Brazil’s Supreme Court has lifted its injunction on one of the most powerful and distinctive tools in the country’s campaign to eradicate slave labor, clearing the way for its reinstatement after a suspension that lasted nearly 17 months. The “Dirty List”—a public registry of employers found by the Ministry of Labor to be employing workers under what Brazil calls “conditions analogous to slavery”—was declared unconstitutional on 29 December 2014 by the Supreme Court president who agreed with an injunction filed by a trade association that the Dirty List denied due process to employers. Since then, lawyers at the Ministry of Labor have actively engaged with the Supreme Court and leaders in the private sector to address and remedy their concerns. The Supreme Court decision clears the way for the Dirty List to be reinstated.
The timing of the decision is notable in at least three respects: it comes amid sweeping changes in Brazil’s government, on the eve of the 2016 Olympic Games and on the heels of the passage of the U.S. Customs Bill.
On the final day of the Dilma Rousseff government on 11 May, the Ministry of Labor issued a decree announcing changes to the Dirty List process that responded to concerns raised in the Supreme Court injunction. These include, but are not limited to, the application of a new measure that allows employers on the Dirty List to remediate concerns raised by inspectors and reduce their time on the list from two years to one. The decree was the culmination of a period of extensive consultation and continuous and careful adjustments to the process. We reported here in December that the Ministry of Labor was unlikely to release its all-new-and-improved process until after the Supreme Court lifted the injunction banning the publication of the Dirty List, but with Dilma and her Labor Minister Miguel Rossetto on their way out, its hand was forced and the sequence was flipped. On 16 May, Supreme Court Vice President Cármen Lúcia Antunes Rocha moved to lift the injunction, a decision she communicated to relevant government agencies on 24 May.
The new Dirty List process must be implemented by the government of Michel Temer and the newly renamed Ministry of Labor and Social Welfare. As of this writing, however, there is no schedule for its publication
On 5 August, the summer Olympics will open in Rio. The UN’s International Labor Organization voiced concern several months ago in this article in The Guardian that in the absence of a Dirty List, migrant laborers and children seizing economic opportunities created by the Olympic Games would be more vulnerable to trafficking and slavery. The new ministerial decree and the Supreme Court decision make it possible for the Dirty List to be reinstated before the opening ceremonies get underway.
THE U.S. CUSTOMS BILL
In January, the Obama administration signed into law the Trade Facilitation and Trade Enforcement Act of 2015, also known as the Customs Bill. Among other things, that measure closed an 85-year-old “loophole” called the “consumptive demand exception” that exempted items not produced domestically in quantities sufficient to meet U.S. consumer demand (including coffee) from the country’s ban on imports of goods produced by unfree labor. With that loophole closed, these items are now subject to investigation and interdiction by U.S. Customs and Border Patrol if there is “reasonable but not conclusive” evidence to suggest that specific shipments may be tainted by slave labor. Brazil’s Dirty List would give USCBP a credible and official source of information on specific companies in whose supply chains inspectors have found evidence of what Brazil defines as modern slavery.