The blog analyses Brazil´s role in the business and human rights agenda after 2014, when two processes came together: the UN Intergovernmental Working Group on a Business and Human Rights Treaty and the Working Group on Business and Human Rights known by its efforts to have the National Action Plans based on the UN Guiding Principles approved. Brazil’s role during the Treaty´s negotiation sessions at the Human Rights Council has always been important. Although the country abstained from voting on Resolution 26/9, in 2014, after that, Brazil even helped to unlock the third session, in 2017, when the European Union put as a question of order, and a condition for the continuity of the session, the decision on the scope of the treaty, whether it should concern transnational corporations only, as the mandate of the Resolution indicates, or all business. Brazil argued that the negotiations should continue, also because it agreed with the European Union regarding a broader scope, and therefore considered it essential to continue the debates to reach this point of discussion.

This text will highlight the perspectives of a new Luís Inácio da Silva (Lula) administration, who will assume his third term as President in January 2023. To this end, the analysis is divided into three main periods: from 2015 to 2017, which coincides with the first three negotiation sessions of the Treaty on Business and Human Rights, concluded with the presentation of the Elements text, as foreseen in the text of Resolution 26/9, and the elaboration of the first National Action Plans; a second moment marked by the election of Jair Messias Bolsonaro, in 2018, until 2022, when more substantial negotiations regarding the content of the Treaty begin, and Brazil publishes, still under the Michel Temer government,  the Decree No. 9571/2018 establishing National Guidelines on Business and Human Rights, in addition to announcing that the government would start the elaboration of the first Brazilian National Action Plan; and, finally, the perspectives for a new Lula mandate, starting in January 2023, from the civil society, as HOMA has participated in all of the negotiation sessions.

In the first moment, from 2015 until the end of 2017, civil society maintained a greater dialogue with government representatives since this interaction made sense because we were under the aegis of a democratic government. Brazil’s representation in Geneva, however, reproduced four main arguments to justify their shy participation in the agenda: Not being so qualified on the subject, both for the elaboration of a National Action Plan and to influence the Treaty negotiation; in view of the tradition of valuing “consensus” on international norms, it did not wish to issue any criticism of the Guiding Principles; it even admitted to having suffered threats of losing international investments if it became more involved in the negotiation of the Treaty; and finally, a common excuse used by delegations in Geneva, the lack of instructions coming from the capital.

Although the lack of dialogue between the government and part of its organized civil society had already been established since the parliamentary coup suffered by President Dilma Rousseff in 2016, the election of Bolsonaro in 2018 was a watershed. At the national level, government representatives ignored all the accumulation obtained by various segments of civil society on the issue. The government at the time began some negotiations, without a broad call to society, in order to proceed with the effectiveness of the National Guidelines on Business and Human Rights established by Decree 9571/2018, published at the end of the Michel Temer administration, which also lacked due transparency and participation in its drafting.

The majority of non-governmental organisations, the Corporations WG, social movements, academic centres, and even public entities more involved in the agenda, such as the Federal Office of Prosecutors for the Rights of Citizens (PFDC), criticized the Decree, to the point that the National Council for Human Rights (CNDH), counting on the advice of HOMA, elaborated the Resolution No. 5/2020.  Despite this reaction, soon after, the Brazilian government, through the Ministry of Women, Family and Human Rights, announced that it would begin the elaboration of a National Action Plan, based on the anti-democratic Decree.

Thus, the organizations members of the Corporations WG joined a parliamentary front, and presented, through another consultancy carried out by HOMA, Bill 572/2022, currently under negotiation in the House of Representatives. This movement seems to have deflated, at least momentarily, the government’s efforts to elaborate its National Action Plan.

In the international field, Brazil has taken an increasingly aggressive position towards civil society, to the point of questioning the presence of this sector in the negotiation sessions of the Treaty. With regard to the instrument content, it can be observed that Brazil’s position had become increasingly closer to that of the countries that own the headquarters of transnational corporations, and even of those without a very protective tradition with regard to human rights provisions.

There is, therefore, a lot of expectation placed on the next Lula administration considering the business and human rights agenda. First, the whole terrain of democratic interaction whose reestablishment is announced. Consequently, the debate with civil society on the subject promises to be broader and more representative. In the same way, we expect the return of Itamaraty’s tradition of a high-level Foreign Policy formulation, including a coherent technical articulation between the national and international levels. Another promising element was Lula´s historical speech at the last COP27, which points to a return to the defence of multilateral instances, and to an inevitable relationship between environmental protection and the fight against poverty and social inequality. Therefore, we imagine that the theme of holding companies, especially transnational corporations, accountable for human rights violations that usually occur in the Global South, is gaining a larger and perhaps more ambitious space. Nationally, we await the support of binding and effective Human Rights norms, such as the PL 572/2022.

Manoela Carneiro Roland is a Professor at UFJF Law Faculty and HOMA-Human Rights and Business Centre General Coordinator (www.homacdhe.com), with a Master degree in International Relations and a PhD in International Law.

Tchenna Fernandes Maso is a Lawyer, LLM, and PhD candidate at UFPR and HOMA- Human Rights and Business Centre Researcher.

Andressa Oliveira Soares is a Lawyer, LLM, and PhD candidate at UFPR and HOMA- Human Rights and Business Centre Researcher.

Further reading from Business and Human Rights Journal:

Reflections on Decree 9571/2018 establishing National Guidelines on Business and Human Rights

Reports of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights

Statement of States at the 6th Negotiation Session of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights