUSINESS AND HUMAN RIGHTS

Building on this brief analysis of Articles 4 and 7 of the Revised Draft, this chapter will delve into particular obstacles that victims of the Fundão disaster have encountered in the four years

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of the remediation process and evaluate whether the Revised Draft, specially Articles 4 and 7, would furnish the victims with adequate legal grounds to overcome these obstacles.

4.1. Applicability of the Revised Draft to the Fundão case

The Fundão case is a typical case that the drafters of the UNBHRT have in mind as it concerns a violation of several environmental and human rights by multinational companies. Hence, if the Revised Draft were in force it would be applicable to the Fundão case. Under Article 1 of the Revised Draft, “'victims” mean “any persons or group of persons who individually or collectively have suffered or have alleged to have suffered human rights violation or abuse as defined in Article 1 paragraph 2 below53”. Paragraph 2, in turn, establishes that “‘human rights violation or abuse’ shall mean any harm committed by a State or a business enterprise, through acts or omissions in the context of business activities54”. Finally, “business activities” is defined as “any economic activity of transnational corporations55”.

The Fundão disaster has affected and continues to affect victims who have suffered from devastating violations of their most fundamental rights, including the right to life56_{, the right}

to a clean and healthy environment, the right to housing57, the right to water, the right to food, the right to health58, the right to work59, the right to information60, and several rights of indigenous communities. This scenario is certainly encompassed by the scope of Article 1 of the Revised Draft. Moreover, the statement of purpose in Article 2, particularly the aim of providing effective access to justice and effective remedies to victims of violations and abuses (paragraph 3), is also applicable to the present case.

With this in mind, the Fundão case can be used to analyse the potential effectiveness of the Revised Draft in promoting access to justice for victims of business-related abuses. Several

53_{Human Rights Council, Revised Draft, Article 1.} 54_{Ibid, Article 1(2).}

55_Ibid.

56_{Article 6 of the International Covenant on Civil and Political Rights.}

57_{Article 11 of the International Covenant on Economic, Social and Cultural Rights.} 58_{Ibid, Article 12.}

59_{Ibid, Article 6.}

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issues related to the case could be analysed from the standpoint of the Revised Draft, but, as already acknowledged, this thesis will explore the applicability of Article 4 and Article 7.

4.2. The Revised Draft and the Remedial Mechanisms Issues Presented in the Fundão Case

If the Revised Draft were in force, the rights of victims set out in Article 4 could be invoked against all the companies responsible for the damage, including the parent companies, and against Brazil and the United Kingdom if they were parties to the treaty.

One of the central points of contention in the English proceedings has been whether Brazilian judicial remedies have been able to provide adequate, effective, prompt and timely remedies for the victims of the Fundão dam disaster. The claimants argue that there is no realistic prospect of obtaining a fair and public hearing in the Brazilian Courts within a reasonable timeframe61 (consistent with Article 6 of the European Convention on Human Rights62) in respect of their claims to full compensation in vindication of their rights against any of the defendants in Brazil.

Furthermore, various UN bodies and non-governmental organisations have criticised the response to the Fundão disaster, calling for greater attention to be paid to the lack of effective remedies. This has been reported in various documents addressed either to the Brazilian government or to the companies involved:

(i) On 30 June 2016, the UN Working Group on the issue of human rights and transnational corporations63 underlined the inadequate transparency, lack of victim

61_{Article 34 of the Brussels Recast authorises the court of the Member State to continue the proceedings at any}

time if “(c) it appears to the court of the Member State that the proceedings in the court of the third State are unlikely to be concluded within a reasonable time”.

62_{Article 6-Right to a Fair Trial: “In the determination of his civil rights and obligations or of any criminal charge}

against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

63_{OHCHR, Communications issued by the mandate of the Special Rapporteur on the human rights to water and}

sanitation, AL BRA 2/2016, available at:

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=3215 (accessed on 27 May 2020).

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participation and access to information in its analysis of the TTAC, expressing grave concern regarding the violation of victims’ rights to an effective remedy; (ii) On 5 July 2016, a group of United Nations human rights experts64, criticised the

TTAC and affirmed that “[t]he Executive powers and companies appeared to have, in their haste, ignored the rights of the victims to information, participation and an effective remedy, and to provide assurance of accountability”. They also urged the Brazilian Government “to address timely and adequately persisting human rights concerns”;

(iii) On 4 November 2016, UN experts launched an ‘urgent call for action’ on the anniversary of the dam collapse and highlighted concerns about access to justice, calling on the Brazilian Government “to step up its work to solve this legal deadlock, to avoid further damage to the human rights of the communities affected and to reach a full remediation scheme65”;

(iv) On 10 April 2018, several Brazilian organisations issued an Urgent Appeal to the UN Special Procedures Mechanism affirming that “[c]orporate and government actors have been systematically violating the affected communities’ rights to an effective remedy”. It records that “[t]he Brazilian State and the involved companies have been systematically failing to comply with their international responsibility to provide a prompt and timely remedy66”;

(v) On 5 September 2018, the Special Rapporteurs67 noted that “[i]ndigenous, fishing and other traditional communities, which depended on the Doce River, inter alia, for their cultural, religious, and leisure activities were not entitled to receive remedies for specific types of losses” and expressed a “general concern regarding

64_{OHCHR, “Brazilian mine disaster – UN experts call for a timely resolution after the settlement suspension”,}

available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20242&LangID=E

(accessed on 27 May 2020).

65_{OHCHR, “UN experts launch urgent call for action on anniversary of devastating Brazil dam collapse”,}

available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20829&LangID=E

(accessed on 27 May 2020).

66_{Conectas Human Rights et al, p.2.}

67_{OHCHR, Communication issued by several UN Mandates, AL BRA 11/2018, available at:}

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24070 (accessed on 27 May 2020).

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the lack of notable progress in remedying the situation of communities affected by the disaster.”

At the regional level, the remediation process of the Fundão case has been subject to many critiques by the Inter-American Commission on Human Rights (IACHR)68:

(i) After a visit to Minas Gerais to follow up on the situation of people affected by the disaster, the IACHR issued a press release in the following terms: “Given the scale and impact of the Mariana mining disaster, it cannot continue to go uninvestigated, especially as this is preventing those affected by it from receiving the care and reparation they deserve69”;

(ii) On 21 November 2019, the IACHR addressed the Fundão case and highlighted the lack of adequate redress: “the IACHR was informed that, three years after the disaster, little progress had been made to investigate and punish those responsible and to provide effective reparation to the victims70”

In order to consider how the Revised draft might alter the chances of successful access to justice and remedies, the next sections will raise specific issues that arose within the remedial mechanisms implemented as part of the Fundão case and analyse them in light of the treaty.

4.2.1. Lack of Centrality of the Victims in the Remediation Process

In the aftermath of the disaster, those responsible failed to react. While Samarco espoused the theory that the collapse was an unpredictable, exceptional event caused by factors entirely beyond its control, Vale and BHP took the position that they were legally distinct from their subsidiary, in order to evade responsibility71. The TTAC is a prime example of a failure to uphold basic rights to effective redress in both procedural and substantive terms. It has dramatically failed to respect the principle of the central importance of victims in processes of

68_{On 5 November 2019, in the fourth anniversary of the Disaster, different entities filed a complaint against the}

Brazilian State before the IACHR regarding the several violations arisen from the collapse. No progress occurred so far in this claim. See: http://www.global.org.br/blog/mariana-4-anos-entenda-o-caso-contra-o-brasil-no-sistema-interamericano/.

69 _IACHR, _“IACHR _Concludes _Visit _to _Brazil”, _November _12, _2018, _available _at:

https://www.oas.org/en/iachr/media_center/PReleases/2018/238.asp (accessed on 31 May 2020).

70_{IACHR, “Preliminary Observations of IACHR’s In Loco Visit to Brazil”, available at:}

http://www.oas.org/es/cidh/prensa/comunicados/2018/238OPeng.pdf (accessed on 31 May 2020), p.9.

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remediation. The settlement was negotiated and signed without holding any consultations with the affected communities, the public prosecutors, civil society organisations, and social movements.

In July 2016, the Brazilian Superior Court of Justice issued an injunction suspending the ratification of the TTAC by the 12th_{Federal Court of Belo Horizonte. Based on Brazilian law,}

it held that the failure to consult with affected people as defined in the terms of the agreement made it illegal and illegitimate. Nevertheless, the companies and the Brazilian government keep applying it as if it was still in force and the Renova Foundation is operating according to its provisions.

The GTAC was signed with the alleged purpose of changing the governance system established by the TTAC in order to increase the participation of the affected communities. Nevertheless, almost 2 years have passed since the GTAC was signed, and there is no imminent prospect of the process even starting. The possibility of a fair compensation scheme emerging is as distant and uncertain as ever. Control of the remediation process by the companies, without the participation of those affected, along with the Brazilian state’s inertia, creates a profound imbalance in power relations between the companies and the victims, with the latter bearing the burden of all the damages and risks resulting from the disaster72.

Four years and a half after the disaster, many communities and individuals are still struggling to be recognised as affected, which is the very first step of the remediation process73. Under the TTAC, the Renova Foundation - funded and maintained by the responsible companies - has the authority to determine (i) who is affected, (ii) the damages for which remedies may be claimed; (iii) what type of remedy will be provided for each type of damages; and (iv) the type of evidence that is acceptable to prove that an individual was affected and the damage he/she suffered74. Moreover, the affected communities have no decision-making power within

72_{Ibid, p.74.}

73_{Conectas Human Rights et al., p.4.}

74_{The Renova Foundation, as a mechanism established for the remediation of the Fundão Disaster, shows that to}

place direct obligations of providing effective remedies on companies carries risks of its own. Additionally, in contrast to what is supported by some scholars, it can be argued that enhancing the obligations of companies also risk diminishing the active responsibility taken by the state to fulfil its obligations. Nevertheless, as stated in Section 3.1 this debate will not be deepened in this thesis.

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Renova. Most of its members of the Board of Governors, which is the head of the Foundation, are appointed by the three funding companies75.

Under international human rights law, it is well recognised that victims of business-related human rights abuses shall have the right to participate in the creation, reform and operation of the redress mechanisms76. Nonetheless, Article 4 of the Revised Draft does not impose obligations on States and responsible businesses to ensure victims’ meaningful participation in the design and implementation of an effective remedy, retrogressing – in this respect - from existing human rights law. Consequently, the Revised Draft does not provide a crucial right that is essential for ensuring effective remedies and which has not been protected thus far in the Fundão case. Accordingly, the measures taken to resolve the consequences of the disaster can be deemed ineffective, as they disregard the central importance of the victim to his/her restitution, marked by the absence of active participation.

4.2.2. Re-victimisation of those Affected

Not only do the affected communities bear the burden of proving the damages, but the type of evidence required by Renova is also incompatible with the reality of many of the affected people, who are either informal workers or lost all their belongings in the disaster. Additionally, Renova has established the “indemnity policies”77 which can be defined as compensation systems for specific classes of affected people that standardised the amounts to be paid to certain segments of the population throughout the disaster region78_{. Furthermore, they}

currently encompass only individual material and irreparable damages.

There remains a huge gap from the perspective of full redress, especially with regard to immaterial, collective, damage resulting from the reparation itself and damage affecting specific groups, such as indigenous peoples and traditional communities. The process of recognition of an individual as affected is long and bureaucratic. People seeking to be

75_{Renova Website, Participating Parties, available at:}_{https://www.fundacaorenova.org/en/participating-parties/}

(accessed on 08 June 2020).

76_{General Principle 31 and United Nations General Assembly, A/72/162, p.8.}

77_{Even though its duty of transparency, Renova does not make public its indemnity policies.} 78_{Conectas Human Rights et al., p.5.}

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recognised as affected need to answer to a questionnaire written in technical and complex language, which makes it difficult for them to understand what is asked.

The Revised Draft provides adequate protection for victims suffering from this kind of revictimization and stigmatisation. Article 4(4) would have been violated as Renova is not ensuring the victims’ right to “benefit from special consideration and care to avoid re-victimisation in the course of proceedings for access to justice and remedies”.

On the top of this, the process involves gender discrimination. Fundação Getúlio Vargas (FGV) carried out research79 which analysed women’s complaints to Renova Ombudsman80. Given that social vulnerabilities tend to be aggravated in the context of disasters, "gender" should be interpreted not only as one of the fundamental axes for understanding the consequences of a disaster, but also as an essential component of targeting policies and programmes established in the post-disaster period81.

FGV research identified some important problems in the progress of recognition and treatment of the damage suffered by affected women, in addition to a lack of mechanism for prioritising their demands within the ongoing processes of redress. In 2019, 61.21% of the assessed complaints were made by women82. In this same year, 38% of the complaints were related to issues with household maintenance83. This may indicate that difficulties in the response and remediation process, mainly due to delays in providing the appropriate measures, influence the income of the families affected and, as a consequence, trigger greater difficulties in household maintenance, whose attribution is historically relegated to women84. Victims’ reports illustrate difficulties accessing sources of income, often due to paralysis at the registration stage which is the gateway to response and redress programs85_.

79_{Fundação Getulio Vargas, “A Situação das Mulheres Atingidas pelo Desastre do Rio Doce a partir dos Dados}

da Ouvidoria da Fundação Renova”. Rio de Janeiro; São Paulo: FGV, 2019.

80_{The purpose of the Ombudsman is to receive and handle requests that are not resolved by the other service}

channels and processes of Renova. For more details, visit: https://www.fundacaorenova.org/en/activity-report/governance//.

81_{Fundação Getulio Vargas, p.14.} 82_{Ibid, p.43.}

83_{Ibid, p.58.} 84_{Ibid, p.59.}

85_{State of Minas Gerais, “Avaliação dos efeitos e desdobramentos do rompimento da Barragem de Fundão em}

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Article 4(4) provides for victims to have the right to have access to “appropriate protective and support services that ensures substantive gender equality and equal and fair access to justice”. Even though this was an important development in the Revised Draft compared with its predecessor, the provision is too broad and does not reference gender-responsive assistance to victims. Organisations86 have called for the treaty to reflect a clearer gender lens throughout its text. This would include a provision establishing an intersectional approach as a principle of interpretation and implementation in prevention and reparation actions with gender dimensions. Hence, regarding the revictimisation of women affected by the Disaster, the treaty would fail to provide due prioritisation to this group of vulnerable people.

4.2.3. Impairment of the Right to Access Relevant Information

The means of accessing information available to affected communities are inadequate and incompatible with their resources and their way of life87. Likewise, the content of the information provided by Renova is usually insufficient and unreliable. By way of example, an individual seeking to be recognised as affected does not have access to Renova’s reasoning behind granting or denying the request. Also, affected people have no direct access to their own files and registration forms.

There have been some reports that Renova required affected people who received proposals within its Mediated Compensation Program - which will be further explained - to sign a confidentiality term preventing them from disclosing the content of the proposals. Besides, there are strong critiques of the lack of information about the quality of water, fish and soil, as well as measures of public responsibility regarding health and food security88.

To that end, Article 4(6) of the Revised Draft determines that “[v]ictims shall be guaranteed access to information relevant to the pursuit of remedies”. However, this provision is broad and leaves room for interpretation without setting the form or the content of the “information

86_{Lawyers for Human Rights, “Lawyers for Human Rights’ Comments and Amendments to the Revised Draft}

Legally Binding Instrument on Transnational Corporations and other Business Enterprises with Regard to Human

Rights”, available at:

https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session5/add/NGOs/LHR.pdf

(accessed on 3 June 2020).

87_{Conectas Human Rights et al., p.15.} 88_{Ibid, p.16.}

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relevant to the pursuit of remedies”. One could contend that Renova is giving information and complying with the terms of the treaty even though, as demonstrated, the information provided is not satisfactory. Therefore, the Revised Draft might not be sufficient to tackle the fact that the companies and the Brazilian State are failing to provide adequate means of accessing concrete information on victims’ rights and the remedies to which the victims are entitled.

4.2.4. Problems with the Remediation Mechanisms Available

Once people are recognised as affected by the Fundão disaster they have to choose between adhering to the Mediated Compensation Program (PIM) and seeking judicial remedies. Within the PIM, individuals are offered values far below what is just, the criteria used to establish such amounts is not clear, and there is no room for negotiation89. The moral damages given as compensation for deprivation of safe drinking water, for example, amount to BRL 2,00090 (approximately EUR 326).

Individuals who signed settlement agreements under PIM are required to waive the right to future claims. The agreements also contain clauses discharging the three defendant companies from damages that may arise from the disaster91_{, including damages that are not measurable or}

fully demonstrable by the victims. The full discharge clauses violate the principles of mediation, legal certainty and the right to a fair compensation, besides being manifestly disproportionate92_{. These release clauses do not allow for an “adequate” remedy. As seen in}

Section 3, the adequacy of remedies should be determined keeping in mind the future long-term needs of the victims. Flexibility should also be afforded in the agreements to respond to harm discovered after their conclusion93. However, these factors are not prescribed in the Revised Draft; they are rather derived from soft-law mechanisms. Thereupon, the UNBHRT

89_{Ibid, p.7.}

90_{TJMG, “TJMG julga IRDR da Samarco”, available at:}

https://www.tjmg.jus.br/portal-tjmg/noticias/tjmg-julga-irdr-da-samarco-1.htm#.XtYpU577SqA (acessed on 02 June 2020).

91_{This clause may change between agreements. Some of them give full and general discharge for the related}

damages originating or arising from the collapse, others give discharge exclusively for the related damages originating or arising from the object of the agreement. Most clauses provide exceptions for any future damages that may arise from the collapse following the signing of the settlement agreement.

92_{Conectas Human Rights et al., p.8.} 93_{See footnote 44.}

TOWARDS EFFECTIVE REMEDIES FOR VIOLATIONS OF HUMAN RIGHTS BY CORPORATIONS: LESSONS FROM THE FUNDÃO CASE