Chile

By Daniel Morris | 28. November 2017

Pillar 1: The State Duty to Protect Human Rights

Strand 2: Dialogue

Action point 2.4 (pages 34-35)

The Ministry of Energy, through the Division of Participation and Dialogue, will promote the creation of formal and stable opportunities for dialogue between businesses and communities in areas where they expect to install energy projects. To ensure the effectiveness of these spaces, the “Guide for Participation Standards in the Development of Energy Projects” will be available to promote the existence of public sector mechanisms aimed at decreasing existing asymmetries between the parties, such as a registry of advisors and facilitators for communities  to access; a symmetry fund to finance the advisors and facilitators; a complaints mechanisms regarding compliance with agreements that forwards complaints to the authorities; and alternative dispute resolution mechanisms to resolve any disagreements that may arise in the dialogue process. Efficiency criteria set out in Guiding Principle No. 31 will be included in the design of the complaint mechanism.

Pillar 2: The Corporate Responsibility to Respect Human Rights

What does the Government expect from business enterprises? (page 51)

  • That they create operational mechanisms for remedy allowing them to identify potential impacts and establish remedial actions in case this happens.

Pillar 3: Access to Redress Mechanisms

Strand 2: State-Based Non-Judicial Mechanisms (pages 59-62)

In line with Principle 27 of the Guiding Principles, States must develop effective and appropriate non-judicial grievance mechanisms, at the same time as judicial mechanisms, as an integral part of a comprehensive state system to redress the violation of human rights by business enterprises.

The State must inform the public about the existence and operation of these mechanisms, and take into consideration and act upon their recommendations. These mechanisms should also keep an open dialogue with citizens, especially with risk populations within the framework of corporate activities. It is desirable that these mechanisms are introduced, upon their mandate, at international exchanges and development for a about business and human rights; for example, they could be included in discussions with regional and global human rights institutions and in the revisions made to the progress achieved by the 2030 Agenda.

Action Point 2.1

The National Contact Point for OECD Guidelines (NCP) of the Ministry of Foreign Affairs will adopt a series of measures to strengthen its duties. For this, it will:

  • Renew and strengthen the Mirror Committee, a body composed by representatives from the business community, unions, NGOs, and academia -with the support of Chile’s National Human Rights Institute (NHRI). The Committee’s main role is advising the NCP and supporting his/her work, including the dissemination and treatment of the cases he/she receives. This role will be strengthened by renewing the Committee to enhance the promotion of a Responsible Corporate Behaviour among national stakeholders
  • Submit, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, before the Mirror Committee of the National Contact Point, the existing relationship between the OECD Guidelines for Multilateral Enterprises and the UN Guiding Principles on Business and Human Rights.
  • Prepare, in conjunction with the NHRI, an Agreement of Good Intentions with the purpose strengthening communication between both organisations, share information about potential specific situations and infringement of the Guidelines, specifically regarding the chapter on human rights, and carry out joint execution of the same in dissemination and training activities.
  • Organise, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, dissemination and training activities, covering both instruments, for different national stakeholders, by including the mediation/conciliation role of the National Contact Point in the resolution of disputes with multilateral enterprises. Activities include the preparation of a briefing leaflet covering the relationship between OECD Guidelines and the Guiding Principles. …
  • Be voluntarily evaluated in 2017 through peer review, which will allow the country to identify the NCP’s strengths, as well as areas for improvement, thus becoming the first State in Latin America and the Caribbean to go through this kind of process.

Action Point 2.2

The Ministry of Labour will guarantee access to audit actions should labour rights be infringed, by modernising the Labour Directorate.

Action Point 2.3

The National Institute of Human Rights will:

  • Introduce business and human rights standards in observation missions and reports.
  • Collaborate with the OECD National Point of Contact on business and human rights related matters.

Action Point 2.4

The Superintendence of the Environment (SMA) will:

  • Permanently update the National Information System for Environmental Auditing, in publicly accessible website.
  • Apply diverse prioritising criteria, such as “territorial vulnerability”, which addresses institutional and geographical aspects, and “grievances”, by taking into consideration the number of grievances received from citizens and the different sectors.
  • Apply criteria for prioritisation in processing and managing grievances submitted by citizens, such as “Level of seriousness of the facts reported” and “Public commotion.” The SMA has available a process for communities to raise grievances about facts that may constitute infringements falling under its competence.
  • Apply the Technical Protocol for the Execution of Environmental Auditing Activities concerning Measures Associated with the Human Environment, in the auditing of measures contained in Environmental Qualification Measures Associated with the Human Environment (indigenous or non-indigenous.)

Action Point 2.5

Within the framework of the Local Development Policy of the Ministry of Energy, the following actions will be carried out:

  • Promotion, in coordination with other relevant public services, and through multisectoral dialogue, the development and implementation of a grievance mechanism so that business enterprises and communities may forward to the authority their concerns about non-compliance of an agreement existing between the parties.
  • Promotion of formal and permanent spaces for dialogue between business enterprises and communities, whereby potential impacts may become known and
    the relevant measures may be taken. For smooth operation of these spaces for dialogue, the public sector will promote the availability of a record of advisors and facilitators to be used by communities, and a Symmetry Fund47 allowing to finance such advisors or facilitators

Action Point 2.6

Within the framework of the Energy Policy, the Local Development Policy and the Chapter on Indigenous Relevance of Energy 2050, the Ministry of Energy will promote the development of mechanisms for the resolution of disputes between communities and business enterprises within the context of the development of energy projects, will may consist in, inter alia, mediation, redress or other mechanisms that may be relevant.

Strand 3: Non-State-Based Mechanisms (page 62-63)

Non-state based redress mechanisms play an important role in the design of a holistic remedy system in the field of business and human rights, since this allow the owners of rights to look for redress actions outside or beyond the state-based system. In this regard, States must study the way to facilitate access for such non-state-based redress mechanisms to take care of violations against human rights related with business enterprises.

A category of non-state-based mechanisms are those managed by a business enterprise alone, or in conjunction with stakeholders, by an economic association, or by a multilateral group of stakeholders. This allows business enterprises and communities to develop spaces for dialogue, measurement, resolution and/or remedy, and to look for solutions within the relevant administrative structures that are culturally appropriate and compatible with human rights. When these mechanisms are developed within the framework of business and human rights, they may offer concrete advantages to resolve situation that may potentially vulnerate human rights, such as prompt access and remedy, reduced costs and/or cross-border reach.

Likewise, Principle 29 highlights the fact that business enterprises should set out or participate in effective grievance mechanisms available, at an operational level, to people and communities that may suffer from negative consequences, and so that the damage caused may be promptly and directly redressed

Action Point 3.1

The Under-Secretariat of Economy, supported by the Ministry of Foreign Affairs, will coordinate the preparation of a booklet containing guidelines about operational grievance mechanisms that may be adopted by business enterprises. It will consult, for drafting this document, with business enterprises participating in the business and human rights working group (a commitment set out in the table about the contribution of other actors, page 86.)

Strand 4: Criteria for the Effectiveness of Non-Judicial Grievance Mechanisms (page 63-64)

The Guiding Principles include criteria for non-judicial grievance mechanisms, both state-based and non-state-based aimed at ensuring their effectiveness. These mechanisms are:

  • Legitimacy
  • Accessibility
  • Predictability
  • Equity
  • Transparency
  • Compatibility with rights
  • Source of continuous learning
  • Based on dialogue and participation

Action Point 4.1

All actions contained in this Plan related with state-based non-judicial mechanisms and non-state-based mechanisms will refer to these Principles of Effectiveness for their implementation and continuous improvement

Action Point 4.2

All training and other actions included in this Plan addressing the subject of business and human rights will make special reference to non-judicial grievance mechanisms available in Chile and the principles of effectiveness.