OPBP: Protection of Children from Sexual Exploitation during Construction Projects in Brazil

Oxford Pro Bono Publico www.law.ox.ac.uk/opbp

The

Protection of Children

from Sexual

Exploitation during Large-Scale Construction Projects in Brazil A comparative and international analysis of state and corporate obligations to protect children from sexual exploitation, prepared for UNICEF Brazil March 2014

CONTRIBUTORS Faculty: John Eekelaar Co-Director, Oxford Centre for Family Law and Policy, University of Oxford

Research co-ordinator(s): Kate Mitchell OPBP Deputy Chairperson (2013-14) MPhil in Law Candidate, University of Oxford

Ryan Manton DPhil in Law Candidate, University of Oxford

Chris McConnachie OPBP Chairperson (2012-13) DPhil in Law Candidate, University of Oxford

Researchers: Claire Palmer DPhil in International Relations Candidate, University of Oxford

Eleanor Mitchell OPBP Communications Officer (2013-14) MPhil in Law Candidate, University of Oxford Fernanda Fonseca Rosenblatt DPhil in Criminology Candidate, University of Oxford

Dhvani Mehta Chairperson, OPBP (2011-12) DPhil in Law Candidate, University of Oxford Vrinda Bhandari OPBP Internships Co-ordinator (2013-14) Master of Public Policy Candidate, University of Oxford

Menelaos Markakis DPhil in Law Candidate, University of Oxford

Laura Stacey MPhil in Development Studies Candidate, University of Oxford

Bianca Venkata BCL, University of Oxford

Pedro Rubim Borges Fortes DPhil Candidate in Law, University of Oxford

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The research co-ordinators would like to thank: x

Professor Timothy Endicott, Dean of the Oxford Law Faculty, for his support;;

x

The members of the Oxford Pro Bono Publico Executive Committee, Professor Sandra Fredman, Dr Liora Lazarus, Dr Jacob Rowbottom, Dr Miles Jackson, Shreya Atrey, Kate Mitchell, Tamas Szigeti, Daniel Cashman, Max Harris, Eleanor Mitchell, Lauren Dancer and Vrinda Bhandari for their support and assistance with this project.

Indemnity Oxford Pro Bono Publico (OPBP) is a programme run by the Law Faculty of the University of Oxford, an exempt charity (and a public authority for the purpose of the Freedom of Information Act). The programme does not itself provide legal advice, represent clients or litigate in courts or tribunals. The University accepts no responsibility or liability for the work which its members carry out in this context. The onus is on those LQ UHFHLSW RI WKH SURJUDPPH·V assistance or submissions to establish the accuracy and relevance of whatever they receive from the programme;; and they will indemnify the University against all losses, costs, claims, demands and liabilities which may arise out of or in consequence of the work done by the University and its members.

Intellectual property This report has been prepared exclusively for the use of UNICEF Brazil in accordance with the terms of the Oxford Pro Bono Publico Programme. It may not be published or used for any other purpose without the permission of OPBP, which retains all copyright and moral rights in this report.

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TABLE OF CONTENTS EXECUTIVE SUMMARY .................................................................................................. 5 INTRODUCTION ............................................................................................................. 8 1. The Problem ....................................................................................................................................... 8 2. Nature and Scope of Research ....................................................................................................... 10 A. %5$=,/·6 /(*$/ $1' NON-LEGAL RESPONSES TO CHILD SEXUAL EXPLOITATION .............................................................................................................. 12 1. Legal Responses ............................................................................................................................... 12 2. Non-Legal Responses ...................................................................................................................... 13 B. INTERNATIONAL LAW ......................................................................................... 15 1. Introduction ...................................................................................................................................... 15 2. The UN Guiding Principles on Business and Human Rights ................................................... 15 2YHUYLHZ RI VWDWHV· GXWLHV WR SURWHFW ............................................................................................ 16 4. The scope RI VWDWHV· GXWLHV WR SURWHFW ........................................................................................... 18 $ ¶VPDUW PL[· RI PHDVXUHV ........................................................................................................ 18 4.2 Heightened responsibility when there is direct public involvement in the business sector ............................................................................................................................................................ 19 5. The relationship between the state duty to protect and the corporate responsibility to respect .................................................................................................................................................... 20 6. The extraterritorial dimension of the duty to protect ................................................................. 21 C. SPECIFIC MEASURES TO PROTECT CHILDREN FROM SEXUAL EXPLOITATION ............................................................................................................. 23 1. Legal liability of companies ............................................................................................................ 23 2. Other judicial or non-judicial mechanisms................................................................................... 24 3. Awareness-raising ............................................................................................................................. 25 4. Codes of conduct ............................................................................................................................. 27 4.1

Tourism Sector ..................................................................................................................... 27

4.2

Finance Industry................................................................................................................... 29

5. Due diligence .................................................................................................................................... 30 6. State procurement ............................................................................................................................ 32 7. Summary ............................................................................................................................................ 34 ANNEXURES ................................................................................................................... 36 Annexure A: Companies Involved in World Cup and Olympic Construction* ......................... 36 List of construction companies involved in construction of World Cup stadia .................... 36 List of construction companies involved in projects related to the Olympic Games ........... 36 $QQH[XUH % %UD]LO·V UHOHYDQW LQWHUQDWLRQDO REOLJDWLRQV .................................................................. 38

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International and regional instruments ......................................................................................... 38 Â Soft-law instruments........................................................................................................................ 38 Â

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EXECUTIVE SUMMARY 1.

7KLV UHSRUW DQDO\VHV %UD]LO·V GXW\ WR SURWHFW FKLOGUHQ IURP VH[XDO H[SORLWDWLRQ GXULQJ large-scale construction projects, in light of the fact that these projects are largely operated by private construction companies. UNICEF Brazil approached Oxford Pro Bono Publico (OPBP) to conduct this research to support its work with the Brazilian government, as part of its effort to develop strategies to mitigate the negative effects of large-scale construction projects on children, such as the infrastructure development projects in the lead up the 2014 FIFA World Cup and the 2016 Rio de Janeiro Olympics. It is proposed that this report will be presented to the Secretariat for Human Rights of the Presidency of the Republic of Brazil at a seminar to be convened later this year.

2.

In the Introduction to the report, we explore the problem of child sexual exploitation in Brazil and how large-scale construction projects may contribute to this problem. The body of the report is divided into three parts. In part A, we provide D EULHI RYHUYLHZ RI %UD]LO·V OHJDO DQG non-legal responses to the problem of child sexual exploitation, focusing specifically on the construction sector.

3.

Part % FRQVLGHUV WKH %UD]LOLDQ VWDWH·V LQWHUQDWLRQDO ODZ GXWLHV WR SURWHFW FKLOGUHQ IURP VH[XDO exploitation. This part focuses on the UN Guiding Principles on Business and Human Rights formulated by Professor John Ruggie, the Special Representative of the Secretary-General on Business and Human Rights as the most recent statement of the international legal position, as well as General Comment 16 to the Convention on the Rights of the Child on state obligations UHJDUGLQJ WKH LPSDFW RI WKH EXVLQHVV VHFWRU RQ FKLOGUHQ·V ULJKWV

4.

Part C reviews international law, soft-law instruments, and country and business sector studies to identify ways in which the Brazilian government may fulfil its duty to protect children from sexual exploitation in the context of major construction projects. :H IRFXV RQ %UD]LO·V GXWLHV DV D state, rather than direct obligations of companies, because international law at present does not have concrete international rules that directly bind business enterprises. Nevertheless, business enterprises must conduct their operations in the context of a body of emerging human rights norms. These norms can be given concrete effect through measures taken by Brazil in the course of upholding its duties to protect human rights in the context of business activities. To that end, wH RXWOLQH D ¶VPDUW PL[· of measures Brazil may wish to explore in complying with its duty to protect. These measures include: 5

a.

Extending FRPSDQLHV¡ legal liability: The Brazilian government could strengthen existing legislation by imposing legal liability on companies for failing to take adequate steps to prevent the sexual exploitation of children. Penalties could be civil, criminal or administrative and include measures such as exclusion from entitlement to public benefits or permanent disqualification from the practice of commercial activities.

Companies could also be held liable for failing to report acts of child sexual exploitation committed by their employees;Íž

b.

Increasing the involvement of human rights institutions: Domestic human rights institutions could be given a greater role in investigating and making determinations about child sexual exploitation in the construction sector, as well as periodically reviewing the adequacy of legislation aimed at tackling child sexual exploitation;Íž

c.

Raising companies¡ DZDUHQHVV RI KXPDQ ULJKWV UHVSRQVLELOLWLHV: The Brazilian government should continue its efforts to make construction companies aware of their responsibilities to address child sexual exploitation;͞

d.

Developing a code of conduct for the construction sector: The government could assist construction companies in formulating professional codes of conduct targeted at combating the sexual exploitation of children, similar to initiatives undertaken by the hotel, tourism and travel sectors. It should also encourage more construction companies to sign up to existing initiatives and campaigns that tackle child sexual exploitation;Íž

e.

(QFRXUDJLQJ RU UHTXLULQJ FKLOGUHQ¡V ULJKWV GXH GLOLJHQFH The government could require or RWKHUZLVH LQFHQWLYLVH FRQVWUXFWLRQ FRPSDQLHV WR XQGHUWDNH VWULFW FKLOGUHQ¡V ULJKWV due diligence, which should include due diligence to prevent child sexual exploitation. Due diligence may include conducting impact assessments, adopting SROLFLHV WR SUHYHQW FKLOGUHQ¡V ULJKWV DEXVHV DGRSWLQJ PRQLWRULQJ DQG HYDOXDWLRQ procedures, reporting instances of child sexual exploitation, and publicising all HIIRUWV WDNHQ WR DGGUHVV YLRODWLRQV RI FKLOGUHQ¡V ULJKWV

f.

Using procurement contracts to secure compliance: The government should ensure that public procurement contracts for large-scale construction projects are awarded to those bidders that have demonstrated a commitment to addressing child sexual exploitation. One way the government may ensure this is by making procurement conditional on the successful bidder complying with a set of emerging international norms, such DV WKH &KLOGUHQ¡V 5LJKWV DQG %XVLQHVV 3ULQFLSOHV &5%3 7KLV would include the successful bidder being required to demonstrate the development and

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implementation of a child protection code of conduct.

Contracts should also

include express terms requiring companies to perform due diligence to prevent child sexual exploitation. The ongoing and planned construction projects in preparation for the FIFA World Cup and the Olympic Games offer an important opportunity to pilot these measures.

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INTRODUCTION 5.

Brazil is currently experiencing a construction boom, with many large-scale construction projects planned or in progress.1 These include the development of infrastructure for the 2014 FIFA World Cup and the 2016 Rio de Janeiro Olympic Games, the overhaul of transport networks, and the construction of the Belo Monte Dam, which will become the second-largest hydroelectric dam in the world on completion. These large-scale projects are largely statefinanced, or funded through public-private partnerships, although most of the construction work is carried out by private companies.2 These projects will make an important contribution to %UD]LO¡V HFRQRPLF JURZWK EXW WKH\ DOVR SRVH VLJQLILFDQW ULVNV WR KXPDQ ULJKWV LQFOXGLQJ WKH rights of children. As a result, UNICEF Brazil is currently working with the Brazilian government to develop strategies to mitigate the negative effects of these large-scale construction projects on children. An area of particular concern is the heightened risk of sexual exploitation of children.3

6.

UNICEF Brazil approached Oxford Pro Bono Publico (OPBP) for legal research to support its work with the Brazilian government. 2XU EULHI ZDV WR UHVHDUFK %UD]LO¡V GXW\ WR SURWHFW FKLOGUHQ from sexual exploitation during major construction projects, in light of the fact that these projects are largely operated by private construction companies.4 This report will be presented to the National Secretariat for Human Rights of the Presidency of the Republic of Brazil at a seminar to be convened later this year.

1. THE PROBLEM 7.

Child sexual exploitation,5 and commercial sexual exploitation6 in particular, are serious problems in Brazil. In its 2004 Concluding Observations, the UN Committee on the Rights of the Child 1

2 3 4 5

6HH IXUWKHU -RH /HDK\ œ%UD]LO¡V FRQVWUXFWLRQ ERRP RIIHUV VSRUWLQJ FKDQFH WR FLWLHV¡ Financial Times (London, September 2013) <http://www.ft.com/cms/s/0/266d8ace-ed41-11e2-8d7c00144feabdc0.html#axzz2koqaojU4> accessed 17 January 2014;͞ UK Trade and Investment, Game On: Progress in %UD]LO¡V 3UHSDUDWLRQV IRU WKH

),)$ :RUOG &XS (UKTI 2011) <http://www.coneq.org.uk/Brazil_docs11/Brazil_World_Cup2011.pdf> accessed 17 January 2014.

See Annexure A for a list of construction companies involved in the FIFA World Cup and Rio Olympics construction.

A child is defined as anyone below the age of eighteen, unless otherwise indicated. See art 1 of the Convention on the Rights of the Child (CRC).

See Annexure A. 7KLV UHSRUW DGRSWV WKH GHILQLWLRQ RI œFKLOG VH[XDO H[SORLWDWLRQ¡ XVHG LQ WKH 5LR GH -DQHLUR 'HFODUDWLRQ DQG Call for Action to Prevent and Stop Sexual Exploitation of Children and Adolescents, which uses the term to

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expressed its deep concern over the level of child sexual exploitation in the country.7 The seriousness of this problem is further reflected in former President Luiz Inåcio Lula da Silva¡V œUHPDUNDEOH GHFLVLRQ¡ WR prioritise the fight against child sexual exploitation during his time in office between 2003 and 2011.8 While accurate statistics are difficult to come by, it is widely acknowledged that child sexual exploitation remains rife.9 8.

Viewed in this context, major construction projects pose significant risks to children. There are no statistics available on the impact of construction projects on rates of child sexual exploitation in Brazil, but international observers have highlighted some of the risks. In his 2004 report on child sexual exploitation in Brazil, the UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography noted that child prostitution in Brazil was particularly rife in œDUHDV ZKHUH PDOH PDQSRZHU LV FRQFHQWUDWHG¡ HVSHFLDOO\ DURXQG ODUJH FRQVWUXFWLRQ VLWHV 10 The Brazilian Ethos Institute adds that child sexual exploitation is prevalent in the transportation and logistics sectors, industries which are integral to large-scale construction.11 In light of this pattern, the large-scale construction projects planned or under way in Brazil can be expected to pose significant risks, as they involve large, predominantly male workforces working in poor or underdeveloped areas. Effective responses to this problem will require further empirical work to determine the nature and extent of this risk. Nevertheless, this report proceeds from the assumption that there is a substantial risk and that efforts must be taken to address it.

6

7 8 9

10 11

UHIHU WR œDOO IRUPV RI VH[XDO H[SORLWDWLRQ DQG VH[XDO DEXVH RI SHRSOH XQGHU WKH DJH RI LQ DOO VHWWLQJV¡ :RUOG &RQJUHVVHV DJDLQVW &RPPHUFLDO 6H[XDO ([SORLWDWLRQ RI &KLOGUHQ œ5LR GH -DQHLUR 'HFODUDWLRQ DQG &DOO IRU $FWLRQ¡ (World Congress, 2008) <http://www.unicef.org/protection/Rio_Declaration_and_Call_for_Action.pdf> accessed 17 January 2014. œ&RPPHUFLDO VH[XDO H[SORLWDWLRQ¡ LV D IRUP RI FKLOG VH[XDO H[SORLWDWLRQ WKDW LQYROYHV œUemuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object.¡ :RUOG &RQJUHVVHV DJDLQVW &RPPHUFLDO 6H[XDO ([SORLWDWLRQ RI &KLOGUHQ œ6WRFNKROP 'HFODUDWLRQ DQG &DOO IRU $FWLRQ¡ :RUOG &Rngress, 1996) <http://www.csecworldcongress.org/PDF/en/Stockholm/Outome_documents/Stockholm%20Declaration% 201996_EN.pdf> accessed 17 January 2014. &RPPLWWHH RQ WKH 5LJKWV RI WKH &KLOG œ&RQFOXGLQJ 2EVHUYDWLRQV %UD]LO¡ 81 'RF CRC/C/15/Add 241 [64].

6SHFLDO 5DSSRUWHXU RQ WKH 6DOH RI &KLOGUHQ &KLOG 3URVWLWXWLRQ DQG &KLOG 3RUQRJUDSK\ œ5HSRUW RQ 0LVVLRQ WR %UD]LO¡ 81 'RF & &1 $GG > @ 6HH IXUWKHU 6HH IRU H[DPSOH &RPPLWWHH RQ (FRQRPLF 6RFLDO DQG &XOWXUDO 5LJKWV œ&RQFOXGLQJ 2EVHUYDWLRQV %UD]LO¡

UN Doc E/C12/BRA/CO/2 > @ &('$: &RPPLWWHH œ&RQFOXGLQJ 2EVHUYDWLRQ %UD]LO¡ 81 'RF CEDAW/C/BRA/CO/7 [20]. 7KLV UHSRUW DGRSWV WKH GHILQLWLRQ RI œFKLOG VH[XDO H[SORLWDWLRQ¡ XVHG LQ WKH Rio de Janeiro Declaration and Call for Action to Prevent and Stop Sexual Exploitation of Children and $GROHVFHQWV ZKLFK XVHV WKH WHUP WR UHIHU WR œDOO IRUPV RI VH[XDO H[SORLWDWLRQ DQG VH[XDO DEXVH RI SHRSOH XQGHU WKH DJH RI LQ DOO VHWWLQJV¡ :RUOG &RQJUHVVHV DJDLQVW &RPPHUFLDO 6H[XDO ([SORLWDWLRQ RI &KLOGUHQ œ5LR GH -DQHLUR 'HFODUDWLRQ DQG &DOO IRU $FWLRQ¡ :RUOG &RQJUHVV

<http://www.unicef.org/protection/Rio_Declaration_and_Call_for_Action.pdf> accessed 17 January 2014.

Special Rapporteur on the Sale of Child, Child Prostitution and Child Pornography (n 8) [19].

Ethos Institute, Business and Human Rights from the Decent Work Perspective (Ethos Institute 2011) <http://www1.ethos.org.br/EthosWeb/arquivo/0-A-272MarcoDeReferenciaINGLESsmallest%20(2).pdf> accessed 17 January 2014.

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9.

Existing academic and civil society reports on the human rights impact of large-scale construction projects in Brazil have largely overlooked this risk of child sexual exploitation.12 These reports have focused on problems of child labour, forced evictions and displacements, and disruptions of service delivery, among other issues. Where the problem of child sexual exploitation is discussed, it is linked with the rise in tourism connected with major sporting events, rather than the risks posed during the construction phase.13 As a result, this report seeks to address a notable omission in the existing discussions of major construction projects and FKLOGUHQ¡V ULJKWV LQ %UD]LO

2. NATURE AND SCOPE OF RESEARCH 10.

In light of the severe problem of child sexual exploitation, this report considers the Brazilian VWDWH¡V GXW\ WR SURWHFW FKLOGUHQ IURP VH[XDO H[SORLWDWLRQ LQ WKH FRQWH[W RI large-scale construction projects that are predominantly operated by private companies. Drawing on international and comparative law, we outline a range of measures that Brazil may adopt to protect children from sexual exploitation during these construction projects. This report does not seek to dictate precisely which measures should be adopted, as we recognise that the Brazilian government is best placed to decide on the most appropriate interventions that will effectively build on existing initiatives. Instead, this report seeks to stimulate further dialogue about how Brazil can take further steps to address this problem in furtherance of its duty to protect children from sexual exploitation.

11.

The report has been prepared by a team of twelve University of Oxford graduate students from seven countries, including Brazil, working under the supervision of Professor John Eekelaar. The research has benefitted from the wide-ranging expertise of our research team as each member has substantial experience researching and working on human rights issues at both the domestic and international level.

12

13

See Brunel University Centre for Sport, Health, and Wellbeing (BC SHaW), Child Exploitation and the FIFA World Cup: A review of risks and protective interventions (Brunel University 2013) <http://www.brunel.ac.uk/__data/assets/pdf_file/0008/316745/Child-Protection-and-the-FIFA-World-CupFINAL.pdf> accessed 17 January 2014;͞ Amnesty International, Annual Report: Brazil 2013 (Amnesty International 2013) <http://www.amnestyusa.org/research/reports/annual-report-brazil-2013?page=show> accessed 17 January 2014;͞ 1DWLRQDO &RDOLWLRQ RI /RFDO &RPPLWWHHV IRU D 3HRSOH¡V :RUOG &XS DQG 2O\PSLFV Mega-Events and Human Rights Violations in Brazil <http://rioonwatch.org/wp-content/uploads/2013/05/2012World-Cup-Olympics-Dossier-English.pdf> accessed 17 January 2014.

See BC SHaW ibid 20-26.

10

12.

This report is divided into three parts. In part $ ZH SURYLGH D EULHI RYHUYLHZ RI %UD]LO¡V OHJDO DQG non-legal responses to the problem of child sexual exploitation, focusing specifically on the construction sector. Part % FRQVLGHUV WKH %UD]LOLDQ VWDWH¡V LQWHUQDWLRQDO ODZ GXWLHV WR SURWHFW children from sexual exploitation. Part C reviews international law, soft-law instruments, and country and business sector studies to identify various measures that the Brazilian government may take to fulfil its duty to protect children from sexual exploitation in the context of major construction projects. In brief, these measures include: a.

extending companies¡ legal liability;͞

b.

increasing involvement of human rights institutions;Íž

c.

raising companies¡ DZDUHQHVV RI KXPDQ ULJKWV UHVSRQVLELOLWLHV

d.

developing a code of conduct for the construction sector;Íž

e.

eQFRXUDJLQJ RU UHTXLULQJ FKLOGUHQ¡V ULJKWV GXH GLOLJHQFH;͞

f.

using procurement contracts to secure compliance.

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A. %5$=,/·6 /(*$/ $1' 121-LEGAL RESPONSES TO CHILD SEXUAL EXPLOITATION 13.

Brazil has demonstrated a strong commitment to protect children from child sexual exploitation.

It is a signatory to a range of international human rights instruments14 that require states to protect children from sexual exploitation.15 It has also been at the forefront of international efforts to address child sexual exploitation as seen in its participation at the 1996 and 2001 World Congress against Commercial Sexual Exploitation and its hosting of the 2008 World Congress in Rio de Janeiro. In addition, Brazil has championed the emerging international norms on business and human rights as it is one of the few non-OECD nations to adhere to the OECD Guidelines for Multinational Enterprises16 which includes an undertaking to promote companies· human rights responsibilities. ThLV FRPPLWPHQW WR FKLOGUHQ·V ULJKWV DQG to companies· human rights responsibilities is reflected in the legal and non-legal measures that the Brazilian government has adopted to address the problem of child sexual exploitation. In this part, we will briefly outline these measures, focusing specifically on efforts to address child sexual exploitation in the construction sector.

1. LEGAL RESPONSES 14.

BUD]LO·V FRPPLWPHQW WR FKLOGUHQ·V ULJKWV LV reflected in the extensive legal protections contained in the Brazilian Federal Constitution17 (Constitution) and the Statute of the Child and Adolescent (ECA, its acronym in Portuguese).18 Article 227 § 4 of the Constitution and Art 4 of ECA both impose a duty on the family, society and the state to: [A]ssure children, adolescents, and youngsters, with absolute priority, the rights to life, health, food, leisure, professional training, culture, dignity, respect, freedom, family and community involvement, and to protect them from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.19 The Brazilian Supreme Court has not yet confirmed that the Constitution imposes duties on SULYDWH DFWRUV ZKDW LV WHUPHG ¶KRUL]RQWDO DSSOLFDWLRQ· . Nevertheless, Brazilian authors argue that 14 15 16 17 18 19

See Annexure B. See part B for further discussion of these duties.

See text to n 50 below.

Constitution of the Federative Republic of Brazil, 1988.

Federal Act n 8.069/90.

Constitution, Art 227 § 4;; ECA, Art 4.

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it ought to be interpreted in this way.20 The sweeping language of Art 227 § 4 of the Constitution³referring to the family, society, and the state³certainly supports this reading.

15.

The Brazilian Constitution states a strong commitment to addressing child sexual exploitation.

Article 227 § RI WKH &RQVWLWXWLRQ VWDWHV WKDW œWKH ODZ ZLOO SXQLVK VHYHUHO\ DEXVH YLROHQFH DQG sexual exploitation of children and DGROHVFHQWV¡ Article 244-A of ECA gives effect to this commitment by explicitly prohibiting child prostitution. It provides that œVXEPLWWLQJ D FKLOG RU DGROHVFHQW WR SURVWLWXWLRQ RI VH[XDO H[SORLWDWLRQ¡ VKRXOG EH SXQLVKHG ZLWK LPSULVRQPHQW between four and ten years. This punishment is also imposed on the owner, manager, or the individual in charge of the venue in which the child or adolescent was submitted to sexual exploitation. Apart from these cases, failure to prevent child sexual exploitation is not an offence. For instance, a construction company that is aware that its employees are paying to have sex with children off the company premises, but takes no steps to stop this is not currently held liable.21 This limitation may require further consideration in future law reform initiatives. In part C, we will discuss some of the options available to expand companies¡ OHJDO OLDELOLW\ IRU acts of child sexual exploitation committed by their employees.

2. NON-LEGAL RESPONSES 16.

Brazil has also adopted a range of non-legal responses to the problem of child sexual exploitation, such as the introduction of the National Day to Combat Sexual Abuse and Exploitation of Children and Adolescents.22 A number of government and civil society led initiatives are specifically aimed at private corporations to encourage them to address child sexual exploitation. For example: a. The Campaign against Sexual Exploitation of Children and Adolescents,23 a joint LQLWLDWLYH RI WKH 1*2 7HUUD GRV +RPHQV DQG WKH 3UHVLGHQF\¡V 1DWLRQDO 6HFUHWDULDW IRU +XPDQ 5LJKWV HQFRXUDJHV FRPSDQLHV WR VLJQ WKH œ'HFODUDWLRQ RI &RPPLWPHQW WR 20

21

22 23

Daniel Sarmento, Direitos fundamentais e relaçþes privadas. Rio de Janeiro: Lumen Juris (2004);͞ Virgílio Afonso da Silva, A constitucionalização do direito: os direitos fundamentais nas relaçþes entre particulares. São Paulo: Editora Malheiros (2005);͞ Wilson Steinmetz, A vinculação dos particulares a direitos fundamentais. São Paulo: Malheiros (2004).

See text to n 61 below for an example of this form of legal liability. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse requires states parties to take measures, in criminal law or otherwise, œto ensure that a legal person can be held liable where the lack of supervision or control by a natural pHUVRQ has made possible the commission of an offence established in accordance with this Convention¡ DUW

Federal Law 9.970/2000.

Campaign against Sexual Exploitation of Children and Adolescents, <http://www.empresascontraexploracao.com.br/?page_id=5> accessed 17 January 2014.

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$GGUHVV 6H[XDO ([SORLWDWLRQ RI &KLOGUHQ DQG $GROHVFHQWV¡ 'HFODUDWLRQ RI Commitment). The Declaration of Commitment includes an undertaking to make workers, suppliers, and clients aware of the problem of child sexual exploitation and how to report offences;͞ to incorporate efforts to address child sexual exploitation in corporate social responsibility (CSR) strategies;͞ and to include terms in contracts with suppliers explicitly condemning child sexual exploitation. OAS, a large construction company involved in construction projects for the FIFA World Cup, is one of the more than 130 signatories to the Declaration of Commitment and has launched a successful national awareness campaign, including plays and lectures on child sexual exploitation for its workers.24 b. In 2009, Odebrecht, a Brazilian conglomerate involved in various FIFA World Cup projects, signed an agreement with the then Minister of Social Development, stating that it would tackle child sexual exploitation within the company, and raise awareness of the issue amongst its employees.25 c. A number of Invepar companies, a Brazilian group involved in transportation infrastructure development and highway management, are signatories to the Na Mão Certa Programme,26 a civil society led initiative to encourage companies to publicly assume a commitment to tackle sexual exploitation of children on BrD]LO¡V KLJKZD\V 17.

These initiatives show a strong commitment to address the problem of child sexual exploitation.

In parts B and C, ZH ZLOO GLVFXVV %UD]LO¡V LQWHUQDWLRQDO ODZ GXW\ WR SURWHFW FKLOGUHQ IURP VH[XDO exploitation and we will identify various additional measures that Brazil may take in fulfilment of this duty. This discussion will offer suggestions how Brazil can build on its existing efforts to address child sexual exploitation in the context of large-scale construction projects.

24

25

26

6HH IXUWKHU 7HUUD GRV +RPHPV œ,QVWLWXWR 2$6 UHDOL]D JUDQGH FDPSDQKD FRQWUD D H[SORUDomR VH[XDO LQIDQWLO em REUDV H FRPXQLGDGHV HP WRGR R %UDVLO¡ &DPSDQKD &RQWUD D ([SORUDomR VH[XDO GH FULDQoDV H DGROHVFHQWV December 2012) <http://www.empresascontraexploracao.com.br/?p=1738> accessed 17 January 2014;͞ &RQVWUXWRUD 2$6 œ&DPSDQKD GH FRPEDWH j H[SORUDomR VH[XDO LQIDQWLO¡ $SULO

<http://www.youtube.com/watch?v=B6ZbmhBcyiQ> accessed 17 January 2014. $JHQFLD 6HQDGR œ0HVTXLWD Júnior elogia acordo entre governo e Odebrecht para coibir exploração sexual de PHQRUHV¡ VHQDGR JRY EU 0DUFK

<http://www12.senado.gov.br/noticias/materias/2009/03/13/mesquita-junior-elogia-acordo-entre-governo-eodebrecht-para-coibir-exploracao-sexual-de-menores> accessed 17 January 2014. œ1D 0mR &HUWD 3URJUDP¡ ,QYHSDU GDWH not given) <http://www.invepar.com.br/en/pages/na-mao-certaprogram/#.UhEF4ryE78Q > accessed 17 January 2014.

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B. INTERNATIONAL LAW 1. INTRODUCTION 18.

This part considers %UD]LO¡V international law duties to protect children from sexual exploitation.

This discussion is separated into five sections which explore different facets of this duty: an overview of the UN Guiding Principles of Business and Human Rights, a summary of the VWDWH¡V duty to protect in the context of the human rights impacts of private business, a discussion of WKH VWDWH¡V GXWLHV to protect in the context of child sexual exploitation, an outline of the OECD Guidelines for Multinational Enterprises, and a brief assessment of the extraterritorial dimension of the duty to protect.

2. THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS 19.

On 16 June 2011, the UN Human Rights Council unanimously HQGRUVHG WKH œ*XLGLQJ 3ULQFLSOHV on Business and Human Rights: Implementing the United Nations ´Protect, Respect and Remedy¾ )UDPHZRUN¡ (UN Guiding Principles).27 The UN Guiding Principles were developed by Professor John Ruggie, the Special Representative of the Secretary-General on Business and Human Rights. The UN Guiding Principles are not binding international law themselves.

Nevertheless, they neatly articulate states¡ existing international law duties and they document the emerging international norms on FRUSRUDWLRQV¡ KXPDQ ULJKWV UHVSRQVLELOLWLHV As the most comprehensive statement of stateV¡ responsibilities concerning the behaviour of corporate actors within their territory, the UN Guiding Principles are a useful starting point for framing the discussion of %UD]LO¡V GXWLHV

20.

The framework that is implemented by the UN Guiding Principles rests on three pillars:28 (i) The State Duty to Protect Human Rights (ii) The Corporate Responsibility to Respect Human Rights (iii) Access to Remedy

27

28

-RKQ 5XJJLH œ5HSRUW RI WKH 6SHFLDO 5HSUHVHQWDWLYH Rf the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. Guiding Principles on Business and Human Rights: ,PSOHPHQWLQJ WKH 8QLWHG 1DWLRQV ´3URWHFW 5HVSHFW DQG 5HPHG\¾ )UDPHZRUN¡ 0DUFK 81 Doc A/HRC/17/31 <http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles21-mar-2011.pdf> accessed 17 January 2014. ibid iii.

15

21.

The UN Guiding Principles state that these three pillars are grounded in the recognition of: (i)

6WDWHV¡ H[LVWLQJ REOLJDWLRQV WR UHVSHFW SURWHFW DQG IXOILO KXPDQ ULJKWV DQG fundamental freedoms. (ii) The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights. (iii) The need for rights and obligations to be matched to appropriate and effective remedies when breached.29 The scope of the UN Guiding Principles is comprehensive. 7KH\ œDSSO\ WR DOO 6WDWHV DQG WR DOO business enterprises, both transnational and others, regardless of their size, sector, location, RZQHUVKLS DQG VWUXFWXUH¡ 30 22.

The UN Guiding Principles, while addressing human rights generally, take on particular LPSRUWDQFH LQ WKH FRQWH[W RI FKLOGUHQ¡V ULJKWV TKH\ œVKRXOG EH LPSOHPHQWHG  ZLWK SDUWLFXODU attention to the rights and needs of, as well as the challenges faced by, individuals from groups or populations that may be at heighteQHG ULVN RI EHFRPLQJ YXOQHUDEOH RU PDUJLQDOL]HG¡ 31 Children are clearly an example of a group that are at heightened risk of becoming vulnerable or marginalised.

23.

This rHSRUW IRFXVHV RQ %UD]LO¡V GXWLHV WR SURWHFW FKLOGUHQ IURP VH[XDO H[SORLWDWLRQ LQ WKH FRntext RI PDMRU FRQVWUXFWLRQ SURMHFWV 7KLV IRFXV RQ %UD]LO¡V GXWLHV DV D state recognises the absence of international rules that directly bind business enterprises.32 Nevertheless, business enterprises must conduct their operations in the context of a body of emerging human rights norms, represented most clearly by the UN Guiding Principles. These norms can be given concrete effect through measures taken by the state in the course of upholding its duties to protect human rights in the context of business activities.

3. OVERVIEW OF S7$7(6¡ '87,(6 72 352TECT 24.

It is widely accepted that state obligations in international human rights law are both negative and positive. States must not only refrain from committing human rights violations themselves, but they must also take affirmative steps to ensure the protection of individuals from human rights violations committed by non-State actors, whether these are private individuals or multinational 29 30 31 32

ibid 1 (emphasis added). ibid. ibid. ibid 5-6.

16

businesses. The positive nature of this obligation to protect is confirmed by the first foundational principle of the UN Guiding Principles: States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication. 33

25.

The positive nature of this obligation to protect is also confirmed more specifically in the FRQWH[W RI FKLOGUHQ¡V ULJKWV DQG FKLOG VH[XDO H[SORLWDWLRQ The UN Convention on the Rights of the Child (CRC), which Brazil ratified in 1990, is the pre-eminent international instrument in this area.34 Under article 3(2) of the CRC, states parties accept D JHQHUDO REOLJDWLRQ WR œensure the child such protection and care as is necessary for his or her well-EHLQJ¡, while article 4 provides WKDW œstates parties shall undertake all appropriate legislative, administrative, and other measures IRU WKH LPSOHPHQWDWLRQ RI WKH ULJKWV UHFRJQLVHG LQ WKH SUHVHQW &RQYHQWLRQ ¡ Most relevantly in the context of child sexual exploitation, article 34 provides that: States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, states parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity;͞ (b) The exploitative use of children in prostitution or other unlawful sexual practises;͞ (c) The exploitative use of children in pornographic performances and materials.

26.

Brazil is also a party to the American Convention on Human Rights.35 Article 19 of the Convention provides that œHYHU\ PLQRU FKLOG KDV WKH ULJKW WR WKH PHDVXUHV RI SURWHFWLRQ UHTXLUHG E\ KLV FRQGLWLRQ DV D PLQRU RQ WKH SDUW RI KLV IDPLO\ VRFLHW\ DQG WKH VWDWH¡ The Inter-American Commission on Human Rights has confirmed, in the context of its periodic visits to Brazil, that article 19 includes an obligation to protect children from sexual exploitation.36

27.

Although there is no international convention that specifically requires states to regulate the construction industry in the context of child sexual exploitation, there are two International Labour Organisation conventions on child labour that are directly relevant in this context. Both

33 34 35 36

ibid 3.

Convention on the Rights of the Child (signed 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. ibid.

Inter-American Commission on Human RLJKWV œ5HSRUW RQ WKH 6LWXDWLRQ RI +XPDQ 5LJKWV LQ %UD]LO¡ DYDLODEOH http://www.cidh.org/countryrep/brazil-eng/chaper%205%20.htm accessed 17 January 2014.

17

Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour and Convention 138 Concerning Minimum Age for Admission to Employment impose positive duties upon Brazil (which has ratified both conventions) to take steps to protect children from economic exploitation, which includes sexual forms of economic exploitation. That economic exploitation and sexual exploitation are closely linked has been recognised by the Committee on the Rights of the Child. When it began examining country reports in 1993, it often considered articles 32 (economic exploitation) and 34 (sexual exploitation) of the CRC together. Clearly, measures taken by the State to reduce child labour in the construction sector are likely to have a positive impact on the reduction of child sexual exploitation.

4. THE SCOPE OF S7$7(6¡ '87,(6 72 352TECT 28.

As discussed above, the first foundational principle of the UN Guiding Principles requires states WR WDNH œappropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislatioQ UHJXODWLRQV DQG DGMXGLFDWLRQ¡. The CRC requires sWDWHV WR œtake all appropriate national, bilateral and multilateral measures to prevent¡ WKH OLVWHG IRUPV RI exploitation. The remainder of this part outlines the scope of what may be considered œDSSURSULDWH¡ measures in this context. Part C proceeds to discuss concrete examples of such measures.

4.1 $ œVPDUW PL[¡ of measures

29.

The UN Guiding Principles elaborate on how states can fulfil their duty to protect by providing œRSHUDWLRQDO SULQFLSOHV¡ UHFRPPHQGLQJ WKDW 6WDWHV VKRXOG 37 (a) (b) (c) (d)

37

Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps;Íž Ensure that other laws and policies governing the creation and ongoing operation of business enterprises, such as corporate law, do not constrain but enable business respect for human rights;Íž Provide effective guidance to business enterprises on how to respect human rights throughout their operations;Íž Encourage, and where appropriate, require business enterprises to communicate how they address human rights impacts.

Guiding Principles (n 27) 4.

18

30.

These operational principles highlight that a state¡s duty to protect is not restricted to imposing mandatory measures on corporations. In fact, the commentary to the UN Guiding Principles recommends implemeQWLQJ D œVPDUW PL[ RI PHDVXUHV¡ QDPHO\ a range of measures that are national and international, mandatory and voluntary.38

31.

The approach adopted in the UN Guiding Principles is echoed in the UN Committee on the Rights of the Child¡V General Comment 16 on the CRC, titled œ6WDWH REOLJDWLRQV UHJDUGLQJ WKH impact of the businesV VHFWRU RQ FKLOGUHQ¡V ULJKWV¡ 39 General Comment 16 also recommends a mix of mandatory and voluntary measures,40 akin to those outlined in the UN Guiding Principles, to ensure that corporations respect the human rights of children.

4.2 Heightened responsibility when there is direct public involvement in the business sector

32.

Both the UN Guiding Principles and General Comment 16 also recognise that states¡ GXWLHV DUH heightened when there is direct public involvement in the business sector. The UN Guiding Principles confirm that states are required to take œadditional steps¡ to protect against human rights abuses by corporations that are owned or controlled by the state or that receive substantial support from state agencies such as export credit, investment insurance or guarantee agencies. 41 As the commentary to the UN Guiding Principles recognises, where states own or control business enterprises, they KDYH WKH œJUHDWHVW PHDQV ZLWKLQ WKHLU SRZHUV WR HQVXUH WKDW UHOHYDQW policies, legislDWLRQ DQG UHJXODWLRQV UHJDUGLQJ UHVSHFW IRU KXPDQ ULJKWV DUH LPSOHPHQWHG ¡42 In terms of agencies linked formally or informally to the state and providing support and services to business activities, the commentary explains that states should encourage and in some FLUFXPVWDQFHV UHTXLUH WKHP WR FRQVLGHU WKH œDFWXDO DQG SRWHQWLDO DGYHUVH LPSDFWV RQ KXPDQ ULJKWV¡ RI WKH DFWLYLWLHV RI WKH EXVLQHVV HQWHUSULVHV 43

33.

In a similar vein, General Comment 16 recognises that states must not only protect but also WKHPVHOYHV UHVSHFW FKLOGUHQ¡V ULJKWV To that end, sWDWHV œshould not engage in, support or FRQGRQH DEXVHV RI FKLOGUHQ¡V ULJKWV ZKHQ LW KDV D EXVLQHVV UROH LWVHOI RU FRQGXFWV EXVLQess with

38 39

40 41 42 43

ibid 5.

81 &RPPLWWHH RQ WKH 5LJKWV RI WKH &KLOG œ*HQHUDO &RPPHQW State obligations regarding the impact of the businesV VHFWRU RQ FKLOGUHQ¡V ULJKWV¡

&5& & *& DYDLODEOH <http://www2.ohchr.org/english/bodies/crc/comments.htm> accessed 17 January 2014.

Examples of which are explored in Part C of this report, below. ibid 6.

UN Guiding Principles (n 27) 9. ibid.

19

private enterprises ¡44 General Comment 16 explains that states œPXVW WDNH VWHSV to ensure that SXEOLF SURFXUHPHQW FRQWUDFWV DUH DZDUGHG WR ELGGHUV FRPPLWWHG WR UHVSHFWLQJ FKLOGUHQ¡V ULJKWV¡ 45 In addition, sWDWH DJHQFLHV DQG LQVWLWXWLRQV œshould not collaborate with or condone the infringement of the rights of the child by third parties¡ 46 Finally, states œshould not invest public ILQDQFHV DQG RWKHU UHVRXUFHV LQ EXVLQHVV DFWLYLWLHV WKDW YLRODWH FKLOGUHQ¡V ULJKWV ¡47 34.

Given that a significant proportion of the large-scale construction projects currently in progress (including the construction of stadiums for the 2014 FIFA World Cup and the 2016 Olympic Games) are being funded publicly or through a public-private partnership,48 Brazil bears this heightened responsibility when dealing directly with the business sector.

5. THE RELATIONSHIP BETWEEN THE STATE DUTY TO PROTECT AND THE CORPORATE RESPONSIBILITY TO RESPECT 35.

As noted earlier, this report focuses on the duties of Brazil rather than the direct corporate responsibility of companies. While the duties of companies and states exist independently of one another, the corporate responsibility to respect and the state duty to protect do overlap. Where corporations fail to respect human rights, a state¡s failure to take appropriate steps to prevent, investigate, punish and redress such occurrences within its territory could result in a breach of its duty to protect.49

36.

Increasingly, states are adopting corporate social responsibility (CSR) policies that encourage responsible business practices. One of the most comprehensive government-backed recommendations on responsible business conduct is the OECD Guidelines for Multinational Enterprises (OECD Guidelines).50 In 2011, the OECD Guidelines were updated to include a specific human rights chapter consistent with the UN Guiding Principles. The relevant human rights principles in the OECD Guidelines provide: States have the duty to protect human rights. Enterprises should, within the framework of internationally recognised human rights, the international human

44 45 46 47 48 49 50

General Comment 16 (n 39) [26]. ibid [27]. ibid. ibid.

See Appendix A to this report for a list of construction companies involved.

John Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton & Company 2013) 101.

2(&' œOECD Guidelines for Multinational Enterprises¡ 2(&'

<http://www.oecd.org/corporate/mne/> accessed 17 January 2014.

20

rights obligations of the countries in which they operate as well as relevant domestic laws and regulations: 1. Respect human rights, which means they should avoid infringing on the human rights of others and should address the adverse human rights impacts with which they are involved.

2. Within the context of their own activities, avoid causing or contributing to adverse human rights impacts and address such impacts when they occur.

3. Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.

4. Have a policy commitment to respect human rights.

5. Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts.

6. Provide for or cooperate through legitimate processes in the remediation of adverse human rights impacts where they identify that they have caused or contributed to these impacts.51 37.

States adhering to the OECD Guidelines must set up National Contact Points (NCPs), which engage in promotional activities, handle enquiries, and provide a reporting mechanism where there is alleged non-observance of the Guidelines. These NCPs then report to the OECD investment committee annually. Although Brazil is a non-OECD country, it has subscribed to the OECD Guidelines since 1997, and formed an NCP in 2000 within the Ministry of Finance.

38.

We will return to discuss the OECD Guidelines in part C below, focusing particularly on the requirement to carry out human rights due diligence.

6. THE EXTRATERRITORIAL DIMENSION OF THE DUTY TO PROTECT 39.

Many of the companies involved in major construction projects are multinational in their scope. %UD]LO¡V GXW\ WR SURWHFW H[WHQGV WR WKHVH FRPSDQLHV E\ YLUWXH RI WKHLU SUHVHQFH LQ %UD]LO EXW %UD]LO¡V GXW\ WR SURWHFW PD\ DOVR RYHUODS ZLWK GXWLHV ERUQH E\ the states where these companies are incorporated.

40.

The commentary to the UN Guiding Principles records that while states are œgenerally not required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their terULWRU\  1RU DUH WKH\ DUH JHQHUDOO\ SURKLELWHG IURP GRLQJ VR provided there is a recognized jurisdictional basis¡.52 In fact, the UN Guiding Principles go on to

51 52

OECD ibid 31.

UN Guiding Principles (n 27) 7.

21

record as their second foundational principle that ¶states should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations·.53 41.

States have generally proved reluctant to exercise regulatory control over the operation of companies domiciled in their territory but operating abroad, although there is pressure to change. In respect of companies domiciled in Europe, the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse requires states to impose liability on corporate persons for sexual offences against children54 and provides that states must establish jurisdiction on an extraterritorial basis where the offence is committed by one of its nationals.55 The extraterritorial dimension of the duty to protect has also been recognised in the business and human rights context by the Human Rights Committee. In response to allegations of complicity with human rights abuses on the part of a German company in Uganda, the Committee, echoing the language of the UN Guiding Principles, ¶encouraged [Germany] to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations.·56

42.

This recognition of the extraterritorial dimension of the duty to protect has important consequences for the protection of children from sexual exploitation in the context of large-scale construction projects in Brazil. It means that the multinational companies involved in these construction projects may be subject not only to the regulatory control of Brazil when fulfilling its duty to protect, but also to the regulatory control of foreign states. This should not be seen as diminishing the scope of BrazLO·V GXW\ WR SURWHFW 7KH UN Guiding Principles make it clear in their first foundational principle that the primary duty lies on states to ¶protect against human rights abuse within their territory·. The extraterritorial dimension of foreign sWDWHV· GXWLHs to protect should thus be seen as complementing the primary duty of Brazil to protect children against sexual abuse in Brazil.

53 54 55 56

ibid.

For further discussion of the Convention, see para 46 below.

Article 25(1)(d).

Concluding observations on the sixth periodic report of Germany, adopted by the Committee at its 106 th session, 15 October to 2 November.

22

C. SPECIFIC MEASURES TO PROTECT CHILDREN FROM SEXUAL EXPLOITATION 43.

In this part, we outline some of the compulsory and voluntary measures that Brazil may adopt as SDUW RI D œVPDUW PL[¡ RI measures to protect children from sexual exploitation in the context of large construction projects. The UN Committee on the Rights of the Child emphasises that state LQWHUYHQWLRQV WR SURWHFW FKLOGUHQ¡V ULJKWV IURP WKH KDUPIXO HIIHFWV RI EXVLQHVV DFWLYLWLHV QHHG WR be evidence-led and should be based on impact assessments.57 As a result, we will not attempt to dictate a precise set of actions. Instead we will outline some options that may be adopted if considered appropriate in light of further empirical research.

44.

The compulsory and voluntary measures to protect children from sexual exploitation outlined here are drawn from international law instruments, general comments, soft-law instruments, comparative law, and examples of voluntary action taken in other business sectors to address this problem.

1. LEGAL LIABILITY OF COMPANIES 45.

Under the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography58 (Optional Protocol), to which Brazil acceded in 2006, state parties are required to ensure that companies DUH SURKLELWHG IURP œRIIHULQJ REWDLQLQJ SURFXULQJ RU SURYLGLQJ D FKLOG IRU FKLOG SURVWLWXWLRQ ¡59 However, there is no express duty on states under the Optional Protocol or international law more broadly to impose criminal, civil, or administrative penalties on companies whose workers have sexually exploited children where companies are not involved or otherwise complicit in these acts. Nevertheless, the Optional Protocol establishes a minimum level of required protection, and does not prevent states from imposing additional duties on companies.60

46.

One potential model for expanded legal liability is offered by the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, discussed briefly in

57 58 59 60

Above n 39 [53], [78]-[79].

Optional Protocol to the CRC (adopted 25 May 2000, entered into force 18 January 2002) 2171 UNTS 227.

Article 3(1)(b) read with art 3(4).

Article 3(1).

23

part B.61 Article 26(2) of the Convention provides that states SDUWLHV PXVW WDNH PHDVXUHV œto ensure that a legal person can be held liable where the lack of supervision or control by a natural pHUVRQ has made possible the commission of an offence established in accordance with this Convention ¡ 7KLV LQGLFDWHV WKDW WKH state has a duty to impose liability on companies for failing to take steps to prevent child sexual exploitation. The liability imposed may be civil, criminal or administrative and is without prejudice to the criminal liability of the natural persons who have committed the offence. Article 27(2) sets out a list of sanctions and measures that states ought to impose to ensure that legal persons are held liable in accordance with article 26. These include: a.

excluding companies from entitlements to public benefits or aid;Íž

b.

temporarily or permanently disqualifying companies from engaging in commercial activities;Íž

47.

c.

placing companies under judicial supervision;Íž

d.

imposing a judicial winding-up order.

Another option is to hold companies liable where they fail to report their employees to the authorities where they are aware or suspect that their employees have sexually exploited children.

For example, under the Indian Protection of Children from Sexual Offences Act, 2012 (POCSO), anyone who is aware or apprehends that an offence has been committed under the act is required to report this to the police.

2. OTHER JUDICIAL OR NON-JUDICIAL MECHANISMS 48.

General Comment 16 also sets out measures states should employ to ensure effective LPSOHPHQWDWLRQ DQG HQIRUFHPHQW RI ODZV UHJXODWLQJ EXVLQHVV LQFOXGLQJ œSURYLGLQJ HIIHFWLYH remedy through judicial and non-MXGLFLDO PHFKDQLVPV DQG HIIHFWLYH DFFHVV WR MXVWLFH¡ 62

49.

One way in which this could be achieved is by establishing an independent institution to oversee FRUSRUDWLRQV¡ FRPSOLDQFH ZLWK KXPDQ ULJKWV VWDQGDUGV RU E\ H[WHQGLQJ WKH PDQGDWH RI H[LVWLQJ institutions. For instance, in Thailand, the National Human Rights Commission has a mandate to ensure that public and private companies incorporated under the laws of Thailand comply with existing human rights standards.63

61 62 63

See para 41 above.

General Comment 16 (n 39) [61].

Constitution of the Kingdom of Thailand, ss 256-57.

24

50.

The Thai Human Rights Commission invoked the UN Guiding Principles in a recent report on human rights abuses committed by a Thai company in securing land for sugar production in Cambodia. The complainants alleged that Khon Kaen Sugar Industry Public Company Limited œ.6/¡ DFWLQJ WKURXJK LWV &DPERGLDQ VXEVLGLDULHV REWDLQHG WKH ODQG FRQFHVVLRQV LQ YLRODWLRQ RI human rights standards by illegally confiscating the land, following the use of force in evictions, the killing of livestock, and threats and serious intimidation. They also alleged that the impugned land concessions led to loss of food security and significant worsening of poverty. 64 The Thai +XPDQ 5LJKWV &RPPLVVLRQ KHOG LQ D SUHOLPLQDU\ UHSRUW WKDW œ.6/ KDV D UHVSRQVLELOLW\ XQGHU WKH [UN Guiding Principles] to respect human rights obligations in their business enterprise operations through subsidiaries in Cambodia, independent of the CambodLDQ JRYHUQPHQW¡V REOLJDWLRQV WR SURWHFW KXPDQ ULJKWV¡ 65 and it went on to find a violation of the right to life and self-GHWHUPLQDWLRQ DQG œD IDLOXUH WR XSKROG WKH SHRSOH¡V ULJKW WR GHYHORSPHQW ZKLFK LQFOXGHV their right to participate in, contribute to, and enjoy economic, social, cultural and political GHYHORSPHQW¡ 66

51.

Human rights institutions in Brazil could play a similar role in investigating and exposing human rights abuses in the Brazilian construction sector, particularly the sexual exploitation of children.

3. AWARENESS-RAISING 52.

In General Comment 16 on the CRC,67 the UN Committee on the Rights of the Child emphasises the need for states to develop education, training, and awareness raising programmes to make EXVLQHVVHV DZDUH RI FKLOGUHQ¡V ULJKWV DQG WKHLU UHVSRQVLELOLWLHV WR UHVSHFW DQG VXSSRUW these rights. The UN Guiding Principles further stress that the states have a heightened duty to promote awareness among businesses with which they have commercial links.68

53.

One important dimension of awareness-raising is for states to encourage businesses to comply ZLWK WKH HPHUJLQJ LQWHUQDWLRQDO QRUPV RQ FRUSRUDWLRQV¡ UHVSRQVLELOLWLHV WR UHVSHFW and support 64

65 66 67 68

Findings of the Subcommittee on Civil and Political Rights of the National Human Rights Commission of Thailand on the Koh Kong Sugar Cane Plantation case in Cambodia (25 July 2012) <http://www.boycottbloodsugar.net/wp-content/uploads/2012/07/NHRC-Findings-on-Koh-Kong-25July.pdf> accessed 17 January 2014 6HH DOVR %REELH 6WD 0DULD œ7KDL +XPDQ 5LJKWV &RPPLVVLRQ EOD]HV WKH WUDLO LQ KHDULQJ WUDQVQDWLRQDO KXPDQ ULJKWV FDVHV¡ 2FWREHU http://www.earthrights.org/blog/thaihuman-rights-commission-blazes-trail-hearing-transnational-human-rights-cases> accessed 17 January 2014.

Findings of the Subcommittee on Civil and Political Rights of the National Human Rights Commission (n 64) 2. ibid 3.

General Comment 16 (n 39) [82].

UN Guiding Principles (n 27) 6.

25

FKLOGUHQ¡V human rights. These norms are articulated in the CKLOGUHQ¡V 5LJKWV DQG %XVLQHVV Principles (CRBP),69 the first set of comprehensive standards for child-friendly business practices. The CRBP were developed by UNICEF, the UN Global Compact, and Save the Children with the aim of providing companies with guidance on a range of actions they can take LQ WKH ZRUNSODFH PDUNHWSODFH DQG FRPPXQLW\ WR UHVSHFW DQG VXSSRUW FKLOGUHQ¡V ULJKWV 54.

Principle 4 of the CRBP has the greatest relevance to the protection of children from sexual exploitation, requiring businesses to ensure the protection and safety of children in all business activities and facilities. It states that EXVLQHVVHV KDYH D UHVSRQVLELOLW\ WR UHVSHFW FKLOGUHQ¡V ULJKWV by: a. $GGUHVVLQJ VDIHW\ DQG SURWHFWLRQ ULVNV WR FKLOGUHQ¡V ULJKWV SRVHG E\ business facilities and staff in the course of business activities: i. Ensuring that company facilities are not used to abuse, exploit or harm children.  iii. 0DNLQJ FOHDU WR VWDII WKDW WKH EXVLQHVV¡V ]HUR WROHUDQFH SROLF\ IRU violence, exploitation and abuse applies in all business activities, even when conducted away from business facilities. iv. Taking appropriate action when concerns of possible violence, exploitation or abuse arise. 

55.

Principle 4 also states that EXVLQHVVHV PXVW VXSSRUW FKLOGUHQ¡V ULJKWV E\: b. Developing and implementing a child protection code of conduct: i. Developing a child protection code of conduct for business operations. ii. Ensuring awareness of and ongoing training on the code of conduct. iii. Recommending that a child protection code of conduct be developed E\ RWKHUV OLQNHG WR WKH EXVLQHVV¡V RSHUDWLRQV SURGXFWV RU services through a business relationship.

69

UNICEF, the UN Global Compact, and Save the Children, &KLOGUHQ¡V 5LJKWV DQG %XVLQHVV 3ULQFLSOHV (2012) <http://www.unglobalcompact.org/docs/issues_doc/human_rights/CRBP/Childrens_Rights_and_Business_P rinciples.pdf> accessed 17 January 2014.

26

56.

$V LQGLFDWHG LQ WKH GLVFXVVLRQ RI %UD]LO¡V QRQ-legal responses to child sexual exploitation above, Brazil has already adopted several awareness-raising campaigns. However, it appears that further work may be needed to expand the reach of these campaigns within the construction sector and to incorporate the CRBP into these campaigns.

4. CODES OF CONDUCT 57.

As noted in Part B, Principle 4 of the CRBP encourages companies to develop child protection FRGHV RI FRQGXFW WR VXSSRUW FKLOGUHQ¡V ULJKWV There are no codes of conduct relating specifically to the construction industry, and thus further work is needed to extend the CRBP campaign to that sector. In doing so, guidance may be sought from other industries which have adopted codes of conduct.

4.1

58.

Tourism Sector

The Rio de Janeiro Declaration70 arising from the Third World Congress against Commercial Sexual Exploitation of Children in November 2008 calls on states, inter alia, to support the tourism, travel and hotel sectors in adopting professional codes of conduct, for example by joining and implementing the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism (the Code).71

59.

The Code makes six key commitments designed to help ensure that industry participants combat rather than facilitate activities such as child sex tourism.72 7KH &RGH¡V PHPEHUVKLS³which includes tour agencies, hotels, motels, airlines and car rental companies³has grown rapidly, from around 40 in 2003-4 to more than 1,000 (across more than 40 countries) in late 2012.73

60.

The Code sets out the following principles for businesses to follow: a.

70

71

72

73

To establish a policy and procedures against sexual exploitation of children.

The Rio de Janeiro Declaration and Call for Action to Prevent and Stop Sexual Exploitation of Children and Adolescents, Third World Congress against Commercial Sexual Exploitation of Children, Rio de Janeiro, Brazil, 25-28 November 2008. ibid [16]. In 2004, an independent non-SURILW RUJDQLVDWLRQ DOVR FDOOHG œ7KH &RGH¡ ZDV FUHDWHG WR DGPLQLVWHU and advance the Code;͞ the organisation is funded by the Swiss Government and Code members, and is supported by UNWTO and by UNICEF. See ECPAT, Corporate Social Responsibility: Strengthening Accountability in the Fight Against Sexual Exploitation of Children, Special Edition, October 2012, 26 <http://resources.ecpat.net/EI/Publications/Journals/ECPAT%20Journal_OCT_2012.pdf> accessed 17 January 2014.

Leah McGee, œ&RPPHUFLDO 6H[XDO ([SORLWDWLRQ RI &KLOGUHQ &65 DQG D 0RYH WRZDUG $FFRXQWDELOLW\¡ 4 Corporate Social Responsibility: Strengthening Accountability in the Fight against Sexual Exploitation of Children 3, 4.

27

b.

7R WUDLQ HPSOR\HHV LQ FKLOGUHQ¡V ULJKWV WKH SUHYHQWLRQ RI VH[XDO H[SORLWDWLRQ DQG how to report suspected cases.

c.

To include a clause in contracts throughout the value chain stating a common repudiation and zero tolerance policy of sexual exploitation of children.

d.

7R SURYLGH LQIRUPDWLRQ WR WUDYHOOHUV RQ FKLOGUHQ¡V ULJKWV WKH SUHYHQWLRQ RI VH[XDO exploitation of children and how to report suspected cases.

e.

To support, collaborate and engage stakeholders in the prevention of sexual exploitation of children.

f.

61.

To report annually on their implementation of Code related activities.

The Code has achieved a number of important successes in raising the profile of the problem of commercial sexual exploitation of children, and of the positive role the travel and tourism sector can play in combating it. The Code has, for exaPSOH EHHQ LQWHJUDWHG LQWR &RVWD 5LFD¡V &HUWLILFDWH of Sustainable Tourism,74 and membership is compulsory to achieve fair trade tourism certification in South Africa and TourCert in Europe.75 A commitment to promoting subscription to the Code also forms part of the Declaration on the Prevention of Sexual Exploitation in Central America and the Dominican Republic, adopted by the Ministers of Tourism of Mexico, Belize, Guatemala, Honduras, Nicaragua, El Salvador, Costa Rica and the Dominican Republic in 2004.

62.

In India, the government also released a Code of Conduct for Safe and Honourable Tourism in 2010 to prevent prostitution, sex tourism and sexual exploitation of women and children. This prescribes guidelines for the tourism sector, including on information and training of personnel, public awareness, ethical business practices and marketing.76 Launched on 1 July 2010, the Code acquired nearly 250 signatories from the tourism fraternity.77

74

75

76 77

Patchareeboon Sakulpitakphon, œ$Q (YDOXDWLRQ RI WKH &RGH RI &RQGXFW IRU WKH 3Uotection of Children from 6H[XDO ([SORLWDWLRQ LQ 7UDYHO DQG 7RXULVP¡ 4 Corporate Social Responsibility: Strengthening Accountability in the Fight against Sexual Exploitation of Children 21, 24.

Francois Xavier Souchet, œ&RUSRUDWH 6RFLDO 5HVSRQVLEility and the Protection of Children from Sexual ([SORLWDWLRQ *RRG 3UDFWLFH ([DPSOHV¡ 4 Corporate Social Responsibility: Strengthening Accountability in the Fight against Sexual Exploitation of Children 1224.

0LQLVWU\ RI 7RXULVP œIncredible India: Code of Conduct for Safe and Honourable Tourism¡ (1 July 2010) <http://pib.nic.in/newsite/erelease.aspx?relid=62956> accessed 17 January 2014.

812'& œ,QGLD $ 3OHGJH Dnd Commitment for Safe and Honourable 7RXULVP¡

<http://www.unodc.org/southasia//frontpage/2010/october/a-pledge-for-safe-and-honourabletourism.html> accessed 17 January 2014.

28

63.

While the Code of Conduct and the steps taken by the Indian government relate to the tourism sector and not the construction industry specifically, these principles may provide useful guidance in developing a code of conduct for the Brazilian construction sector.

4.2

64.

Finance Industry

The finance industry has shown an increasing commitment to human rights, as seen in the formation of the Thun Group of banks, a loose coalition of banks committed to implementing the UN Guiding Principles.78 Another significant development is the creation of the Equator Principles, a code of conduct for financial institutions that seeks to ensure that projects financed by the institutions œare developed in a manner that is socially responsible and reflects sound environmental management practices¡.79 The principles, developed by the International Finance Corporation, are intended to operate as a œcommon baseline¡ IRU ILQDQFLDO LQVWLWXWLRQV¡ commitments to corporate social responsibility. The ten principles constituting the Equator Principles set up a framework for determining and managing environmental and social risk in projects, including due diligence standards. Signatories to the principles commit not to provide project finance or project-related corporate loans to certain identified categories of projects where the client will not, or is unable to, comply with the principles.80

65.

Significantly, as of June 2013, several new requirements were introduced to the Equator Principles that directly reflect the UN Guiding Principles. Equator Principle 2, entitled œEnvironmental and Social Assessment¡ provides: T]he EPFI [(Equator Principles Financial Institutions)] will require the client to FRQGXFW DQ $VVHVVPHQW SURFHVV WR DGGUHVV WR WKH (3),¡V VDWLVIDction, the relevant environmental and social risks and impacWV RI WKH SURSRVHG 3URMHFW Furthermore, in limited high risk circumstances, it may be appropriate for the client to complement its [Assessment] with specific human rights due diligence.81 Human rights due diligence will be discussed in further detail in the next section.

66.

There are currently 79 financial institutions that have adopted the Equator Principles, which covers over 70 percent of international Project Finance debt in emerging markets.82 Five of those 78

79 80 81 82

7KH 7KXQ *URXS RI %DQNV œ81 *XLGLQJ 3ULQFLSOHV RQ %XVLQHVV DQG +XPDQ 5LJKWV 'LVFXVVLRQ 3DSHU IRU Banks on Implications of Principles 16- ¡ 7KXQ *URXS http://www.csrandthelaw.com/wpcontent/uploads/2013/10/thun_group_discussion_paper.pdf> accessed 17 January 2013.

The Equator Principles, June 2013 available <http://www.equatorprinciples.com/resources/equator_principles_III.pdf> accessed 17 January 2014. ibid. ibid Principle 2.

7KH (TXDWRU 3ULQFLSOHV $VVRFLDWLRQ œ0HPEHUV DQG 5HSRUWLQJ¡ DYDLODEOH http://www.equatorprinciples.com/index.php/members-reporting> accessed 17 January 2014.

29

companies are Brazilian: Banco Bradesco SA, Banco de Brasil SA, Banco Pine SA., CAIXA Economica Federal, and Itaú Unibanco SA.

5. DUE DILIGENCE 67.

The UN Guiding Principles include as part of the corporate responsibility to respect human rights the requirement that business enterprises should ¶act with due diligence· to avoid infringing on the rights of others and to address the adverse impacts with which they are involved. The framework suggests that the following due diligence processes should be adopted by companies: human rights policies, human rights impact assessments, monitoring processes and auditing processes. Additionally, in circumstances where corporations are owned or controlled by the State or receive substantial support from State agencies, the Guiding Principles VSHFLILFDOO\ QRWH WKDW ¶UHTXLULQJ KXPDQ ULJKWV GXH GLOLJHQFH· PD\ FRQVWLWXWH RQH VXFK ¶DGGLWLRQDO VWHS· 6WDWHV VKRXOG WDNH to protect against human rights abuses by corporations.83

68.

As an adherent to the OECD Guidelines, Brazil has also undertaken to encourage companies to perform human rights due diligence. The Guidelines provide that companies should:³ Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts.84

69.

In the context of the rights of children, General Comment 16 provides further guidance on the measures that states should take to ensure that companies perform proper due diligence. General Comment 16 provides that states must establish a variety of legislative, regulatory and enforcement measures to ensure that the activities of business enterprises do not adversely impact on or violate the rights of the child. These include: a.

The principle that states should require businesses to undertake child-rights due diligence (a stricter process of due diligence and an effective monitoring system is required when there is a high risk of a business enterprise being involved in violations of human rights).85 This includes encouraging or requiring (where appropriate) large business enterprises to make public their efforts to address childrights impacts as a part of child-rights due diligence.86

83 84 85 86

Guiding Principles (n 27) 6.

OECD Guidelines (n 51) 31.

General Comment 16 (n 39) [62].

Ibid [65].

30

b.

The requirement that business enterprises publish the actions taken to ensure that the goods and services they produce or commercialise do not involve serious YLRODWLRQV RI FKLOGUHQ¡V ULJKWV VXFK DV VODYHU\ RU IRUFHG ODERXU.87

70.

For companies, Principle 8 of the CRBP requires WKDW EXVLQHVVHV UHVSHFW DQG VXSSRUW FKLOGUHQ¡V rights in security arrangements. The corporate responsibility to respect includes: a.

5HVSHFWLQJ FKLOGUHQ¡V ULJKWV LQ VHFXULW\ DUUDQJHPHQWV i.

When making and implementing security arrangements, whether with public or private security service providers, conducting human rights due diligence with particular attention to any adverse impact on the rights of children.

ii.

Ensuring that respect for the rights of children is explicitly addressed in the EXVLQHVV¡V VHFXULW\ FRQWUDFWV

iii.

Not recruiting or using children in security arrangements either directly or through private or public security service providers.

71.

India provides useful examples of how states may require or encourage private companies to perform due diligence. Prior to the Delhi Commonwealth Games, the Delhi Development Authority inserted clauses requiring private contractors to comply with child labour laws and refrain from hiring children under 14.88

72.

Additionally, in 2011, India, as a member of the Human Rights Council, co-sponsored Resolution 17/4 in 2011 endorsing the UN Guiding Principles. Expressly referring to this,89 the Indian Ministry of Corporate Affairs released the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business (NVGs) in July 2011 to ensure 87 88

89

Ibid [65].

Clause 19: The contractor shall also abide by the provisions of the Child Labour (Prohibition and Regulation) Act, 1986. Clause 19A: No labour below the age of fourteen years shall be employed on the work. See Delhi Development Authority, Chief Engineer, Commonwealth Games Zone, œTender Document for the Design and Construction of Roof Cover with White Colour /Translucent Both Sides Pvdf Coated Tensile Polyester Fabric over Swimming Pool, (2009) <https://dda.org.in/tendernotices_docs/aug09/DesignandconstructionROOFINGFORSWIMMINGPOOL.p df> accessed 17 January 2014 6HH DOVR 'HOKL 'HYHORSPHQW $XWKRULW\ &KLHI (QJLQHHU œConstruction of Swimming Pool, Training Hall and Fitness Center at Commonwealth Games Village -Balance Work¡

<http://dda.org.in/tendernotices_docs/nov09/NIT%20of%20Balance%20work%20at%20training%20vanue% 20.pdf> accessed 17 January 2014.

7KH JXLGHOLQHV H[SUHVVO\ VWDWH œ7KH SULQFLSOH WDNHV LQWR DFFRXQW WKH ´&RUSRUDWe Responsibility to Respect Human 5LJKWV¾ DV UHIHUUHG LQ WKH 8QLWHG 1DWLRQV ´3URWHFW 5HVSHFW 5HPHG\¾ Framework ¡ 6HH 0LQLVWU\ RI &RUSRUDWH $IIDLUV œNational Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business¡ (2011) 16 < http://www.mca.gov.in/Ministry/latestnews/National_Voluntary_Guidelines_2011_12jul2011.pdf> accessed 17 January 2014.

31

FRPSDQLHV œIXQFWLRQ UHVSRQVLEO\ ¡ 3ULQFLSOH RI LWV JXLGLQJ SULQFLSOHV VWDWHV œEXVLQHVVHV VKRXOG UHVSHFW KXPDQ ULJKWV¡ RI DOO UHOHYDQW VWDNHKROGHUV DQG QRW EH FRPSOLFLW to third party human ULJKWV DEXVHV ,W DOVR UHTXLUHV LQWHJUDWLRQ RI WKLV UHVSHFW LQWR EXVLQHVVHV¡ PDQDJHPHQW V\VWHPV and even makes a business case for it.90 73.

Based on these NVGs, on 13 August 2012 the Securities and Exchange Board of India mandated the top-100 listed companies to submit Business Responsibility Reports from an environmentalsocial-governance perspective considering public and stakeholder interest. 91 These listing conditions require companies to disclose for instance, the number of complaints relating to child/forced/involuntary labour and sexual harassment and stipulate whether the human rights policies of the company extends to the its contractors, suppliers, group companies etc.

74.

These examples provide just a small sample of the different strategies that Brazil could adopt to ensure that the construction sector performs due diligence aimed at preventing child sexual exploitation.

6. STATE PROCUREMENT 75.

As has been mentioned above, procurement contracts offer states an important means of ensuring that private companies take steps to limit their human rights impact. For instance, Brazil may require companies to engage in due diligence in accordance with the UN Guiding Principles as a condition of doing business with the state.

76.

,Q WKH FRQWH[W RI FKLOGUHQ¡V ULJKWV VSHFLILFDOO\ paragraph 27 of General Comment 16 requires States to ensure that public procurement contracts are awarded to bidders committed to UHVSHFWLQJ FKLOGUHQ¡V ULJKWV DQG WKDW 6WDWHV GR QRW LQYHVW SXEOLF ILQDQFHV in businesses that violate FKLOGUHQ¡V ULJKWV One way that Brazil may fulfil these requirements is by making procurement conditional on WKH VXFFHVVIXO ELGGHU¡V compliance with a set of emerging international norms

90

91

The business case made is that by following Principle 5 and ensuring human rights compliance, the possibility of litigation will be minimized and the business venture itself will become more attractive to customers, consumers and NGOs and hence, to investors.

Securities and Exchange Board of India, ÂśBusiness Sustainability Reports (Circular CIR/CFD/DIL/8/2012, 13 August 2012) <http://www.sebi.gov.in/cms/sebi_data/attachdocs/1344915990072.pdf> accessed 17 January 2014.

32

such as those contained in the CRBP. This would include the successful bidder being required to demonstrate the development and implementation of a child protection code of conduct.92 77.

Some states have taken measures relating to due diligence obligations as a condition of procurement. In the US, the Federal Acquisition Regulation requires that if a person seeks a government contract, it must certify that either: a.

It ZLOO QRW VXSSO\ FHUWDLQ W\SHV RI SURGXFW GHILQHG DV œHQG SURGXFWV¡ WKDW were mined, produced, or manufactured in one of the countries identified (being countries known to use indentured child labour);͞ or

b.

œ[A] JRRG IDLWK HIIRUW¡ has been made to determine whether forced or indentured child labour was used to mine, produce, or manufacturer any end product in the contract. On the basis of those efforts, the proposed contractor must certify that it is not aware of such child labour.93

78.

)XUWKHU LQ 6HSWHPEHU DQ ([HFXWLYH 2UGHU HQWLWOHG œ6WUHQJWKHQLQJ 3URWHFWLRQ $JDLQVW 7UDIILFNLQJ LQ 3HUVRQV LQ )HGHUDO &RQWUDFWV¡94 was issued by the President of the US designed to strengthen protections against trafficking in persons in government contracting. The Executive Order requires that, inter alia, where the estimated value of supplies acquired or services required to be performed outside the US exceeds $500,000, there must be a clause in the contract or subcontract requiring the contractor to PDLQWDLQ D œFRPSOLDQFH SODQ¡ ZKLFK PXVW LQFOXGH, inter alia, awareness programs to inform employees about policies ensuring employees do not engage in trafficking of persons.95

79.

Brazil may wish to consider adopting measures such as these to ensure that public procurement contracts are awarded to those construction companies that have a demonstrated commitment to addressing child sexual exploitation. The ongoing and planned construction projects in preparation for the FIFA World Cup and the Olympic Games offer a valuable opportunity to pilot these measures.

92 93 94 95

See paras 53-55 above.

48 CFR §52.212-3 (2012) Executive Order No. 13627, 77 Fed Reg 60029 (25 September 2012). ibid, sub-s 2(2)(A)(i)(I).

33

7. SUMMARY 80.

In summary, the œsmart mix¡ of voluntary and compulsory measures that Brazil may take to address child sexual exploitation in the context of large-scale construction projects include: a.

Extending companies¡ legal liability: The Brazilian government could strengthen existing legislation by imposing legal liability on companies for failing to take adequate steps to prevent the sexual exploitation of children. Penalties could be civil, criminal or administrative and include measures such as exclusion from entitlement to public benefits or permanent disqualification from carrying out commercial activities.

Companies could also be held liable for failing to report acts of child sexual exploitation committed by their employees;Íž

b.

Increasing involvement of human rights institutions: Domestic human rights institutions could be given a greater role in investigating and making determinations about child sexual exploitation in the construction sector, as well as periodically reviewing the adequacy of legislation aimed at tackling child sexual exploitation;Íž

c.

Raising companies¡ DZareness of human rights responsibilities: The Brazilian government chould continue its efforts to make construction companies aware of their responsibilities to address child sexual exploitation;͞

d.

Developing a code of conduct for the construction sector: The government could assist construction companies in formulating professional codes of conduct targeted at combating the sexual exploitation of children, similar to initiatives undertaken by the hotel, tourism and travel sectors. It should also encourage more construction companies to sign up to existing initiatives and campaigns that tackle child sexual exploitation;Íž

e.

(QFRXUDJLQJ RU UHTXLULQJ FKLOGUHQ¡V ULJKWV GXH GLOLJHQFH The government could require or otherwise incentivise construction companies to undeUWDNH VWULFW FKLOGUHQ¡V ULJKWV due diligence, which should include due diligence to prevent child sexual exploitation. Due diligence may include conducting impact assessments, adopting SROLFLHV WR SUHYHQW FKLOGUHQ¡V ULJKWV DEXVHV DGRSWLQJ PRQLWRULQJ DQG Hvaluation procedures, reporting instances of child sexual exploitation, and publicising all HIIRUWV WDNHQ WR DGGUHVV YLRODWLRQV RI FKLOGUHQ¡V ULJKWV

f.

Using procurement contracts to secure compliance: The government could ensure that public procurement contracts for large-scale construction projects are awarded to those bidders that have demonstrated a commitment to addressing child sexual exploitation. One way the government may ensure this is by making procurement 34

conditional on the successful bidder complying with a set of emerging international norms such as the CRBP. This would include the successful bidder being required to demonstrate the development and implementation of a child protection code of conduct.

Contracts should also include express terms requiring companies to

perform due diligence to prevent child sexual exploitation. The ongoing and planned construction projects in preparation for the FIFA World Cup and the Olympic Games offer an important opportunity to pilot these measures.

We hope that these suggestions will contribute to ongoing discussions about how to address the problem of child sexual exploitation during large-scale construction projects in Brazil. The Brazilian government has already made progress in developing interventions to address this problem. These suggestions are offered as a way to build on these interventions.

35

ANNEXURES ANNEXURE A: COMPANIES INVOLVED IN WORLD CUP AND OLYMPIC CONSTRUCTION* List of construction companies involved in construction of World Cup stadia -

Andrade Gutierrez

-

Galvão

-

Andrade Mendonça

-

OAS construction

-

Amsterdam Arenas

-

Odebrecht

-

Santa Bárbara

-

Mendes Júnior

-

Via Engenharia

-

Construcap

-

Egesa

-

Hap

-

Delta

-

Engevix

List of construction companies involved in projects related to the Olympic Games -­‐

Odebrecht

-­‐

Andrade Gutierrez

-­‐

Carvalho Hosken

-­‐

Port region:

-­‐

-­‐

OAS

-­‐

Carioca Engenharia

-­‐

Odebrecht

Bus rapid transport construction -

Odebrecht

-

Sanerio

36

-

-

Andrade Gutierrez

-

Invepar

-

Odebrecht Transportation

-

CCR

MaracanĂĄ stadium -

Odebrecht

-

Andrade Gutierrez

* Sources: UK Trade and Investment, *DPH 2Q 3URJUHVV LQ %UD]LO¡V 3UHSDUDWLRQV IRU WKH ),)$ :RUOG &XS (UKTI 2011) <http://www.coneq.org.uk/Brazil_docs11/Brazil_World_Cup2011.pdf> accessed 17 January 2014.

86 &RPPHUFLDO 6HUYLFH œ :RUOG &XS DQG 2O\PSLF *DPHV LQ %UD]LO¡ 86&,

<http://www.nccommerce.com/Portals/5/Documents/ITD/World%20CupOlympic%20Report.pdf> accessed 17 January 2014.

37

ANNEXURE

B:

%5$=,/路6

5(/(9$17

,1TERNATIONAL

OBLIGATIONS International and regional instruments Instrument

Date Signed / Ratified Acceded to International Covenant on Civil and Political Rights Acceded to 24 January 1992.

/

(ICCPR) International Covenant on Economic, Social and Cultural Acceded to 24 January 1992.

Rights (ICESCR) Convention on the Elimination of All Forms of Signed 31 March 1981, ratified 1 Discrimination Against Women (CEDAW)

Feb 1984.

Convention on the Rights of the Child (CRC)

Signed 26 January 1990, ratified 24 September 1990.

Optional Protocol to the CRC on the Sale of Children, Signed 6 September 2000, ratified Child Prostitution and Child Pornography (Optional 27 January 2004.

Protocol) American Convention on Human Rights

Acceded to 9 July 1992.

ILO Convention 182 Concerning the Prohibition and Ratified 2 February 2000.

Immediate Action for the Elimination of the Worst Forms of Child Labour ILO Convention 138 Concerning Minimum Age for Ratified 28 June 2001.

Admission to Employment

Soft-law instruments Instrument Date Stockholm Declaration and Calls for Action to Prevent and 1996.

Stop Sexual Exploitation of Children and Adolescents adopted at the World Congresses against Commercial Sexual Exploitaition of Children Yokohama Declaration and Calls for Action to Prevent and 2001.

Stop Sexual Exploitation of Children and Adolescents Rio de Janeiro Declaration and Calls for Action to Prevent 2008.

38

and Stop Sexual Exploitation of Children and Adolescents OECD Guidelines for Multinational Enterprises

Updated Guidelines adopted 25 May 2011.

39