2019 Vol. 2, Issue 1


DOUBLE INFLUENCE AND DUAL PROJECTION BETWEEN GLOBAL AND LOCAL: THE "MARIANA CASE" AND THE SOCIAL (IR)RESPONSIBILITY OF MINING COMPANIES

Release date:2019-07-21
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DOUBLE INFLUENCE AND DUAL PROJECTION BETWEEN GLOBAL AND LOCAL: THE "MARIANA CASE" AND THE SOCIAL (IR)RESPONSIBILITY OF MINING COMPANIES

 

Jânia Maria Lopes Saldanha[1] & Clara Rossatto Bohrz**

 

 

ABSTRACT: The article aims to analyze the double influence of the global on the local in face of the close and ambiguous relations between economy and the law, as well as to demonstrate the double projection of the place of the global, either from the perspective of the (ir)responsibility of the transnational companies involved in the Mariana case, or from the mapping of human rights violations of Vale SA around the world. The dialectic method of approach and the bibliographic and documentary method of procedure were used, with emphasis on reports and documents from research groups and civil society organizations. Among the conclusions, it was verified that the political-economic interests contributed to the State's bad performance before and after the tragedy - from the elaboration of the New Mining Code to the agreement signed extrajudicially between the companies and the government for the indemnification and support of the victims. However, the Brazilian tragedy only reflects the height of Vale's social irresponsibility in relation to other focuses of resistance in the world, notably Chile, Mozambique and Canada. Finally, private mechanisms for the protection of human rights - such as codes of conduct - are fragile, the national mechanisms are insufficient, and the need for transnational corporations to be subject of international public law is urgent.

KEY WORDS: Corporate Social Responsibility - Mariana - Mining

 

O Rio? É doce.

A Vale? Amarga.

Ai, antes fosse

Mais leve a carga.

 

Entre estatais

E multinacionais,

Quantos ais!

 

A dívida interna.

A dívida externa

A dívida eterna. [...] (Carlos Drummond de Andrade, 1984)

 

I. Introduction

The poem “Lira Itabirana” by Drummond, published in 1984 on the Jornal Cometa Itabirano news, became an omen on November 5, 2015. In Mariana, a small town in the state of Minas Gerais, the largest social-environmental tragedy in the history of Brazil took place: the breaching of the “Fundão” dam, which belongs to the “Germano” mining complex of the Samarco Mineração S.A. joint venture[2], a group whose shareholders are the Brazilian Vale S.A. and the Anglo-Australian BHP Billiton. The mud composed of waste coming from ore mining completely destroyed the district of Bento Rodrigues, as well as other districts of Mariana – such as Águas Claras, Ponte do Gama, Paracatu and Pedra, besides the towns of Barra Longa and Rio Doce. Furthermore, the waste was taken by the Doce River, affecting tens of towns from eastern Minas Gerais as far as the state of Espírito Santo.

Twelve seconds were enough to devastate Mariana with toxic mud composed of several heavy metals, such as arsenic and lithium. Populations were forced to leave the remains of their homes and there was the destruction of houses, buildings, bridges, streets, pasture and agricultural areas, preservation areas and Mata Atlântica native vegetation. The power supply was interrupted by all hydroelectric power plants hit (Candonga, Aimorés and Mascarenhas) as well as water sanitation, fishing, tourism, school activities and many others. The environment suffered the death of the aquatic biodiversity and land fauna, the silting of watercourses and the alteration of quality standards in fresh, brackish and salt waters (IBAMA, 2015). In the accident, 19 people lost their lives. According to the biologist Augusto Rischi, the magnitude of this tragedy is only comparable to the Fukushima accident (ARAÚJO, 2015).

The Brazilian photographer Joka Madruga, who was in that region for 20 days in order to register the event, reported that “some people were even against the company paying for the damages, as it could lead to the bankruptcy of Samarco”, illustrating the economic, social and even affective bond of the residents towards the company (FSM, 2016). In reality, such dependence to the company may be explained by the high level of social inequality in the town of Mariana, leading the most vulnerable to submit to the accident hazards from activities such as mining, endure the difficult working conditions and accept the reduction of diversity in the economic structure these activities usually bring.

After over a year since the tragedy, the Portela school, in the traditional Rio de Janeiro Samba Schools Special Group parade, presented the theme of Brazilian rivers, dedicating a whole wing to Mariana, called “Um rio que era Doce (A river that was fresh)”. The school was chosen the winner of the parade that year.

 


Wing “Um Rio Que Era Doce (A river that was fresh)” – Portela Samba School/ Rio de Janeiro. Image by: RioTur/Fotos Públicas

 

This paper aims to discuss the Mariana environmental disaster as a fact which evidences the double influence of the global in the local in face of the close and ambiguous relations between economy and the law (II). Furthermore, the paper aims to demonstrate the double projection of the local in the global, either from the perspective of the (ir)responsibility of transnational companies in the concrete case, or from the (ir)responsibility of transnational companies from a global viewpoint (III).

 

II. The double influence of the global in the local: between economy and the law

The globalization of world production taken to effect by transnational companies is not a new concept. Since the 80’s numberless authors discussed the theme, especially before the rise of a new world division in work. Transnational companies swiftly became the leading agents of the new world economy, which has as most expressive traces the ownership of international financial capital, the investments in global scale, flexible and local production processes, deregulation of national economies, among others. The Mariana tragedy may be seen, thus, as a microcosm of the influence of economy over politics and over the law (A) and, on the other hand, of the law abdicating its autonomy by becoming hostage to the interests of economic groups (B).

 

A. The power of economic reason over the law

One of the grave problems pointed out by Castanheira Neves is the double crisis which the law now experiences: meaning and autonomy crisis (CASTANHEIRA NEVES, 2002). The meaning crisis happens because formal law became alienated from social reality, neglecting the problems presented by the latter. The autonomy crisis happens in face of the function law plays in relation to economics and politics. Law has become a formal systematicity, indifferent to material normative contents, with its concrete historicity and problematicity. Social ethics was reduced to empty axioms, reproducing only hegemonic interests. The projection of the global economy logic regarding the meanders of the Mariana case (a)) and the project of legislation changes in the mining sector in Brazil are concrete examples of this meaning and autonomy crisis (b))

 

a) The projection of the global economy logic in national politics

The most immediate effect before the enormity of the hecatomb was the search for the causes which led to it. Some say that the tragedy occurred because of the company being controlled by Vale do Rio Doce, formerly a state-controlled company, sold to the private sector during the presidency of Fernando Henrique Cardoso. However, this line of thought, besides being feeble, does not express the whole complexity of the matter, behind which lies the logic of profit and the search for easy money that, by its dimension, transcend the division between public and private. Thus, driven by the thirst for maximum profit, both private companies may stop investing in adequate infrastructure projects for environmental safety and maintenance of the quality and safety of work; and state companies may have members acting on negligence, deviating funds for the aforesaid projects or simply acting on improbity. The disastrous truth of the matter is that neither model is exempt from corruption. The Uraniun mine explored by the state company Indústria Nucleares do Brasil S/A based in Caetité, Bahia and the high level of contamination by radioactivity in the water of that region stand as example of such issue (GREENPEACE, 2009). And, though there is a notorious shadow cast over the privatization of Vale do Rio Doce in 1997, due to the more than 100 lawsuits filed to nullify the sale of the company (INSUSTEN, 2015, P.16) and the “lack of political willingness to see in Brazilian hands the riches produced in the country” (MARTINS, 1997), this paper does not aim to discuss a hypothetical plan in which the company was public, but reflect, under this reality of privatizations, on which functions the State should perform: oversight or, if failing in such attribution, the means of reducing the effects of the tragedy.

Also, the fact which cannot be forgotten is that many private mining companies also finance political campaigns, receiving, in return, parliamentary facilitation, such as the possibility of formulating the bill number 5.807/2013, replacing the current Code of Mining, according to the interests of those funding it. This bill received special processing in the House of Congress in June 2013, in virtue of the “constitutional urgency presented to the House” (CÂMARA, 2013).

A note worth mentioning is that for the 2014 national elections, despite the change in donation strategies – when political parties used to receive more donations, whereas now candidates receive so – the main political parties PMDB, PT and PSDB received from the mining sector approximately 21.7 millions[3]. The second mining company to most finance parties was precisely Vale S.A., considering that up to recently, such financial incentives were permitted. (OLIVEIRA, 2014, 14-15). In 2015, the Federal Supreme Court (STF) judged the Direct Action of Constitutionality number 4650 (STF, 2011) proposed by the Brazilian Bar Association, deciding for the unconstitutionality of private funding in political campaigns, a decision which obtained the support from the Executive and, after some effort, from the National Congress (CÂMARA, 2015a). However, this alteration started to run in effect at the 2016 elections (after Mariana) – and, evidently, that change means no guarantee against corruption and outside influences in lawmaking, as perceived in the New Mining Code.

The actions of national or transnational mining companies mirror the global logic of profit and the concentration of world commerce in such a strategic area, in the hands of a few. That is the expression of a global phenomenon which proves the close bonds between private mining companies and governments of states, in general, politically and economically weak; and thusly the phenomenon becomes local. The yearn for profit, added to the willing of control in areas that are relevantly productive to the world market, as are information technology or the arms industry, favor political corruption practices that, often, lead to serious violations of human rights.

A report disclosed in 2014 by the OCDE demonstrated that, in the analyzed period, extractive companies, amongst which are mining companies, were the most sanctioned in reason of transnational corruption practices, taking the top of 19% (OCDE, 2014, p.8 and p.23). The report indicates that these companies are in the “select” group which has the greatest preponderance of corruption practices in foreign countries.

The mineral riches of the planet are largely located in poor countries run by populist governments. Studies by Transparency International published in the Corruption Perception Index 2016 prove the close bond between the corruption practiced by such governments and administrators of mining companies, presenting as most perverse consequence the production and increase in social inequalities (TRANSPARENCY, 2017).

A study performed by researchers from Osgood Hall Law School, in Canada, about the actions of Canadian mining companies in Latin America, found that these companies practice geographically generalized violence which involves different types of people –farmers, women, children, human right defenders, cops. Often, the research pointed, the violence practiced is selective, which means the victims are previously chosen.

In addition, with the approval of the States, protest movements against the actions of these companies are, invariably, criminalized. The violence perpetrated by Canadian mining companies is regarded as part of the business and even, presupposed for them, as they recognize (SSRN, 2017).

This global issue impacts intensely on the national/local plan. The influence of the sector over the actions of parliamentary agents in order to obtain the passing of laws which are favorable to their interests is so present it is beyond imaginable. The closest example is the Bill for the Mining Code which is in process at the National Congress. The normativity becomes mirror to these strategic economic interests.

 

b) The mirror-normativity: the political-strategical outlook in the backstage of the Bill for the New Mining Code

The scenery of the formulation of the New Mining Code is foggy. Starting by the fact that the official document of bill 5.807/2013, reported by Leonardo Quintão (PMDB-MG) and which defines the new regulatory mark for the mining sector in Brazil, was found altered in computers of Pinheira Neto Law Firm, which has Vale and BHP as clients (SENRA, 2015). Furthermore, the position of Leonardo Quintão as rapporteur of the New Code bares no legitimacy, for the subsection VII of Article 5 in the Chamber Ethics Code states that is injurious for parliamentary decorum “to report a subject submitted to the appreciation of the Chamber of Congress, related to person or entity which has contributed for the financing of one’s election campaign” (BRASIL, 2001).

The production of this legislative text opened no space for the participation of civil actors, such as civil society, social movements and union entities of the sector (CÂMARA, 2015b). According to Carlos Bittencourt, historian and researcher at the Brazilian Institute of Social and Economic Analysis (IBASE), during interview granted in July 2013 (BITTENCOURT, 2013):

The current Code is from 1967, the government has been debating the new proposition for the past four years. But why now does the Legislative power and civil society have only 90 days (45 days in each Legislative House) to debate and reach conclusions? During the four years of its making, the proposition was kept in secrecy. Looking through this perspective, it’s only possible to see the regime of urgency as an act against the debate and civil participation. [...] not to see how much the Brazilian public and private strategy of mineral exploration is based on the dillapidation of territories, of  ore national reserves and  reprimarization of our economy. If there is urgency, it is market urgency. Democracy demands rhythms of debates completely different from rhythms of the market.

In this sense, a social-environmental perspective was supplied according to the communities affected by the mining sector who, in May 2013 in Brasilia - with more than 120 organizations, among social, environmental movements, NGO’s, unions and research groups - launched the “National Committee in Defense of Territories Against Mining” intending to articulate forces to face the debate over the reform of the mining code (INESC, 2013). The committee even distributed a booklet during one of the meetings of the Special Commission (IS, 2015), a few months after presenting bill 5.807/2013, detailing number by number the financing of election campaigns on behalf of major mining companies (OLIVEIRA, 2014) made by the National Committee in Defense of Territories Against Mining, authored by Clarissa Reis Oliveira.

In 2014, a clearer mapping of the donations was done, since there was a change in the format of accountability: companies used to make donations to parties who would pass them over to the candidates, masking this process – donations are now made only on behalf of the original donor. On this booklet, the bias of congress rapporteur Leonardo Quintão is clear, as he received, in 2010, 400 thousand (R$), 20% of his Total Campaign Budget (TDC in Portuguese), and just a little more than 2 million (R$) in 2014 (40% of his TDC). However, Quintão is not the only one. Not only the chairman of the Special Comission then Congressman Gabriel Guimarães (PT-MG) – who received 20% of his TDC – but also congressman Guilherme Mussi (PP-SP) – with alarming 77% of his TDC – only 7 out of the 27 members composing the Comission did not receive any donations from companies associated to mining (OLIVEIRA, 2014 p.12).

Bill 5.807/13 was attached to bill 37/2011 (CÂMARA, 2011) – by Congressman Weliton Prado (PT-MG), who had 16% of his TDC originated from the mining sector (OLIVEIRA, 2014, p.11). And in February 3, 2016, the same day in which the SOS Mata Atlântica Foundation presented a technical report on the terrible water conditions of the Doce River to the Environment Parliamentary Front, congressman Laudívio Carvalho (PMDB-MG) was appointed as the new project rapporteur (CÂMARA, 2016).

In 2017, while the country was taken by storm by one of the most severe political crisis ever experienced in its history and bill 37/2011 awaited the deliberation of the plenary, Brazilian Minister of Mines and Energy, Fernando Coelho Filho announced the withdrawal of the project from the House of Congress as well as its reappearance by the Executive in three separate propositions: “It’s necessary to have a definition. Worse than having a good or a bad code is not knowing what you’ll have. It’s this doubt that kills the decision taking for investment” (WARTH AND TEREZA, 2017). But despite the market interests, one of the major concerns of civil society is that, although the text predicts an increase in government revenue over mining royalties, some environmental and social aspects are not discussed. For Maria Zanon, anthropologist and coordinator of MAB, “if approved on the terms as it is, the condition of being a subordinate country exporter of prime matter will grow deeper, intensifying the extraction of natural assets and the super-exploitation of the mining workers” (ZANON, 2017).

Something noteworthy is the fact that, when it comes to topics which privilege profitable sectors in Brazil – as is mining -, “legislative acrobatics” are made to assure the haste or delay on voting some laws; the participation or ignorance of popular movements; the representation of the people or the companies. However, such practices do not escape the eyes of organizations from civil society, as with Conectas Human Rights (CONECTAS, 2016), who along with other 15 petitioner organizations presented, on June 8, in Santiago, Chile, a complaint to the Brazilian government to the Inter-American Comission on Human Rights (IACHR).

 

B. The power of legal reason over economy

The fragile national instances to brake the violations of human and environmental rights made by Samarco led to the Inter-American protection system to take action (a)). After all, internally, the legislation that allows for solutions of collective damages by means of extrajudicial instruments, in face of the asymmetry between the parts, may be instrumentalized, on the one side, to cover up for said violations and their effects and, on the other side, to perpetrate the damages in face of insufficient reparations (b)).

 

a) The actions of the Inter-American System of Human Rights: the thematic hearing at IACHR and the state in check

On the public hearing occurring in Chile, Brazil had to answer to why it has been failing at the prevention of human rights violations by mining activity. The hearing was marked by the dissatisfaction of the organizers towards the measures adopted and defended by the Brazilian state as reparations for the Mariana Case (IACHR, 2016a, p.4). The document states that the affectations take place not only when there is “intercurrence” in the projects, but also when things happen according to expected (IACHR, 2016b, p.1). In other words, normality is viewed when companies violate some rights – such as housing, worthy employment, life, among others – and obtain exorbitant profits without caring for the social development of those who work there, besides receiving fiscal incentives by the government. The Kandir Law, for instance, in force in Brazil since 1996, exempts the products and services destined for exportation from taxation over Circulation of Merchandise and Services (ICMS). That is the case of the State of Minas Gerais, which according to studies by the Social-Economic Studies Institute forfeited from 1997 to 2013 a revenue of approximately 12.5 billion (R$) – being left with just a compensation by the Union worth of 4.4 billion (R$) (INESC, 2015, p11).

 

(1) The criticism of IACHR to the flexibilization of environmental licenses

IACHR not only highlighted the State responsibility for the large financing and structure of mining companies issued by the Brazilian Development Bank (BNDES) and by tax exemption, but it also comments on the dangers of the flexibilization of environmental licenses and the precariousness of the licensing and supervisory bodies of mining activity (IACHR, 2016, p.3). The Constitutional Amendment Proposition 65/2012 (SENADO, 2012), made by congressman and businessman Acir Gurgacz (PDT-RO) – whose business acting also happens in the mining sector – states in its original text, the adding of §7 to art.225 of the Federal Constitution (BRASIL, 1988) which comes to harm the protection to balanced environment, an asset of public domain essential to a healthy life quality and also lessens the duty of the public power to defend it and preserve it for future generations (art.225, caput). The item states: “The presentation of the preliminary environmental impact assessment (PEIA) brings forth authorization for the execution of the work, which may not be suspended or cancelled for the same reasons unless in face of being subsequent”.

In a technical report to the Amendment Project 65/12 released on May 3, 2016, the Federal Public Ministry (MPF)[4] reiterates the right to an Ecologically Balanced Environment as an Eternity Clause and the Principle of Prohibition to Environmental Regression (MPF, 2016a, p.5):

In relation to the theme, we position ourselves in conformity to the lesson of Antônio Augusto Cançado Trindade, according to which the appreciation of the parallel evolution of the protection system to human rights and the so-called ‘sub-system’ of environmental protection, both representative of two of the greats from our time lead, in the end, to the conclusion that the right to a healthy environment integrates the expanded roster of human rights, with fundament in the principle of solidarity.

The IACHR highlights the importance of the public hearing after the presentation of the preliminary environmental impact assessment by the entrepreneur and before the emission of environmental licenses for major works, considering the importance of social participation in the licensing according to the legal order in force (2016a, p.12). Paradoxically, the Amendment Project 65/2012 passed in its first run by the Senate Comission on April 27, 2016 (BORGES, 2016), only six months after the Mariana disaster, which (in)directly hit 3.2 million people (VALE DE LAMA, 2015, p.4).

Other than that, Senate Bill (PLS) 654/2015 (SENADO, 2015a) is being processed, authored by Senator Romero Jucá (PMDB – RO)[5], and eliminates the mandatory public hearings with people impacted by the enterprises and also imposes tight deadlines for organs which aid in the licensing processes, such as FUNAI (National Foundation for the Indigenous People) and the Chico Mendes Biodiversity Conservation Institute (ICMBio).

On this aspect, the global problem of disregarding nature rises to the surface (NEYRET, 2015, p.127-8) as a project to be taken seriously in order to impose responsibilities not only to States, but also to companies. Besides the need for improving the internal normative marks and being given effectivity to the 2015 Paris Agreement text (UN, 2015), signed by 2915 countries, this reinforcement of environmental regulations must be extended to private companies. But Brazil is admittedly one of the countries, beside the USA, to already have such provision for reparation to ecological damage, as is seen by article 1, item I, of Law 7347/85 (BRASIL, 1985)[6]. So, the intents of flexibilizing the demands of license processes will not have the right to exempt private operators for the damages caused by their activities to the environment, but may facilitate their defense in eventual debacles.

The Social-Environmental Institute (ISA), supported by 135 other social-environmental institutions and social movements, launched a manifest of repudiation against the legislative attempts of flexibilization of the Amendment Project 654/2015 (PETIÇÃO PÚBLICA, 2015). And here the fundamental role that organizations from civil society have in arranging popular movements, petitions, reports, etc. is worthy of mention. Besides these projects, ISA also fights Amendment Projects 602/2015 (SENADO 2015b) and 603/2015 (SENADO, 2015c), both reported by senator Delcídio do Amaral (PT – MG)[7] and which aim to debureaucratize the license emission procedures, placing the representatives of all involved institutions in one single board of discussion (MEDEIROS, 2016).

 

(2) The precariousness of oversight organs of the State

The Inter-American System on Human Rights, based on art. 21 of the American Human Rights Convention, recognizes that States have the power to authorize the exploration of natural resources. But such concessions cannot violate the people’s human rights. On that sense, in the case of Pueblo Saramaka c. Suriname (IACHR, 2007, p.41-9)[8], the Inter-American Court of Human Rights deemed to be duty of the States to provide all guarantees, among which is to present environmental impact assessments. The omission or inertia of the States in overseeing and monitoring in a serious and efficient manner the actions of private companies exploring natural resources evidences not only administrative incompetence, but also, which is more serious, the state complicity translated, often, in acts of corruption. Thus, as states Kathia Martin-Chenut[9] “the actions of the private sector may deflagrate the international responsibility of the States, be it because the company has a strong connection to the State, be it because the State does not prevent any violation, even though it is its duty” (MARTIN-CHENUT, 2016a, p.141). This is known, as the human rights doctrine calls, the “horizontal effect” (2016a, p.140) of the Conventions on human rights translated on the international responsibility of the States, for private actors, when the public entity does not fulfill with its positive obligations to oversee the respect for human rights by the companies.

The Brazilian State, firstly, by conceding facilitations for politicians, who either own companies associated to mining or are financed by them, to lead the legislative process over matters that benefit them and, secondly, by being omissive in its duty to strictly oversee the enterprises that are already installed and which represent hazard to the population, neglects its internal and international responsibility of being the main provider of human rights and environmental protection.

A report from the Federal Court of Accounts (TCU, 2015), authored by minister José Mucio Monteiro, states that the National Department of Mineral Production (DNPM) is flawed  and omissive in overseeing the dams, not complying to the goals of the “National Policy in Dam Safety” created in 2010 by Law 12.334. Among the causes are: a) the registration for the data about the dams is made from information provided by the own company, with no validation through in loco assessment, which allows companies to alter information easily. The State Foundation for the Environment (FEAM) is the organ in charge of publishing the inventories of the dams in Minas Gerais, and the monitoring occurs together with the DNPM. However, in its 2014 report (FEAM, 2014, p.37) the three dams of Samarco in Mariana (Fundão, Germano and Santarém) had their stability awarded by the auditor, which shows the unreliability of these organs (EM, 2015); b) a qualitative analysis of the documents sent to the Department is not made, as is exemplified by the Declaration of Stability Condition and the Safety Inspection Report; c) as for the monitoring, only 6% of oversights between 2012 and 2015 were made in dams deemed as high risk. “The explanation could come from the fact that the dams classified as such are the minority”, José Múcio claimed. In the same period, only 3% of these dams were monitored by the DNPM. Added to the ones with Associated Potential Damage (DPA), the result is that only 28% of high risk structures and DPA were overseen. In the superintendence of the states of Amapá, Amazonas, Maranhão, Paraná, Rio de Janeiro, Rondônia and Sergipe there was no oversight in the three years of analysis. In the state of Amazonas, for example, from the 13 registered dams, 10 are deemed simultaneously as high risk and as high potential damage; d) nevertheless, limitations of budgetary, financial and human resources nature prevent a decent oversight by the autarky. In Minas Gerais, the superintendence has only 79 workers when the actual need is of at least 384.

So, the TCU determined for the DNPM and the Ministry of Mines and Energy that, within 180 days, they ought to assess and present studies based on the analysis and the definition of priorities and sector goals about the adequacy of the budget and current human resources picture of the autarky. Also, they need to establish an action plan, in association with the Ministry of Planning, Development and Management, to solve or mitigate the difficulties which have been faced (TCU, 2016). Besides, in December 4 and 18, 2015, the Chamber of Environment and Cultural Heritage of the Federal Public Ministry advised IBAMA, DNPM and FEAM to enhance and broaden the scope of their oversight actions in the state of Minas Gerais, especially in the Santarém and Germano dams.

In the report, the IACHR even names at least 13 emblematic cases of human rights violations in mining projects in Brazil, among which, the case of the Carajás Complex created by the then Vale do Rio Doce Company in the states of Pará and Maranhão for iron ore exploration[10].

Although oversight is flawed in a general overview, it is not the first time that Samarco takes part in a social-environmental conflict. According to the final report of the research group PoEmas (Politics, Economy, Mining, Environment and Society), in the Integrated System of Environmental Information (SIAM) and the Information System of IBAMA, Samarco has 19 infraction notices regarding disdain in complying to environmental las and mismanagement of operations in the enterprise (PoEmas, 2015, p.41). The researchers claim that the impunity for environmental crimes happens in two levels, which are: the low cost of environmental fines imposed to companies, what does not represent an economic threat (2015, p.8)[11]; and the Brazilian judicial system itself which allows companies to ask for judicial reviews until their crimes prescribe due to its slow and bureaucratic processes (2015, p.42)[12].

Lastly, even if new accidents happen, as is the recent case of the breach of a duct of Vale in the city of Congonhas – Minas Gerais (GREENPEACE, 2017) and that the mining company even alters information on the tragedy (EM, 2016), when it comes to economic interest, the possibility of an extrajudicial agreement was designed – such as the Term of Transaction and Adjustment of Conduct (TAC), signed five months after the tragedy.

 

b) The actions of the national human rights protection system: the “caricature” of a consensus

On the 2nd of March 2016, an agreement was signed which expects a 20 billion (R$) investment over the next 20 years, articulated extrajudicially by the Attorney General between Samarco, Vale and BHP Bilinton; and the Federal Government along with the Minas Gerais and Espírito Santo state governments. Although being falsely cited as participants in the agreement, the MPF and State Public Ministries of the states of Minas Gerais and Espírito Santo, they not only did not participate in the agreement, but also criticized several points in the agreement, for instance (MPF, 2016b):

The lack of effective participation of those affected by the negotiations and the limitation of resources contributions by the companies behalf for the adoption of reparatory and compensation measures. Besides, an unjustifiably benevolent treatment was granted to Vale and BHP Billiton, violating the guarantee of solidary accountability.

 

According to then president Dilma Roussef (PT)[13], the focus of the agreement was celerity (OSWALD, 2016), which is contradictory, since she herself only went to Mariana after 7 days passed the tragedy (CAVALCANTI, 2015), besides having shown her support to some of the previously mentioned environmental flexibilization project.

Other than that, according to the text by PoEmas, the creation of a non-profitable foundation (composed by Samarco + shareholders) is discussed for the making of recovery actions, mediation and damage compensation caused by the dam. The formation of a Committee[14] with representatives from executive organs (widely committed to economic interests) is discussed in order to oversee the Foundation and the possibility of audits made by companies of the area (POEMAS, 2016, p. 4); on this scenario, consultants belonging to the “Big Four” – group of 4 large companies which concentrate this service and that “are more and more partners than ‘security dogs’ of the companies” (BOYD, 2004, p.384 apud POEMAS, 2016, p.6). Lastly, the agreement sets the creation of a “Specialist Consultants Panel”, composed by three people nominated by the Committee and the Foundation, that must supply non-binding opinions, which also indicates feebleness by this Panel (clause 246).

To the Movement of People Affected by the Dams (MAB), main social movement for the people afflicted by the dams in Brazil, the agreement represents “surrender to the criminal”, for (MAB, 2016):

The main victims of this tragedy were completely excluded from the process of construction of the agreement and also do not have a say on the reconstruction of their own lives. Actually, the victims won’t have even the right to declare themselves as such, because that power will be exclusive to Samarco. The victims will have to prove they are affected and the assailants will have the power to decide who is affected and what should be repaired.

On August 17, 2016, the Fifth Group of the Federal Regional Tribunal of the 1st Region (TRF1) nullified this TAC (G1, 2016), what raised questions from the companies about the competence of the Tribunal to judge issues related to the tragedy, leaving the decision to the Supreme Court regarding the competence of Federal Justice (CRISTALDO, 2016)[15]. The suspension of the agreement was broadly praised by the United Nations Organization, in face of the impossibility of the victims to act over restitution and the “record” resolution speed in comparison to other environmental disasters, what, in consequence, resulted in a damages cost estimative from the authorities 25 times smaller than predicted by MPF (UN, 2016).

In October, 2016, the MPF denounced 21 people to Justice (among them, Ricardo Vesgovi Aragão – retired CEO of Samarco) for murder in the second degree of 19 people in the tragedy, besides flooding, collapsing and battery. Furthermore, Samarco, Vale and BHP are responding criminally for 12 crimes against the environment, while VOGBR Water Resources and Geotechnics LTD. and the senior engineer of the company, Samuel Santana Paes Loures, are being prosecuted for presenting a false environmental report, once the dam stability was insidious (MPF, 2016c).

 

III. The double projection of the local in the global: from the (ir)responsibility of a company to the transnational (ir)responsibility of companies

As previously mentioned, Samarco had successive operational flaws in its works. The negligence to the Mariana community was so great that, in 2014, during a serious drought, the company increased its consumption by 74% (BERTONI, 2016). Among the social-environmental conflicts there are: dam operation without renewing the standard license in 2004 (fine worth R$3.7 thousand); confirmation of waters with high turbidity in the spillways of Santarém and Germano dams in 2005 (fine worth R$42.5 thousand); leakage in the Germano dam (the fine prescribed after five years); ore contamination in rivers in 2006; among several others (POEMAS, 2015, p.42).

Samarco, however, just repeats a pattern of behavior from its shareholders who, despite an “attempt at hiding” in the slogan of a new brand, reveal, in practice, the old and unsustainable dynamics of destroying for producing. Like Samarco is BHO, Samarco is also Vale. And in 2012, Vale S.A. received the award of worst company in the world regarding violating human rights in different parts of the globe from Public Eye People’s – also known as the “Oscar of shame” (PUBLIC EYE, 2012). One of the reasons for earning the vote from civil society around the world was Vale’s conviction by the Swiss justice in 233 million dollars for repatriation of profits in their international activities to Switzerland. That is, besides enjoying the fiscal benefits offered to their office in Geneva where they negotiated with Europe, besides all of the other fiscal incentives they receive in Brazil and abroad for their installations, Vale dared to repatriate over 5 billion dollars unlawfully, according to Swiss federal authorities (CHADE, 2012).

 

A. The local (ir)responsibility of a company

Delmas-Marty points the current logic of borders as a globalization paradox: they close for people, but open for the market. (DELMAS-MARTY, 2011). In general, the borders that avoid the migratory flow at all costs are the same that expand their economic production to another territory. In the case of Vale, despite being originally Brazilian, it is a transnational company and, being not only socially irresponsible but also criminal, nothing stops it from being “the English company” that “will buy everything […] and lose everything and everything will turn to nothing” (ANDRADE, 1951) in other places in the world.

 

a) Vale in the world: between ore production and resistances

In Sechura, Peru, an example of resistance is found in the people affected by the company and its dispersion of toxic phosphate in air and water, in the process of loading the materials in ships. According to the Unsustainability Report 2015, besides breathing problems in the population near the harbor, there is an unbalance in the marine system, harming also the local fishermen. In 2014, according to a representative of the Defense Front for the Community of San Martín de Sechura, Augusto Chapilliquen, Vale did not comply to the Covenant 169 of the International Labour Organization (INSUSTEN, 2015, p.19) on virtue of having started the exploration of mineral deposit on community lands without previous consultation. On the wall of a park in town, the following inscription: “Vale is not social responsibility, it is death”.

 


Graffiti on wall in a park constructed by Vale in Sechura / Photo - Foto: Justiça Global

 

In Mozambique, where Vale has acted since 2004 and has ore exploration contracts until 2030, workers report violations of national labor laws by the company in the province of Tete. In an interview of IHU – Unisinos with Jeremias Vunjanhe, the journalist highlighted that (VUNJANHE, 2011):

Along with Riversdale, the institution’s stockholders have been ‘converting into absolute owners of the hotel units and restaurants, the access ways, the local airport, anyway, the whole destiny of the province. Vale is interfering in the normal functioning of official institutions, imposing with more relevance than most local public organs as an actor in the processes of political, economic and social decisions.’  According to him, the social and economic situation of the society has declined in the last five years due to the economic growth not being associated to job creating and poverty reduction.

Besides that, Vale has answered before the Peoples Permanent Tribunal about Transnational Corporations in Manzini – Swaziland[16], in August 2016 for forcing the resettlement of 716 families of the Chipanga, Malabwe and Mithete communities in Cateme onto areas unfit for agriculture. According to Environmental Justice, “the several protests and complaints of these communities affected by the actions of Vale were answered with violence and repression by the police of the Republic of Mozambique and the company” (MONJANE, 2016).

Despite few news sources about this first session, it is known that it was very important for the empowering and bonding among social movements of people affected by transnationals who fight to dismantle the corporate power and against the impunity of these actors (AIDC, 2016). According to the Dossier on Impacts and Violations of Vale in the World (DOSSIÊ, 2010), the resettlement process of Vale Mozambique did not consult, nor properly compensate those resettled, once the negotiations were made only with male leaders (unaware of the fact that in the Chipanga and Nhamabalualo communities, women have strong participation in public life) and most of the population is not satisfied with the level of comfort and the size of the new homes built by the company.

Although many photos of people from Mozambique smiling, reading and working can be found in the “Vale around the world” section of their website – at least in their discourse, Vale is committed to investing in health, education, sport, etc. in parallel to its enterprises (2010, p.126) – the true social responsibility of the company is considered not to be “buying” land with public politics and so benefitting from the vulnerability of the population. Actually, before the soft[17] nature (DELMAS-MARTY, 2004b, p.182) of global normativity on CSR – Corporate Social Responsibility many companies around the world present a “façade” engagement (MARTIN-CHENUT, 2016a, p.128) to these norms and, in practice, do not abandon their predatory practices. In face of the need to resettle a population, the necessity appears for decreasing most material and psychological damage to those who are moving residence; discussing with the local population and assessing their needs with special attention to their own culture and way of life. The necessity for ensuring safety, hygiene, health and good working conditions for their employees and also for those living around the enterprise is essential.

Differently from what happened to Ellen Smith and Craig Edwards from Port Colborne, Ontario, Canada. When they realized the high quantity of nickel and lead in a soil assessment in their neighborhood (on the underground there is an aquifer carrying waste of the old mining company Inco, purchased by Vale), they had to forbid their children from playing in their yards (2010 p.108). However, worried and engaged about the problem, they contacted the Canadian Environmental Law Association and, together with other interested organs, filed a Collective Lawsuit against Inco (purchased by Vale) with a compensation request fixed in 750 million dollars (2010, p.110). The company was convicted in 2010 to pay around 36 million Canadian dollars in compensation to more than seven thousand residents of Port Colborne at first instance (INSUSTEN, 2015, p.26). The decision was later reversed by Superior Court, having afterwards the non-conviction confirmed by the Canadian Supreme Court (JOHNSON, 2012).

Still in Canada, in 2015, Sudbury’s Stobie Mine, by Vale payed a fine of 1 million dollars +25% surcharge to a fund for crime victims, after pleading guilty on four violations of a workplace safety law which led to the death of a worker and severe injury of another in Sudbury, Ontario (REUTERS, 2016). In March 2017, Vale announced its intention to close the Canadian unit until the end of that year, in face of the low degrees of productivity from the mine that was reaching the end of its natural production capacity, without further profitability in relation to the market. 230 people were estimated to lose their jobs. Besides these cases, on the Voisey’s Bay nickel mine, in Labrador, Vale fought against the union for striking for over 2 years due to disagreements about pay and benefits between the years of 2009 and 2011 (MORROW, 2012). That is, in Canada alone, at least three episodes of social disagreements with Vale can be found.

Lastly, other cases in Chile, Argentina, Indonesia, etc. can also be found on the reports used for this paper. However, the goal of this subchapter is to reinforce that the confrontation of Vale’s corporate responsibility speech and the resistances of the people affected in Brazil is perceived even in more developed countries, such as Canada; even though it is evident that the damages felt by the exploration are proportional to the levels of social vulnerability in each region. Let it be recorded, nonetheless, that mining companies in this country are part of the group of those who most violate human rights in innumerous countries in which they are installed. The “Marque Canada” report (RCRCE, 2016) indicates that in the last 15 years, over 400 episodes of human rights violation have been registered against these companies in Latin America.

 

b) The fragilities of private mechanisms of human rights protection

Since the seventies, through the advances in the studies of legal anthropology, the relations between law and society are recognized as not only produced by public mechanisms of regulation. Delmas-Marty explains well the recomposition of the legal landscape from: a) time: which is destabilized, once the laws are no longer meant to last forever, but only while they are in harmony with social reality; b) order: which is delegalized by the gain of power from non-legislative sources (jurisprudence) in front of legislative ones and; c) space: which is denationalized by the internationalization of Law, decentralization and privatization of sources (DELMAS-MARTY, 2004a, p.48). For Frydman, the change is in the rules, but also in the forms and procedures of regulation (FRYDMAN, 2014).

As examples of these new legal orders that turn more and more plural and private in times of globalization, the Codes of Ethics and Conduct (CEC) designed by the companies are drawn along with codes from the International Organization for Standardization (ISO) which approves international norms of economic and standardized technic interests. For Luciane Cardoso (CARDOSO, 2003, P.3),

They are corporate statements which make their commitment to the production of goods with social responsibility clear. It represents the effective participation of the transnational in the development and economic growth of the community in which it stands. They are documents that discipline production conditions to the suppliers and subcontractors of certain multinational company, through economically productive actions that are designed respecting the local environment and social aspects (of labor).

The CEC of Vale, in its introduction, speaks of a set of values that “reflect their high moral standards” (VALE, p.3), which are: a) life first; b) to value those who make our company; c) to care for our planet; d) to do the right thing; e) to grow and evolve together; f) to make things happen.

Before the cases narrated, we understand that, at the very introduction of Vales’s CEC, many violations of their own self-regulated values are easy to identify. The same thing happens to Samarco which, in 2002, while celebrating their 25th anniversary, published their first CEC (SAMARCO), with special attention to the 10 principles of the UN Global Pact of 2000[18], that is, although we recognize it as a new form of legal plurality, in the Mariana case the CEC of these companies did not contribute for the human rights protection of the people of Mariana.

Besides that, Samarco was the first mining company in the world to have the ISO 14001 certification on environmental management to all steps of production (ALMEIDA, 2015). These technical and management norms are different from others for not being made of a democratic legislative process, because the agents voluntarily follow them and no sanctions are expected in the event of non-compliance. According to our studies, the risk of breaching was known and there was not even any sound alarm for the event of leakage (RIBEIRO, 2015) – as stated by Recommendation 183 from the International Labour Organization on Safety and Health in Mines, in force in the country since Decree 6.270/2007 passed  (BRASIL, 2007). Therefore, at least in this case, the fragility and insufficiency of these private normative models is evident. In general, the codes of conduct and ISO seal are regarded more as advertisement than as proper internal normative to be effectively followed.

Therefore, only from a sociologic study, that is, a mapping of the state of things, is that the values of Philosophy should be applied in the construction of criticism and guidance for problem resolution. Imagination cannot be set aside from reality, for the risks and insufficiency of naïve thinking; but also it should not settle in it, under penalty of limiting the world in its own mediocrity. On this legal landscape, is it possible for corporate social responsibility to be a means of humanizing the globalization of economy?

 

B. The transnational (ir)responsibility of companies: pathways to effective legal accountability of transnationals

For the sake of using the same poet, Drummond used of irony in 1928 in his poem (scandalously simple) saying “in the middle of the road, there was a stone”. Well, in the middle of the road for effective legal accountability of transnationals there are several and, in order to remove these stones or have directions on dodging them, they must firstly be seen by us.

Tracing a brief summary of the relation between companies and human rights, the first occasion we may see in which legal corporate accountability was considered internationally was after the Second World War in 1947, in what were called “the Subsequent Nuremberg Trials[19]”, in face of German companies IG. Farben e Krupp[20], for crimes against peace and economic plundering (UN, 1949). But just like current affairs, in virtue of companies not being regarded as subjects of international law, the convictions were directed towards members of their administrative boards, that is, under individual legal accountability of their managers. In the early seventies, led by the concern of new independent countries with the growing power of multinationals and the fear of future influence of these companies in the sovereignty of States with low economic and institutional development, the UN Economic and Social Council requested to the Secretary-General the creation of a “group of specialists” to analyze the impacts of the activities of multinationals. For Olivier de Frouville, this phase marked by intense corporate participation in the coup in Chile and investments by certain companies in South Africa during the Apartheid, is the “first history of transnational corporations” in the UN, where the “accusatory” approach and the notion of companies as “a hidden and threatening power” prevailed. (MARTIN-CHENUT, 2013, p. 231). The mentioned group recommended then, the formation of a “Commission on Multinationals” so that a model code of conduct was formulated to be adopted by companies, and which worked until 1990 in a project which little by little was losing its characteristics and, in the end, was left abandoned due to conflicts of interests with developed countries (RIVERA, 2013, p.319).

From the late nineties to 2005, period that was marked by the Global Pact (originally with nine principles of human rights and corporate activities), which received wide support from companies, but hard criticism from civil society because its effects were only found in discourse. Since 2005, with John Ruggie appointed as Special Representative for the theme of Human Rights and Transnational Companies, his two papers have been discussed: “Protect, Respect and Remedy”,  from 2008 (OHCHR, 2008), and “Guiding Principles”, from 2011 (OHCHR, 2011).

Therefore, from the broken project to elaborate a Code of Conduct, through the Global Pact, to the end of John Ruggie’s tenure – in which corporate respect to human rights was voluntarily expected and in which Ruggie called “principle-based pragmatism” (FARIA JR, ROLAND, 2014, p.14)[21], the background is still feeble in terms of international normative. These (anti)efforts to compose a corporate legal accountability frame only reunited, as exemplified by the Ruggie parameters from 2008, three characteristics that, for Delmas-Marty, are marks of globalization in the soft legal concepts and that must be overcome: inaccuracy, flexibility, fragility.

However, we cannot forget that in 2014, in the 26th session of the Human Rights Council of the UN, happening between July 10 and 27, two important resolutions on the topic were passed (2014, p.16):

The first, led by Norway, Argentina, Ghana and Russia, renewed, by consensus, the mandate of the Labor Group of the United Nations on the topic for three more years.  The second resolution […] led by Equator and South Africa created an inter-government work group for the construction of an international binding treaty about trans/multinational companies, other commercial enterprises and violations of Human Rights. This project of an international treaty should be presented for analysis on the 31st session of the Human Rights Council, on the second half of 2016.

Some of the difficulties in holding companies accountable were already noticed along the text, especially for those who know about the innumerous cases of direct human rights violations from these, let us say, beings still “depersonalized” from public international Law. The issue is that, although considered subjects to international law on the private sphere, on the legal sphere this ascension to subject to law and, therefore, also to duties, is not part of the agenda of international mechanisms so far. So (MARTIN-CHENUT, 2014, p. 2),

 

They are not direct legal addresses of international treaties and there is not, up to date, an international convention for the protection of human rights directly binding for them. The asymmetry between States and companies is obvious, for instance, to the regional systems of human rights protection.

Therefore, why is it important for transnational companies to be considered subjects to public international law? Well, because many times they move away from norms which would hold them accountable for the outsourcing of a large portion of their production; they usually settle (even though in mining, the mineral availability is essential) in places where the oversight and accountability institutions do not exist, or operate poorly – as in Brazil and other countries of the so called Social South; by the level of influence over governments regarding the corruption of institutions, facilitating, as well, the configuration of law according to their own interests – as previously exemplified by the cases of the new Brazilian Mining Code, or then, by the acquisition of favorable legal interpretations. 

What is there to say if these difficulties occur on a national level, it is important that, in not having due reparation to victims nor fair collection of fines for companies to legitimize, regarding the transnational, justice of another country where the company acts to process and judge these companies on their human rights and environmental violations (like in the Australian example, the Mariana case in Brazil and in Vale Mozambique). Still, if not even that happens, recognizing the possibility of dislocation of jurisdiction and, so, acting on universal jurisdiction (MELLO, 2017), mainly if we take into account that, in cases such as Mariana’s, nature – humanity’s common asset – was gravely struck. The theory of “Cosmopolitics” (STENGERS, 2010)[22] developed by Isabelle Stengers favors enormously the recognition of nature as an object of duties to men (NEYRET, 2015, p.127), to moral people and to States.

In this sense, the necessity for a global normative mark arises, in particular one that positives the ways, elevate companies to subjects of international law and that – unlike UN’s propositions so far – makes the transformation from a non-mandatory and sanctionable law (moral and social responsibility) into a mandatory and sanctionable one (legal responsibility).

For Kathia Martin-Chenut (MARTIN-CHENUT, 2016b, p.43) the construction of a responsible legal humanism presupposes to take international law of the rights of man as a vector to harden in CSR, that because, even if it presents limits, it also has a decisive role to reinforce, in an internal level, the occurrence of justice, by means of the sophistication and enhancing of the corporate accountability mechanisms, especially over their actions in other countries. Besides, human rights international law may significantly contribute to the transformation of internal law in the sense of facilitating the accountability of transnational companies.

In this perspective, market and economy globalization is confronted by the globalization of the rights of men. This globalization is to become instrument for legal humanism (GOSSERIES, 2013, p. 53) in order to fight against strong violations of human rights. The environmental and human disasters accountable by transnational companies are among the worst consequences of the actions of private actors, which, due to competition and unbridled profit do little to reduce the risks of their activity, but are swift in demonstrating priority to performance, lead indicator of their success.

As previously stated, one of the UN’s Resolutions (26/9) created an intergovernmental work group for the elaboration of a legally binding international instrument for transnational companies related to human rights (UN, 2014). In parallel to this, a “Global Campaign to Dismantle Corporate Power and End Impunity” was articulated. In October 2016, this group presented “Six Concrete Proposals” on the second session with the Human Rights Council of the UN (STOP). This campaign relied on the actions of over 110 organizations, among them, the Brazilians Movement of People Affected by Dams and Global Justice/Brazil (STOP, 2016, p.32). Among the proposals, the one which stands out proposes the creation of a Tribunal, similar to the already existing International Tribunal for the Law of the Sea, which should “break the asymmetry between commercial moderation courts that protect the rights of transnational companies in the international sphere and in the absence of instruments to control their obligations in that same sphere”. The next and third session is set to happen between the 23rd and the 27th of October 2017 (OHCHR). What is left to know is whether the junction of international human rights law and the jurisprudence of regional human rights tribunals, on the rise, over the accountability of transnational companies for violation of human rights, will turn out to be an evolution of international regulation towards the creation of a world treaty.

 

IV. Conclusion

The Mariana tragedy shows us well the love-hate relation the most vulnerable people in our society hold to those which, at the same time, provide with one hand and take away with the other. The vulnerability condition, in reality, presents as fundamental issue the relation of people and the groups with the society in which they live. Hence, vulnerability never happens isolated and neither it is abstract. It is a fruit of the context. So, the harmful consequences produced by the breach of dam to humans and nature are a disastrous local issue, rooted on global issues.

In a time of deterritorializations and detemporalizations, transnational companies need, paradoxically, to territorialize themselves. It is about territorializations of the economy in the specific interest of some sectors of economic exploration, as is the case of mining companies spread in many places on the planet, especially in Africa and Latin America. This spacing counts, invariably, with the goodwill of state governments to the yearnings of profit and domination that some companies have over whole populations, that also enrich the rulers. This is a curious ambivalence in which, transnational companies, at the same time they need border limits for installations, to dictate the rules of the market and rely on the connivance of the States, on the other hand, use the argument of deterritorialization to escape accountability that the internal laws of these very own states can impose. By this angle, economy colonizes law and reproduces vulnerability situations. The commitments of internal public agents to strong interests of these economic segments affects, as seen, the content of laws which would be destined to imposing limits to the activities of transnationals, as is the case of the new Mining Code for Brazil.

Human rights international law by means of actions from regional systems has been the counterforce to uncontrolled lunges of economy. In the case of Mariana, the intervention by the IACHR, if not echoing until today in a satisfactory manner in the standards of corporate environmental and human accountability, at least makes way for the State international accountability and for the discussion on the responsibility the former shares with the latter. The acting of Vale do Rio Doce is the own history of a concrete case in which local practices spread globally as in, behind the image of a company committed to the UN’s Global Pact from 2000 and to international human rights protective norms that dictate the CSR speech, in reality, hide the intention of market domination and profit. But, more than that, what is seen is also that these administrative attitudes are replicated in various countries where this and other companies of the same segment act. Furthermore, even if internal mechanisms exist with the potential of imposing accountability to private economic agents, as is the case of TAC – Term of Adjustment of Conduct, as described in the Public Civil Action Law in Brazil, the agents involved can manipulate and direct results to satisfy their interests, as happened in Mariana, in face of the exclusion of the victims and the Public Ministry on the negotiations table.

Finally, the local problem unveils the global problem related to the absence of a global normative mark for legal and social accountability of transnational companies. With that, they make use of the fragility of soft law. This fragility allows them to grow stronger, as in the saying “high profit – low risk”. Improving internal laws, creating a world normative mark, engaging transnational companies in accountability for environmental damages and human rights violations, sophisticating theory and practice of universal jurisdiction, evolving the damage reparation predictions, innovating in terms of causality, firming the concepts of shared responsibility, improving legal repression typifying environmental crimes as major gravity and creating an International Court for environmental violations are some legitimate alternatives for facing the problems that cases such as the Mariana tragedy present. At least, poetry is always there for us:  “Entre estatais e multinacionais, quantos ais!” (“And between state and multinational corps, oh the woes!” – free translation).

 

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[1] Post-Doctor in Law of the IHEJ - Institut des Hautes Études sur la Justice, Paris. Coordinator and professor of the Law Department and the Graduate Program in Law at the Federal University of Santa Maria (UFSM), Rio Grande do Sul, Brazil. Visiting professor 2016/2017 at the IHEAL - Institut des Hautes Études de l'Amérique Latine, Université Sorbonne Nouvelle, Paris. http://lattes.cnpq.br/9285450415334580. Lawyer. E-mail: janiasaldanha@gmail.com

**Scientific initiation scholar of PIBIC - CNPQ - directed by Jânia Maria Lopes Saldanha. Graduated from the UFSM Law School. Member of the research group Center for Comparative Legal Sciences, Universalization of Law and Systems of Justice (CCULTIS). E-mail: clararossatto96@gmail.com

[2] Association of pre-existing companies, which may be definitive or not, in order to explore a specific business, without either of the companies losing their legal personality.

[3] 13.8 million; 4.3 million; and 3.6 million respectively

[4] Through the Interchamber Work Group of the 4th and 6th Chamber of Coordination and Revision and Federal Attorney of the Rights of the Citizen.

[5] Investigated and named in the “zealot” and “carwash” operations, Jucá reduced the size of the Yanomami people indigenous reserves in almost 75% during his time as chair of FUNAI. The remaining areas would become “national parks” for the exploration of wood and mining.

[6] It disciplines public civil action on responsibility for environmental damages, to the consumer, assets and rights of artistic, aesthetic, historical, touristic and landscape values and offer other providences.

[7] Politician who participated in the Mining Board of Vale and was recently arrested for his involvement in corruption cases.

[8] The case deals on the exploration of natural resources by a private company in the indigenous territory of the Saramaka people. IACHR recognized the people’s rights to take guaranteed part in the decisions regarding the exploration of their ancestor lands; their benefit as land owners over the lands and the presentation of preliminary environmental assessments. 

[9] Free translation by authors.

[10] “The damages and impacts of the Carajás Complex are felt since the beginning of its activities by the indigenous and quilombola populations of the region and by the dwellers of the towns of Parauapebas, Curionópolis, Eldorado dos Carajás, Marabá and Mozartinópolis (agricultural district of  Canaã  dos  Carajás), which suffer from the alteration in air quality, waste  and chemical dumping, water table and springs contamination, silting, forced eviction of local populations, disorganization of local economy, real estate speculation, work overexploitation, increase in traffic, violence and pressure over public services originated by migration towards the region.” (IACHR, 2016, p.16)

[11] “As a disownment strategy, Samarco frequently objects to the fines and, even when it pays them, they do not represent any economic threat to their operations and, therefore, pose no effective disincentive to the corporative practices in place. In that sense, the effective means of oversight, control and punishment by the state tend to stimulate even more the unlawful and irregular operational practices, especially because the periodic monitoring conditions of the environmental organs are technically and economically flawed, as well as politically oriented”.

[12] “A recurring strategy of the mining company before the questions of irregularities made by the environmental organs has been, firstly, to plead innocence and ask for technical and judicial reviews. So, the company aims to delegitimize and invalidate the technical arguments and, if they fail, to reduce the value of the fines or postpone as much as possible the process to the point of having the crime prescribe, making use of judicial strategies due to Brazilian bureaucracy and slow judiciary.” p.42

[13] Dilma Roussef said during the COP-21 occurring in Paris in December 2015: “The irresponsible action of some companies provoked the largest environmental disaster in the history of Brazil, on the great drain basin of the Doce River. We are reacting to the disaster with measures to reduce the damages, support the populations affected, prevent new occurrences and also severely punish those responsible for this tragedy”.

[14] Composed by two representatives from the Ministry of Environment, two from the state of Minas Gerais and two from Espírito Santo, two from the towns affected, two from towns in Minas Gerais and two from towns in Espírito Santo that were affected and one representative from the Doce River Basin Committee (clauses 242,244). p.5.

[15] “The rapporteur understood that, based on the Federal Constitution, the competence to process and judge the actions is of Federal Justice. According to the judge the accident involved mining activity, which is the Union’s responsibility; affected a federal river, also pertaining to the Union; and provoked damages in the territories of two states. Diva Malerbi also understood that state Justice should be responsible only for the trial of punctual local actions, as a means of facilitating the access to Justice by the people affected by the environmental disaster”.

[16] On the sphere of the dome of the peoples of the Community for Northern Africa Development (SADC) which happens in parallel to the annual summit of heads of State and governments of the region.

[17] Thusly considered for being an optional, imprecise and non-mandatory right.

[18]Created by Kofi Annan, this Pact is regarded as the first document establishing a human character to globalization. It discusses a voluntary engagement by which companies, associations and non-government organizations are invited to respect the ten universally accepted principles for the protection of human rights, labor norms, environment and the fight against corruption. Website: https://www.unglobalcompact.org/. 

 

[19] Once the International Military Tribunal of Nuremberg had already established accountability for war crimes, assault war and crimes against humanity, the subsequent processes aimed to determine whether second-tier nazi with the same charges were guilty or not

 

[20] Nowadays,  IG Farben has established itself in three major companies (Bayer, BASF and Hoechst) and Krupp has become one of the main industrial groups in the country, producing steel, guns, ammunition and other equipment.

[21] “Prioriza as ações e normativas com maior chance de serem alcançadas, mesmo que não sejam tão representativas, ou não protejam plenamente os direitos humanos”.

[22] The inclusion of cosmos in “cosmopolitics” brings as primordial effect the destruction of the modern concept that politics refers only to humans. And the presence of politics in “cosmopolitics” overcomes the cosmos temptation to conceive a finite list of entities to be taken into account.





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