Brazil: Extra-Time For Human Rights?

by Natacha Bracq of Global Rights Compliance LLP

Maracana 2014

Maracanã, Rio de Janeiro, February 2014, (c) ME /Portal da Copa

Although it is considered to be the world’s seventh wealthiest country, Brazil’s human rights record is faltering at best. However, this year’s 2014 FIFA World Cup has brought some overdue international attention, as well as stirring up large internal protests. The contrasts could not be starker. Despite its impressive economic development and the enormous expenditure associated with the World Cup, government corruption, poor public services and police violence continued to blight the lives of ordinary Brazilians and have given rise to understandable public outrage. For over a year, Brazil has experienced waves of protests with around a million people on the streets. However, as tens of thousands of tourists descended upon the 12 hosting cities, little appears to have been done to answer Brazilians’ call for justice or improvements. Given the police and military conduct, one might be mistaken for believing that the authorities care little for responses, except those that are accompanied by tear gas and violence.

Reporter Brasil (a Sao Paulo based NGO) identified six main categories of human rights abuses that are associated with the hosting of the World Cup: the right to decent work, the rights of children and adolescents, the right to protest, the rights of stakeholders, housing rights, and the rights of immigrants and temporary workers. Tellingly, rather than amending laws to address societal need, the Brazilian Congress instead enacted the General Law of the World Cup that, in the main, restricted rights guaranteed by the Constitution and other legislation. The changes mainly serve the interests of FIFA and its sponsors, meanwhile doing nothing to address the country’s human rights record.

Of particular concern is the number of people forcibly evicted from their homes. In her 2011 statement, the UN Special Rapporteur on the right to adequate housing, Raquel Rolnik, warned about the obvious risks of large-scale evictions flowing from the construction that was already taking place in preparation for the World Cup. Apparently ignoring these cautionary admonishments, the government has overseen an impressive volume of evictions that may number up to 250.000 people. Whilst some may query this figure, and while it pales into relative insignificance when one considers the estimated 1.25 million people that lost their homes in China in the run up to the 2008 Olympics, no one can seriously doubt that the total tally is well into the tens of thousands.

Human trafficking and child prostitution have also been amongst the most heinous of human rights violations. Human trafficking has become commonplace in major sporting events. With thousands of tourists descending on Brazil seeking pleasure, combined with the fact that prostitution is legal, there were long-standing fears that this would lead to a rise in human trafficking and a flourishing child sex trade industry. Girls as young as 11 years old have been seen walking down boulevards touting for business.

Further, despite Brazil’s ratification of the ILO Forced Labour Convention (N°29), there has been ample evidence of forced labour conditions, including those imposed upon 111 workers, many of them foreigners, found by the Labour Ministry during an inspection of a construction company working on the São Paulo airport. Forced to sleep on threadbare mattresses with no access to water, refrigerators or stoves, the workers were paid a derisory $250, despite a promise of $625 a month. Unsurprisingly, the Labour Attorney General’s office described what that they found as “conditions analogue to slaves”.

Further the problems have not been limited to loss of employment or slave labour but have also concerned basic safety standards. Brazil ratified the ILO Safety and Health in Construction Convention (N°167) providing that all appropriate precautions shall be taken to ensure that all workplaces are safe and without risk of injury to the safety and health of workers (Article 13). However, at least eight workers have died in accidents due to irregularities and lack of safety during the construction of the stadium, according to the authorities. After the electrocution of one worker in Cuiaba arena, electrical work was stopped until safety precautions were taken. Safety conditions were also raised last year when a crane collapsed, killing two workers.

Concerns have also arisen regarding violations of the right to work as only official vendors or people authorised by FIFA have been allowed to sell products in a two-kilometre exclusion zone around the stadium. Street vending commerce has been strongly restricted. As a result, during the World Cup, many street vendors have lost their employment.

On paper, the embattled FIFA (facing allegations of endemic corruption in Qatar), claims to be concerned about human rights issues. Further, it has embedded environmental protec­tion within its future bidding agreements with host cities, beginning with the process for the 2018 and 2022 World Cup. It is currently considering making the human rights record of a country a factor to be taken into account when awarding future events. However, whether these agreements are worth the paper they are written on remains to be seen.  After all, in the 2014 FIFA World Cup Sustainability Strategy – Concept, FIFA and the Brazilian organisers made express commitments concerning the protection of human rights (especially regarding the prevention of slave labour, child labour and human trafficking). The 2014 strategy was based on the guidance on social responsibility of the ISO 26000, the principal basis for the UN Guiding Principles on Business and Human Rights (UNGPs). Notwithstanding, little seems to have been done.

It cannot seriously be argued that FIFA’s hands (or feet) are tied. FIFA’s position within the footballing world provides a unique platform to ensure businesses respect the emerging regulatory framework for human rights due diligence, based on international standards and national state practice, with the UNGP’s as the starting point. The UNGPs, adopted in June 2011, are based on three pillars: the State duty to protect human rights, the corporate responsibility to respect human rights and the access to remedy for victims of human rights abuses. The Guiding Principles reaffirm the States’ obligations to respect, protect and fulfil human rights, which include the duty to protect against human rights abuse by business enterprises (Principle 1). Therefore, under the UNGPs, Brazil has a duty to ensure that human rights are respected by businesses participating in the World Cup, inter alia, by taking preventative measures, such as enacting policies or legislation and ensuring their enforcement or by providing effective guidance to businesses and requiring them to carry out human rights due diligence (Principle 3). More relevant, all businesses have the duty to respect human rights (Principle 11). This includes not only those who have contractual relationships with FIFA but also those involved in the construction, hotel or other associated industries. FIFA has the ability to apply considerable pressure to those businesses it works with or otherwise endorses, to respect human rights.

Whilst many human rights violations have undoubtedly taken place, and the World Cup is now over, it is not too late for Brazil or FIFA to address those issues. In addition to setting a general framework for businesses, the UNGPs demand, as part of the “protect, respect and remedy framework”, that where adverse impacts have occurred, states and businesses have obligations to provide or ensure remediation.

Accordingly, Brazil must take appropriate steps to ensure that when abuses have occurred within its territory, those affected have access to effective remedies. As noted by Principle 25, remedies come in many different forms. They may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions. More specifically, Brazil should ensure the effectiveness of its judicial mechanisms (Principle 26) and provide effective and appropriate non-judicial grievance mechanisms (Principle 27). Brazil could address human rights abuses through its courts (criminal and civil), labour tribunals, National Contact Point under the Guidelines for Multinational Enterprises of the OECD, or its Ombudsman (Procuradoria Federal dos Direitos do Cidadão). It could also facilitate access to effective non-State-based grievance mechanisms, such as internal mechanisms implemented by companies involved in World Cup-related business (Principle 28). On the other hand, according to Principle 30, FIFA or other business enterprises should, for their part, ensure that these types of effective grievance mechanisms are internally available.

In sum, FIFA is in a unique position of authority to improve the human rights situation surrounding this global event by promoting the UNGPs within Brazil, as well as to associate companies and its own sponsors. Looking to the future, FIFA could establish a strategy for integrating a human rights-approach based on the UNGPs carrying out, inter alia, human rights due diligence. It could also require its sponsors to respect the UNGPs and to remediate adverse human rights impacts. The Institute for Human Rights and Business’s proposal to create an ombudsman under FIFA’s authority to receive human rights complaints pertaining to the World Cup would represent a big step forward. More recommendations for the different actors (FIFA, States and companies) have also been formulated: such as urging FIFA to revise existing candidate requirements so that bid countries conduct a human rights due diligence that includes relevant human rights issues.

Finally, to identify the areas where human rights have been violated throughout the full life-cycle of the event, it would be prudent to carry out a study on the compliance with human rights by the different corporate actors such as matters related to forced eviction, working conditions, exploitation of migrant workers or child prostitution..

In a world where social corporate responsibility is growing in importance, Brazil, FIFA and the associated businesses should seize this opportunity to establish a solid framework that is more respectful of individuals’ rights. Major sporting events and the actors involved in their organisation have the power to set an example to the millions of people watching them.

As Brazil has found to its cost, defeat is that much more bitter when it is accompanied by serious violations of the basic rights of its citizens. However, as FIFA packs up to leave, and Germany celebrates its hard-won victory, victims of human rights have no such luxury. Therefore, to use footballing parlance, extra-time should be awarded to consider and remedy the human rights violations that have been caused in Brazil as a result of the World Cup. Brazil may have been beaten on the pitch, but it could still yet show its winning side.