Made available in DSpace on 2014-12-17T14:27:24Z (GMT). No. of bitstreams: 1 EdmarEMV_DISSERT.pdf: 4563188 bytes, checksum: dcc789dbc6a3a3fcc788ce53cdae6e7e (MD5) Previous issue date: 2013-08-30 / The existence of inequalities among the Brazilian regions is an indeed fact along the country s history. Before this reality the constitutional legislator inserted into the Federal Constitution of 1988, as a purpose of the Federative Republic of Brazil, the reduction of regional inequalities. The development has also been included as a purpose from the State, because there is an straight relation with the reduction of regional inequalities. In both situations is searched the improvement of people s living conditions. . In pursuit of this achievement, the State must implement public policy, and, for this to happen, it needs the ingress of income inside of the public coffers and support of economic agents, therefore the importance of constitucionalization of the economic policy. The 1988 s Constitution adopted a rational capitalism regime consentaneous with current legal and social conceptions, that s why it enabled the State s intervention into economy to correct the so-called market failures or to make the established objectives fulfilled. About this last one, the intervention may happen by induction through the adoption of regulatory Standards of incentive or disincentive of economic activity. Among the possible inductive ways there are the tax assessments that aim to stimulate the economic agents behavior in view of finding that the development doesn t occur with the same intensity in all of the country s regions. Inside this context there are the Export Processing Zones (EPZs) which are special areas with different customs regime by the granting of benefits to the companies that are installed there. The EPZs have been used, by several countries, in order to develop certain regions, and economic indicators show that they promoted economic and social changes in the places where they are installed, especially because, by attracting companies, they provide job creation, industrialization and increased exports. In Brazil, they can contribute decisively to overcome major obstacles or decrease the attraction of economic agents and economic development of the country. In the case of an instrument known to be effective to achieve the goals established by the Constitution, it is duty of the Executive to push for the law that governs this customs regime is effectively applied. If the Executive doesn t fulfill this duty, incurs into unjustifiable omission, correction likely by the Judiciary, whose mission is to prevent acts or omissions contrary to constitutional order / A exist?ncia de desigualdades entre as regi?es brasileiras ? um fato presente ao longo da hist?ria do pa?s. Diante dessa realidade, o legislador constituinte inseriu na Constitui??o Federal de 1988, como objetivo da Rep?blica Federativa do Brasil, a redu??o das desigualdades regionais. O desenvolvimento tamb?m foi inclu?do com objetivo do Estado, pois tem direta rela??o com a redu??o das desigualdades regionais. Em ambos os casos o que se pretende ? a melhoria das condi??es de vida das pessoas. Nessa busca, o Estado deve implementar pol?ticas p?blicas, e, para isso, necessita do ingresso de receitas em seus cofres e do aux?lio dos agentes econ?micos, da? a import?ncia da constitucionaliza??o da Ordem Econ?mica. A Constitui??o de 1988 adotou o regime do capitalismo racional, consent?neo com as atuais concep??es jur?dicas e sociais, por isso possibilitou a interven??o do Estado na economia para corrigir as chamadas falhas de mercado ou para que sejam cumpridos os objetivos estabelecidos. Nesse ?ltimo caso, a interven??o pode ser feita por indu??o, atrav?s da ado??o de normas regulat?rias de estimulo ou de desest?mulo da atividade econ?mica. Entre as medidas indutivas poss?veis, est?o os incentivos fiscais, que visam estimular comportamentos dos agentes econ?micos, tendo em vista a constata??o de que o desenvolvimento n?o ocorre com a mesma intensidade em todas as regi?es pa?s. Nesse contexto, est?o as Zonas de Processamento de Exporta??o (ZPE s), que s?o ?reas especiais com regime aduaneiro diferenciado pela concess?o de benef?cios as empresas nelas instaladas. As ZPE s t?m sido utilizadas por diversos pa?ses com o objetivo de desenvolver determinadas regi?es, e os indicadores econ?micos demonstram que elas promoveram mudan?as econ?micas e sociais nos lugares onde est?o instaladas, especialmente porque, com a atra??o de empresas, proporcionam a gera??o de empregos, a industrializa??o e o aumento das exporta??es. No Brasil, podem contribuir decisivamente para a supera??o ou diminui??o dos principais obst?culos a atra??o dos agentes econ?micos e ao desenvolvimento econ?mico do pa?s. Em se tratando de um instrumento reconhecidamente eficaz para o cumprimento dos objetivos estabelecidos pela Constitui??o, ? dever do Poder Executivo diligenciar para que a lei que disciplina esse regime aduaneiro seja efetivamente aplicada. Se n?o cumprir esse dever, incorre em omiss?o injustific?vel, pass?vel corre??o pelo Poder Judici?rio, que tem a miss?o de impedir a??es ou omiss?es contr?rias a Ordem constitucional / 2020-01-01

Internationally, the debate on business and human rights has evolved within the last decade, with more efforts being made to address the issue of what role corporations play in the human rights domain. The latest international effort to address the issue was the adoption of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework” by the United Nations Human Rights Council in 2011. In brief, the Guiding Principles observe that the state must protect human rights, that businesses must respect human rights, and that there should be effective remedies for human rights violations. Locally, the Constitutional Court of South Africa ruled that mineworkers who are eligible to get compensation under the Occupational Diseases in Mines and Works Act had a common law right to sue the employer for injuries sustained at work. This was despite the fact that legislation was put in place to replace the common law liability of an employer for injuries or death sustained at work. On a broader scale, the Guiding Principles then formed the yardstick for the determination of whether there are adequate and effective remedies for human rights violations in the South African mining industry. The investigation essentially leads to the conclusion that the South African state has not fallen short of its duty to protect and to provide sufficient remedies for businessrelated human rights violations in the mining industry. The forums are in place and there is legislation that also provides for compensation as remedies for either injuries or death at work. Some issues of concern are the accessibility of the structures in place to address human rights violations, the disparity between compensation provided for in different legislation, and the lack of a more proactive approach by the Human Rights Commission. / LLM (Import and export Law), North-West University, Potchefstroom Campus, 2014

Internationally, the debate on business and human rights has evolved within the last decade, with more efforts being made to address the issue of what role corporations play in the human rights domain. The latest international effort to address the issue was the adoption of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework” by the United Nations Human Rights Council in 2011. In brief, the Guiding Principles observe that the state must protect human rights, that businesses must respect human rights, and that there should be effective remedies for human rights violations. Locally, the Constitutional Court of South Africa ruled that mineworkers who are eligible to get compensation under the Occupational Diseases in Mines and Works Act had a common law right to sue the employer for injuries sustained at work. This was despite the fact that legislation was put in place to replace the common law liability of an employer for injuries or death sustained at work. On a broader scale, the Guiding Principles then formed the yardstick for the determination of whether there are adequate and effective remedies for human rights violations in the South African mining industry. The investigation essentially leads to the conclusion that the South African state has not fallen short of its duty to protect and to provide sufficient remedies for businessrelated human rights violations in the mining industry. The forums are in place and there is legislation that also provides for compensation as remedies for either injuries or death at work. Some issues of concern are the accessibility of the structures in place to address human rights violations, the disparity between compensation provided for in different legislation, and the lack of a more proactive approach by the Human Rights Commission. / LLM (Import and export Law), North-West University, Potchefstroom Campus, 2014

Ce travail mise à étudier comment les standards internationaux de droit souple contenues dans les principes directeurs des Nations Unies relatifs aux entreprises et aux droits de l’homme sont en train d’influencer la législation européenne et celle des états membres. Le premier chapitre analyse la responsabilité (ou mieux son absence) des entreprises multinationales dans le droit international et devant les courts nationaux. Dans ce contexte, on assiste à l’affirmation des codes de conduite internationaux de droit souple. Le deuxième chapitre est concentré sur trois codes de conduite internationaux : les lignes directrices de l’OCDE, la déclaration de l’OIT et les normes des Nations Unies. Cette analyse est visée à offrir au lecteur une idée plus claire du cadre qui a porté à l’approbation des principes directeurs. Le troisième chapitre est entièrement confié à l’analyse de ces principes et leurs trois piliers, avec une attention spécifique au devoir de l’état de protéger les droits de l’homme. Finalement, le dernier chapitre étudie, à travers une méthode comparée, l’actualisation des principes directeurs par l’Union européenne et ses états membres. Cette recherche a permis de conclure que les principes directeurs sont en train d’influencer largement le processus législatif européen et national. Elle veut alors contribuer au débat concernant le rôle croissante du droit souple dans la solution des problématiques liées à la mondialisation et à la perte de puissance du principe de la souveraineté des états / The twofold aim of the research is to study how the international soft law standards laid down in the UN Guiding Principles on Business and Human rights (UNGPs) are shaping both the European and the National legislations, and what are the further developments expected. The first chapter explores the (lack of) responsibility of MNEs in international law and in front of national courts. In this scenario, the role of international soft law has been particularly important. The second chapter examines three different public codes of conduct regulating MNEs, The OECD Guidelines for multinational corporations, the ILO Tripartite Declaration and the UN Norms. This analysis serves to give the reader a clearer idea of the context in which the UNGPs has seen the light. The third chapter is entirely dedicated to the analysis of the UN Guiding Principles endorsed in 2011 and of their three pillar, with a special focus on the State duty to protect. Finally, the fourth chapter analyses, through a comparative method, the UNGPs implementation in the EU and in some Member states. It concludes that the UN Guiding Principles are largely influencing the European policy in this sector, and that both the European Union and the Member states are implementing this policy through several measures, both voluntary and mandatory. Finally, the research intends to make a contribution to the debate on the increasing role of international soft law in solving challenges of a globalized world where the State sovereignty principle has lost importance

The Canada-Colombia Free Trade Agreement (CCOFTA) came into force in August 2011 amidst concerns that the provisions protecting Canadian investment in Colombia could exacerbate the precarious human rights situation. The Agreement concerning Annual Reports on Human Rights and Free Trade between Canada and Colombia was negotiated to address such concerns by enshrining the first ever human rights impact assessment (HRIA) of a free trade and investment agreement (TIA) in an internationally binding instrument. This thesis builds on a growing body of international legal scholarship that has considered the duty of home states of private investors to regulate their activity in the host state so as to prevent them from causing or contributing to human rights and environmental harm. It examines state obligations found in human rights, environmental and general principles of international law to propose that while an obligation might exist for the home state to exercise unilateral regulation of its investors, in the presence of a TIA that could cause or enable private human rights or environmental harm, investor regulation through the TIA can be seen as duty for both the home and host states. In view of the absence of such regulation in the CCOFTA, this thesis will consider if the annual HRIA mechanism is an alternative for preventing human rights and environmental harm caused or enabled by the TIA. It is submitted that while HRIAs of TIAs are a novel concept for which little international practice exists, this mechanism has the capacity to provide concrete evidence of human rights or environmental harm caused or enabled by the TIA, but only if based on a methodological model that uses existing state international human rights law obligations as indicators to measure a change in the human rights situation, draws unequivocal causal links between the investment protection provisions and human rights indicators, and allows for broad public participation, especially from the most marginalized and underrepresented groups in the host state to validate its methodology and findings. While under international law all investment-exporting states might have a duty to conduct HRIA on the effects of a proposed TIA as part of the due diligence to prevent transnational harm, the enshrinement of such assessments in an internationally binding instrument triggers a duty for the home state to, on one hand use the HRIA mechanism to prevent transnational human rights or environmental harm and, on the other hand, structure its annual assessments according to the described model in order to give effect to the duty to prevent. Broad and inclusive participation of the local affected communities from the host state in the HRIA becomes an integral component of the home state duty to prevent that can be expected to reveal any negative effects on the human rights situation from the TIA provisions, as well as the type of action required from both states parties to address them.

The Canada-Colombia Free Trade Agreement (CCOFTA) came into force in August 2011 amidst concerns that the provisions protecting Canadian investment in Colombia could exacerbate the precarious human rights situation. The Agreement concerning Annual Reports on Human Rights and Free Trade between Canada and Colombia was negotiated to address such concerns by enshrining the first ever human rights impact assessment (HRIA) of a free trade and investment agreement (TIA) in an internationally binding instrument. This thesis builds on a growing body of international legal scholarship that has considered the duty of home states of private investors to regulate their activity in the host state so as to prevent them from causing or contributing to human rights and environmental harm. It examines state obligations found in human rights, environmental and general principles of international law to propose that while an obligation might exist for the home state to exercise unilateral regulation of its investors, in the presence of a TIA that could cause or enable private human rights or environmental harm, investor regulation through the TIA can be seen as duty for both the home and host states. In view of the absence of such regulation in the CCOFTA, this thesis will consider if the annual HRIA mechanism is an alternative for preventing human rights and environmental harm caused or enabled by the TIA. It is submitted that while HRIAs of TIAs are a novel concept for which little international practice exists, this mechanism has the capacity to provide concrete evidence of human rights or environmental harm caused or enabled by the TIA, but only if based on a methodological model that uses existing state international human rights law obligations as indicators to measure a change in the human rights situation, draws unequivocal causal links between the investment protection provisions and human rights indicators, and allows for broad public participation, especially from the most marginalized and underrepresented groups in the host state to validate its methodology and findings. While under international law all investment-exporting states might have a duty to conduct HRIA on the effects of a proposed TIA as part of the due diligence to prevent transnational harm, the enshrinement of such assessments in an internationally binding instrument triggers a duty for the home state to, on one hand use the HRIA mechanism to prevent transnational human rights or environmental harm and, on the other hand, structure its annual assessments according to the described model in order to give effect to the duty to prevent. Broad and inclusive participation of the local affected communities from the host state in the HRIA becomes an integral component of the home state duty to prevent that can be expected to reveal any negative effects on the human rights situation from the TIA provisions, as well as the type of action required from both states parties to address them.