As a foreign investor, or potential foreign investor, the Gambia v Myanmar hearings at the International Court of Justice (ICJ) on genocide allegations can only be bad news. The best-case scenario for the Rohingya victims, that the court orders provisional measures to force Myanmar to allow investigations and is found responsible for Genocide on the merits is a disaster for investors who will be confirmed as propping up a genocidal regime. The middle road based on ICJ precedent, that the Myanmar in not found responsible for genocide but for falling to prevent it, demonstrates a profound lack of rule of law at home and a culture of impunity harmful to investors interest. The worst-case scenario for victims, that the ICJ does not order provisional measures or accept that genocide has been committed on the merits, emboldens the military further and will likely create instability across Myanmar the future.

Given the conclusions of the UN Fact Finding Mission and the UN Special Rapporteur that all investment must avoid working with the military, companies linked to the military, and crony businessmen, as well as how difficult this is to do in practice, investing in Myanmar is already reputationally risky. Myanmar’s staunch defence at the ICJ – that these heinous acts committed by the military are only crimes against humanity, war crimes and human rights abuses –  will not reassure. International business is aware that they may be found complicit in or to have contributed to the military’s human rights abuses in the country – and even Myanmar has not denied they occur.

Myanmar is basically arguing that the atrocities committed against the Rohingya people are not genocide; they are just clearance operations like all others conducted in the country and are only crimes against humanity, war crimes and other widespread and systematic human rights abuses. Myanmar does not deny the allegations graphically alleged by Gambia’s legal team at the ICJ. Instead, it argues that the court only has jurisdiction for the specific crime of genocide if it wishes to impose provisional measures, and that to have that jurisdiction there must be proven genocidal intent.

This defence is extraordinary. Myanmar has argued that, yes, all those terrible acts (actus reus) occurred but that there is no proof of an intent (Mens Rea) to destroy the Rohingya as a group. They argue it is not enough to show that they intended to remove them from their homes or drive them across the border into Bangladesh; it must be proven that the intent was to destroy them.

Myanmar argued that the military has always pursued these ‘clearance operations’, the hallmark of the military for decades – clearance operations essential mean anti-terrorist operations characterised by attacking civilians, often using sexual violence, and driving people out of their homes. Ask the Kachin, Shan and Karen people about how these operations work in practice. The difference is, it appears, that the Rohingya, unlike other groups, have no real army capable of defending them so it caused a mass exodus.

Myanmar emphasises genocide’s specific requirement to prove the mental element. They argue that without that specific intent proven, those widespread and systematic human rights abuses by the military only constitute crimes against humanity or war crimes, over which the ICJ has no jurisdiction to order provisional measures. Proving genocidal intent requires a criminal investigation, which has not been conducted yet. Of course, in reality, the investigation has been thwarted by Myanmar as argued by Gambia’s legal team. The Judges may take this into consideration. For the sake of the victims, let’s hope so. But the ICJ may agree and refuse to assert jurisdiction.

Again, Myanmar’s defence is only a legal one: it insists these operations are not tantamount to genocide. They insist that if they intended to destroy the Rohingya, they would have done so. They would not have allowed hundreds of thousands to flee and would not have ‘protected’ them in the camps nor encouraged them to return. There would be far more than ten thousand deaths. This is of little consolation to the Rohingya and other ethnic groups who are the real victims of these ‘clearance operations.’

Myanmar realises that the ICJ is likely the only venue in which they may face genocide charges in the foreseeable future. The ICJ has jurisdiction over violations of the Genocide Convention. But Myanmar is not party to the Rome Statute of the International Criminal Court (ICC) and it is unlikely that the UN Security Council will authorise a special investigation. The ICC’s investigation into the cross-border crime of deportation based on Bangladesh’s membership will take a long time and it is uncertain that Myanmar’s military leaders will ever be brought before the court, especially for genocide. So, if they can avoid the jurisdiction of the ICJ, they return home triumphant.

That there is no likely international accountability mechanism to hold the state or individuals accountable for crimes against humanity and war crimes should not reassure the foreign investor. The legal defence by Myanmar also indicates a complete absence of the rule of law at the national level. The national courts are unwilling or unable to hold the military and the police accountable for any crime, let alone international crimes. They have failed to prevent, investigate or hold anyone accountable for these crimes. Aung San Su Kyi’s argument that it can’t be genocide if the state is investigating the perpetrators rings hollow. The investigations so far have failed to meet any test of independence or impartiality.

This does not bode well for a contractual dispute with between a foreign investor and their military linked joint venture partner. The triumphant return of Aung San Su Kyi and the military is the worst-case scenario for accountability and the rule of law. This worst-case scenario could embolden the already powerful military and stoke ethnic nationalism further. To put if crudely in investment terms, this means instability – which is bad for business. Only companies from states without the discerning glare of civil society and a free media – all of Myanmar’s immediate neighbours, for example – will dare to invest in projects and put their reputations on the line. Scrupulous investors will be wary.

This uncertainty is made worse by a popular misunderstanding of international law: the narrative in the media is that a finding of genocide is the only justice for victims. Yet, crimes against humanity and war crimes are equally serious offences carrying individual responsibility in international criminal law. But now many victims may now feel that these constitute mere consolation prizes.

The vitriol directed against the ICJ and Myanmar’s legal team is also misguided. Fair trial standards require a robust defence by a competent and independent legal team that represents the client’s interests. The lawyer should never be associated with the alleged crimes of the accused. Fair trials in Myanmar are blighted by the denial of the accused the right to competent and impartial counsel. The government and the judiciary often associate lawyers with the alleged cries of their clients, which undermines the rule of law. It is vital that the international community provide an example to the thousands of people routinely denied this right watching live in Myanmar.

We don’t yet know what the court will decide on provisional measures (similar to injunctions at the domestic level) or on the merits of this case. The outcome is uncertain and the case likely to last a long time. This will be difficult for the victims who may not understand this legal process and seem set for disappointment. Regardless of the decision at the ICJ on intent, the facts are the same on the ground and business risks being found complicit in or contributing to serious human rights violations.

Let’s hope the court asserts jurisdiction and demands Myanmar cooperate with criminal investigations at the ICC or other UN mechanisms. It would set a new precedent that the accused cannot get away with a crime by preventing its investigation. It would also show the military – and the quasi civilian government – that the rule of law applies to all, at least at the international level. This is a wake up call for foreign investors – this is not business as usual. Yet international accountability might point the way towards justice, human rights and the rule of law as the basis of sustainable development in Myanmar in the future.

20190201_115216Recent statements from international investor groups (Oxford Business Group (OBG); The British, Australian, American, European, Italian, German and French chambers of commerce in Myanmar) and investor home states such as Japan extolling the virtues of investment and economic development as a panacea for many of Myanmar’s ills begs the question: What is development and how is it connected with the rule of law and human rights? How should the international community – aside from investors whose primary motivation is profit – conduct development engagement with states who systematically violate human rights?  While no one promotes further isolation for Myanmar, surely the United Nations, international development organisations and other states must continually put human rights at the centre of their agenda and confront uncomfortable violations rather than leave them unmentioned in the name of engagement.

At a recent conference on the Sustainable Development Agenda 2030 and The Rule of Law at the Prolaw Rule of Law and Development Institute in Rome, I gave a related talk using Myanmar as an example. The text of my intervention is as follows:


As economic and political reforms took hold in Myanmar, the country was viewed as a great experiment in Business and Human Rights engagement. Was it possible that a country could emerge from isolation and join the global economy while improving human rights and avoiding the resource curse? Could the transition, assisted by international development engagement, increase investment and the rule of law while avoiding the pitfalls that have befallen other developing states? Could Myanmar uniquely avoid or at least mitigate corruption and cronyism, rising inequality, widespread land grabbing, environmental degradation and the protection of investors at the expense of local communities that feature in societies where impunity and unaccountability restrict access to justice and encourage human rights abuse? Would the rule of law and human rights really guide transition and development? Or would it be business as usual?

In this talk I will discuss Myanmar’s unique transition and its tendency towards ‘rule by law’ and ‘tranquillity’ and consequences for the rule of law and human rights. In doing so, I criticise the international community’s policy of engagement with the regime when it meant putting forward the rule of law ‘lite’, as in minus human rights. I ask what the Sustainable Development Agenda’s Goal 16, which puts the rule of law and human rights at the centre of development rhetoric, actually means in practice. Is it a sagacious manoeuvre to ensure recalcitrant states make human rights a priority or is it a capitulation, an admission that strategic, economic and political engagement trump human rights?

In order for SDG 16 to be meaningful, it must mean a rights-based approach to development that ensures participation, non-discrimination, equality and attention to vulnerable groups. This requires access to justice and accountability for violations of rights to be protected in law. Key to this is institutional reform designed to prevent and ensure non-repetition of human rights violations – in other words a judiciary that balances power. It must hold powerful perpetrators accountable and be independent enough to hear challenges to government policy. It must be able to decide against the government (and in Myanmar’s case, the military) when it contravenes the law. If not, a rule of law ‘lite’ emerges that preserves the status quo, increases inequality, and fosters a culture of impunity in which governments disregard human rights and security forces commit crimes against humanity.

The palpable optimism of the international community following the reforms from 2011 should have been tempered by a better understanding of what a ‘discipline-flourishing’ democracy actually means. Transition in Myanmar is not an uprising of democratic forces over military dictatorship. It is a planned transition where the military and key individuals of the past regime remain directly in control or highly influential in the political, economic, social and security institutions of governance. The judiciary is not independent or capable of upholding human rights and the rule of law. Constitutional provisions provide impunity and protect the military’s role. Moreover, the military maintains vast networks of economic power and influence. I’ve heard the transition described as the ‘retirement plan for the generals.’ As many foreign investors have found, it is difficult to do business in Myanmar without working directly or indirectly with the military or its ‘crony’ businessmen.

If that was not enough, the obvious problems with access to justice and the independence of the judiciary should have been a warning. The military does not answer to the judiciary and instead runs its own system of accountability. Old colonial laws are still on the books and are misused to violate human rights. New laws have been promulgated that do not meet international standards for the protection of human rights. Constitutional rights cannot be asserted in the courts by civilians. The judiciary lacks capacity and is vastly under resourced. International standards applicable to arrest and detention as well as fair trial standards are not observed. The executive represented by the Office of The Attorney General exercises disproportionate influence over the judiciary, does not show a functional independence and, while quick to impose the rule of law on those opposing the government or military, does not hold human rights violators accountable. Legal education has been undermined and the Bar Association remains too closely linked to the executive. Corruption is rife. Not surprisingly, the public distrusts the legal system as a whole, which undermines the concept of the rule of law itself.

Yet political engagement and economic investment prevailed as policy. Remember President Obama’s ‘good news story’? Sanctions were dropped. Investors sought out human rights experts as part of their due diligence but did not want to hear anything that countered the prevailing narrative that Myanmar is open for business. We asked them what level of human rights risk assessment resulted in the decision not to invest; usually the exercise was to mitigate risk to their brand rather than prevent human rights violations. Likewise, diplomats wondered aloud why human rights groups were so ‘gloomy’ when everything was improving so fast. The international financial organisations and their dominant member state representatives put forward the usual neoliberal development strategies, focussing on protecting investment, privatisation and deregulation.

The Sustainable Development Agenda 2030 puts the rule of law at the centre of the international community’s development goals. It ‘mainstreams’ the rule of law throughout and Goal 16 on Peace, Justice and Strong Institutions. Target 16.3 commits the international community to: ‘Promote the rule of law at the national and international levels and ensure equal access to justice for all’. It provides for a legal dimension to development that uses the language similar to human rights but omits the law. The SDGs emphasise access to justice and the principle of equality before the law as well as the importance of quality, inclusive institutions. Despite the watering down of its rule of law provisions during the drafting process, there is widespread agreement on the SDGs and therefore on the centrality of the rule of law to the development agenda.

Human rights organisations have now begun to ask what this means in practice. They expect that the rule of law is contingent upon human rights. But will the acknowledgement of the rule of law in the SDGs enhance or undermine international human rights law treaty commitments? After all, legally binding commitments to the rule of law and human rights are already in place. Even Myanmar has signed the Covenants on Economic, Social and Cultural Rights, on the Elimination of All Discrimination Against Women, on the Rights of the Child, and of those with Disabilities. It is also bound by customary international law principles regarding the rule of law and human rights, particularly in access to justice and equality before the law.

The state already has the obligation to protect human rights even if this means slowing economic development until legal protections are in place. This is particularly important in a transitional society with weak governance. Do rule of law provisions in the SDGs ensure that these commitments are not disregarded during engagement with the international community in a race to the bottom to attract or promote investment? Or do the justify development engagement with human rights violating governments without the inconvenience of legally binding implementation or enforcement mechanisms?

Development practice seems to indicate that the SDGs do not strengthen human rights law commitments. In Myanmar, for example, few members of international community were willing to publicly acknowledge that widespread human rights abuses indicate a culture of impunity that escalates quickly into crimes against humanity. The international community seemed convinced that the ongoing armed conflicts and violations of all types of human rights across the country would change with economic development. Even the arrest and detention of hundreds of Rohingya men and boys without trials or representation in late 2016 and early 2017 did not dissuade the international community from its policy of engagement despite constant warning from human rights organisations. The international community seemed to want to talk rule of law but not to mention topics off limits such as human rights violations themselves. It seems clear that the need to secure strategic interests and investment opportunities remain paramount considerations.

The danger of this approach to mainstreaming the rule of law is that human rights become a separate part of the agenda to be set aside when necessary. As a result, development and the rule of law can become a series of technical fixes, judicial implants and tick-box exercises that do not address the underlying injustices and inequalities that fuel conflict, instability and human rights violations. In order to engage, the international community can adopt a rule of law ‘lite’ approach, that does not address human rights concerns. In this scenario, no one says Rohingya in exchange for development engagement. Capacity building for the police, prisons and courts can take place while impunity is rife. Moral – and legal – legitimacy is ceded to advance political, economic and strategic interests.

The Rule of Law ‘Lite’ approach promotes engagement with authoritarian governments but may encourage governance antithesis to the realisation and protection of human rights. Authoritarian capitalism needs forced stability and silenced opposition to promote investment and development. It means disregarding the rights of marginalised people and the destruction of the natural environment in the name of growth. In Myanmar the NLD created a Rule of Law and Tranquillity Committee rather than a Rule of Law and Human Rights Committee. Regional neighbours offer investment without human rights and environmental safeguard conditions. Does the international community need to engage this approach to remain relevant?

For the Sustainable Development Agenda’s Goal 16 (as well as other SDGs with rule of law aspects) to counter human rights violations it must be guarded against the Rule of Law ‘Lite’ approach. The international community must take a principled stand against rule by law culture and impunity. It must insist on and support institutional reform of the state security apparatus and judiciary to ensure access to justice as well as a balance of power. It must support domestic civil society initiatives in this regard and promote meaningful participation and accountability in governance secured by law.

Reform at the national and international level is a long-term process that normally lags far behind economic and political reform. The approach is not popular with powerful voices calling for rapid economic development and massive investment without these protections in place. Supporting it and ensuring that human rights and environmental protections are central calls for strong leadership at the international and national levels. But that is another issue for another conference…

The claim against Vedanta, under review at the UK Supreme Court, will decide whether a UK-incorporated parent company has a duty of care, and therefore liability in tort law for negligence, to people affected by the operations of its subsidiary, Konkola Copper Mines (KCM), in Zambia.

The claimants, 1826 citizens living in the Chingola region of the Copperbelt Province in Zambia, have suffered personal injury, damage to property and loss of income, amenity and enjoyment of land as a result of pollution and environmental damage caused by discharges of harmful effluent from the Nchanga mine since 2005. Their lawyers argue that the parent company in the UK controls the subsidiary and therefore has a duty of care. They claim that significant legal and practical obstacles inhibit access to justice in Zambia, a position upheld by the UK Court of Appeal in 2017.

Vedanta and KCM’s lawyers do not dispute the damage that has been done but have appealed to the Supreme Court arguing that their corporate structure does not give them enough control over KCM to give rise to this duty of care and that, in any case, the correct forum for the claims against KCM is the Zambian courts. Alternatively, they argue that if a duty of care does exist, the UK should not exercise this jurisdiction as the ‘natural forum’ is the Zambian court, that the claimants can obtain justice there, and that removing the case would undermine the development of the Zambian judiciary and open the floodgates to similar claims against UK companies.

Essentially, the case must balance the interests of access to justice for victims of environmental and human rights law violations resulting in personal and property damage with opening the floodgates to claims against the subsidiaries of UK companies around the world in British courts. The decision will have ramifications for access to justice for business-human rights and environmental abuses in all developing states, including Myanmar, where access to justice against subsidiary companies is limited and a potential claim could be made against the parent company in its home state.

 Facts of the Claim:

  • The respondents at the Supreme Court are 1826 Zambian citizens (“the Claimants”) who reside in the Chingola region of the Copperbelt Province in Zambia.
  • The second appellant (The defendant) (“KCM”) is a public limited company, incorporated in Zambia. KCM is the owner and operator of the Nchanga copper mine in Zambia. It is the largest private employer in Zambia, where it employs approximately 16,000 people (the vast majority at Nchanga).
  • The first appellant (defendant) (“Vedanta”) is a company incorporated in the UK which acts as a holding company for a group mining companies, including KCM.
  • On 31 July 2015 the Claimants issued proceedings against the KCM and Vedanta. They claimed to have suffered personal injury, damage to property and loss of income, amenity and enjoyment of land as a result of pollution and environmental damage caused by discharges of harmful effluent from the Nchanga mine since 2005.
  • On 19 August 2015 the claimants were permitted to serve the claim form on KCM. In September and October 2015 Vedanta and KCM respectively applied for declarations that the UK court lacked jurisdiction to try the claims or, alternatively, that it should not exercise such jurisdiction that it might have. The Court of Appeal upheld the dismissal of those applications.
  • For a full case details see: Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) Case ID: UKSC 2017/0185. Information available at:

An Extraterritorial Duty of Care?

In order for the villagers to make a claim against Vedanta in tort law, it must be shown that a duty of care exists, that the duty has been negligently breached, and that the breach has resulted in the damages. In absence of a duty of care on the part of Vedanta, no claim can be brought against the parent company in the UK for the acts of its subsidiary KCM in Zambia.

Lawyers for the defendants argue that the duty of care does not extend to cover Vedanta; liability would require establishing a novel duty of care. The courts would then need to use the Caparo test to decide whether there is a relationship of sufficient proximity between Vedanta and the Zambian claimants, whether the damages are foreseeable and, crucially, whether it is fair, just and reasonable to create this new duty of care.[1]

The lawyers for the claimants argue that the duty is not novel, that under the common law Vedanta owed the claimants a duty to exercise reasonable care in monitoring and controlling the KCM to prevent its activities from causing harm. Therefore, the duty of care is straightforward: the only novel aspect of this case, they assert, is that KCM is in another legal jurisdiction. Normally strict liability would apply. The claimants argue that the unusual level of control, direction and knowledge exercised by Vedanta in relation to the allegedly harmful operations by KCM indicates that a special relationship and an assumed responsibility exist, evidenced by company policy, documents related to KCM’s management and witness testimony.  A corporations should not benefit from an international structure straddling various legal jurisdictions while escaping liability for human rights and environmental abuses.

The claimants position has been bolstered by an Amicus Curiaesubmission on behalf of the International Commission of Jurists and the Corporate Responsibility Coalition. The interveners submit that, whether or not this is a novel duty situation, national policy, such as the government publication Good Business: Implementing the UN Guiding Principles on Business and Human Rights, international standards such as UN Guiding Principles on Business and Human Rights, the UN Global Compact, and the OECD Guidelines for Multinational Enterprises as well as comparative law jurisprudence support the Court of Appeal’s conclusion that Vedanta (at least arguably) owed a duty of care to the claimants.[2] The intervention argues that the trend is towards parent company liability in order to ensure access to justice in a global economy.

The UK Supreme Court must now whether the duty of care in this situation extends extraterritorially, and if not, whether it is fair, just and reasonable to create a new duty of care. The decision is influenced by the policy doctrine: the Court will balance, among other things, the interests of access to justice for the claimants with the prospect of opening the floodgates to similar cases against corporations domiciled in the UK. The UK has made important commitments to the rule of law, human rights and access to justice, especially in the context of business and human rights that should guide the court’s decision. However, in the context of Brexit and fears over its consequences for the economy, will exposing UK corporations to increased liability be in the economic interest of the country?

Access to Justice and Forum Non Conveniens

So, what is the right forum to hear this type of claim? In English law, the appropriate forum is the one in which the case may most suitably be tried in the interests of all the parties and the ends of justice. Where the jurisdiction of the English court is based on proceedings outside its jurisdiction, permission will only be granted if the court is satisfied that England and Wales is the proper place (or forum conveniens) in which to bring the claim. Moreover, the common law doctrine of forum non conveniensallows a court to dismiss a civil action (even though the forum court has jurisdiction over the case and the parties) where an appropriate and more convenient alternative forum exists in which to try the action. The Supreme Court is also examining the proper application of EU law principles and cases to claims brought against an English domiciled parent company, where the non-EU claimant sues both an EU-domiciled parent company and its non-EU subsidiary company[3] but that is the topic for another post.

Those concerned with access to justice for victims of human rights abuses argue for the home state, where the parent company is incorporated, to hear such claims in the belief that the judiciary is more developed, that the rule of law is followed and that there is greater capacity for legal representation. They wish to access home state legal representation with the resources and capacity to undertake complex investigation. Claimants in host states are concerned that local subsidiaries will not pay damages and that only the parent company has the resources to do so.

Claimants are concerned that the power and influence of multinational corporations, upon whom the host state is dependent for investment, can dissuade local host judiciaries from deciding these claims impartially. They point out that local environmental and human rights laws and regulations often do not match international standards (which is why the company operates there in the first place) and that practical obstacles, such as distance and access to courts, availability of legal representation, hamper claims. They claim that there can be undue pressure on victims from local officials, security forces and communities to forgo claims. Moreover, they worry that the limited capacity of local lawyers – who often cannot act pro bono– can undermine cases as investigations are expensive and time consuming.

Vedanta seeks to use corporate law’s various limited liability structures to explain that the local subsidiary bears full responsibility for damages and that the parent company lacks the proximity to control its daily operations. They argue that therefore the ‘natural forum’ is the host state where the damages occurred, and the parties reside. In choosing the UK courts, the claimants and the English law firm representing them, are forum shopping to their advantage. The lawyers argued that many other law firms are lining up to take similar cases, including against Vedanta on behalf of other villagers in the area, and are ready to proceed when the floodgates are opened, giving rise to complications from parallel judgements both in the UK and abroad.

Vedanta’s lawyers sought to demonstrate that access to justice is obtainable in Zambian courts, citing various civil claims and reforms to the judiciary. They argue, removing complex cases from local judicial systems in favour of home states would undermine their development and appear as a form of judicial imperialism. This is an interesting argument considering the corporate support for international arbitration in investment law: when it is their interests at stake, they seem to favour removing the cases from local jurisdiction.

Issues to consider in Myanmar

The facts of the Vedanta case are familiar to lawyers and activists concerned with the impact of business on human rights and the environment in Myanmar. It is well documented that local communities face severe obstacles in access to justice when seeking damages against powerful, influential corporate defendants. The rule of law in Myanmar is not well established. Laws and regulations concerning human rights and the environment do not yet meet international standards, particularly in the area of access to justice for violations. The courts have shown themselves to be less than independent in cases involving foreign owned companies as often the interests of the military or influential businessmen are at stake. The courts suffer from a lack of capacity and resources to hear these complex cases.  Lawyers cannot act pro-bono, lack capacity and resources to conduct proper investigations and often must travel great distances to take cases. There is very little confidence in the judiciary as an arbiter of rights or in upholding justice.

The Vedanta decision raises a lot of relevant questions relevant to Myanmar:

  • Would it be better for cases to be heard against parent companies for the actions of their subsidiaries in Myanmar, effectively bypassing local courts? What balance should be struck between access to justice for victims and developing the courts in Myanmar?
  • Are companies justified to argue for the use of local courts for civil claims against them while simultaneously lobbying for special arbitral courts, both national and international, to hear cases concerning their investment interests?
  • If the Vedanta claims can proceed, will similar claims be attempted in other common law jurisdictions based on similar principles and precedent? While UK based companies have limited investment interests in Myanmar, other common law neighbours are significant players: For example, India, Malaysia and Singapore have comparable systems and companies with many investments and subsidiaries operating in Myanmar.
  • Will this set a precedent that improves access to justice for victims of human rights and environmental abuses? Will it help prevent multinational corporations from escaping liability by hiding behind the corporate veil?
  • If the UK Supreme Court confirms that claims against the parent company can be taken in UK courts for the actions of subsidiaries abroad, will it open the floodgates and become a major disadvantage for the UK as a home state to multinational corporations? Are home states now engaged in the regulatory ‘race to the bottom’ once thought of as the preserve of developing host states?

[1]Caparo Industries PLC v Dickman[1990] UKHL 2.

[2]For the full details see: ICJ and CORE, Draft Statement of Intervention, Available at:

[3]For more on this topic see the Judgement Appeal at: [2017] EWCA Civ 1528

The right to effective remedy – the ‘third pillar’ of the United Nations Guiding Principles on business and human rights (UNGPS) – is already a fundamental human right. If realized, the right would alleviate business-related human rights abuses and possibly render unnecessary the Forum in November. The international community must make clear that access to remedy is the priority and that non-binding arrangements and other guidelines are secondary to this legal obligation.

Although the international community has made progress encouraging companies to respect and States to protect human rights, access to remedy must underpin these UNGP ‘pillars’, particularly in developing or transitional states like Myanmar. Progress notwithstanding, legal accountability and access to remedy require international regulation.

The UNGPs are an important breakthrough. But reducing them to three distinct ‘pillars’ obfuscates the central problem in many developing or transitional states: access to remedy in a dysfunctional national legal system that lacks independence. In these contexts, remedy should not be conceived as one of three separate pillars: it must be the foundation that holds the entire structure together.

Investment in Myanmar has long been associated with human rights abuse. Ethnic armed conflicts are fuelled by competition for natural resources such as jade and hydropower that result in land grabs. Foreign investors, often in joint ventures with military-owned or crony companies, have been involved in serious human rights abuses in the past. These groups still control the economy and human rights violations associated with economic development, such as land confiscation and displacement, continue today. Even where a investor intends to respect human rights, they may operate in a Special Economic Zone or an industrial park developed in violation of human rights. As a result, people associate investment with the military, human rights abuses, and impunity. Even the current Rohingya refugee crisis, while not caused by business related human rights abuse, looks likely to result in them.

Myanmar does not provide adequate access to remedy for victims of business related human rights abuses. Myanmar’s decades of authoritarian rule have systematically weakened the judiciary and compromised the independence of its legal system. The government is unable or unwilling to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within its territory those affected can obtain justice.

The judicial system in Myanmar is under-resourced, lacks capacity and is corrupt, particularly at the township level where most people access it. Lawyers do not have an official independent bar association. The current legal body is headed by the Attorney General and has punished its members for taking on contentious cases. Many lawyers lack capacity and are ineffective. The executive branch, powerful crony businessmen and the country’s military and security apparatus, maintain improper influence, over the judiciary especially in politically sensitive cases – a category that includes business related human rights abuses. Fair trials are uncommon. As a result, people do not trust the judicial system. Yet, into this accountability void billions of dollars of new investment flows.

The Attorney General’s Office, the Supreme Court and the NLD government have all signalled their commitment to reform in line with the rule of law and rights. Lawyers are emboldened and increasingly willing to take on tough cases with less fear for their careers. However, political and legal obstacles render criminal or civil litigation unlikely to hold powerful actors accountable. Overcoming impunity requires generational change, reform of legal education, increased capacity building and continued support from the international community.

Non-judicial mechanisms like administrative procedures, national human rights commissions and ombudspersons can play a complementary role where the judiciary may lack resources or independence. But they can only be effective if the mechanisms are compliant with due process standards and can provide remedy. Unfortunately, Myanmar’s National Human Rights Commission as presently constituted is not capable of providing remedy and has failed as an independent human rights institution. It has failed to meet the criteria put forward in the Paris Principles and has been widely criticised for a lack of impact.

Businesses in Myanmar also have a responsibility to facilitate non-State-based procedures, such as operational grievance mechanisms. These mechanisms are perceived to improve community relations where lack of access to remedy can result in unaddressed grievances, protests and violent confrontation. They can help to improve access to remedy and reparation where business has caused or contributed to adverse impacts.

International organizations have begun to work with Myanmar to develop a National Action Plan (NAP) to implement the UNGPs. They hope to build the capacity of key partners on business and human rights issues and develop a baseline assessment. The development of a NAP should focus on access to remedy at all levels. It should address impunity, examine the legal obstacles – including the harassment of human rights defenders – and include measures to ensure the courts are able and willing to hold business accountable for human rights abuses. Non-judicial mechanisms should not be a platform for the government to make non-binding commitments to human rights.

As access to remedy has been the ‘forgotten’ pillar, in practice the UNGPs have made little difference to those whose human rights are violated in the context of business activity where courts or non-judicial mechanisms do not provide justice. Alone, initiatives undertaken to implement the UNGPs will not ensure access to remedy where the rule of law is weak, the legal system underdeveloped, and the judiciary unable to perform its duties independently. Where states are unwilling or unable to fulfil their human rights obligations, a binding treaty is necessary to fill the accountability gap.

The corporate duty to respect human rights is meaningless unless there is access to remedy when companies fail to follow the law. Likewise, the state duty to protect fails unless victims are able to review and challenge the conduct of the state ensuring it meets national and international standards. The UNGPs will have little impact unless they improve access to remedy for human rights abuses.

Daniel Aguirre is a senior lecturer at Greenwich University. He has spent the last 4 years in Myanmar as an international legal advisor for the International Commission of Jurists, implementing a Judicial Reform Project that focused on Business and Human Rights.

This article first appeared in the Cambridge Business and Human Rights Law Journal Blog and is available here: 

Yesterday I was asked by the Independent and the Myanmar Times to comment on the Pope’s visit to Myanmar and his use of the term Rohingya. Here is my response:

The Pope was damned if he did and damned if he did not say the word Rohingya. Although it is disappointing that he did not refer to the Rohingya by name, his visit brought attention to the human rights violations against them – calling on Myanmar to “respect the rights of all who call this land their home” – and hopefully avoided further inflaming religious intolerance amongst hard-line Buddhist nationalists waiting to pounce on language they find unacceptable.

That the international community have declined to address human rights violations against minorities and especially the Rohingya is nothing new: they long ago sacrificed the Rohingya’s right to identity in the name of engagement, particularly to ensure their ability to invest and trade. It is only the inevitable humanitarian crisis that has put pressure on the international community to act.

It is up to the diplomats in Yangon, the international community and especially neighbouring countries to use their influence with the gov’t to halt violations of human rights and protect minorities in Myanmar. It is an indictment of their previous efforts that we place so much emphasis on the Pope’s intervention.

Most of all, national leadership is required; Myanmar’s public intellectuals, religious leaders and voices from civil society need to promote a more inclusive, tolerant version of a national identity that respects human rights.

The Independent’s coverage of the controversy is here:

The Myanmar Times coverage is here:






On Monday evening I was interviewed on Al Jazeera news and asked to comment on the human rights violations that have lead to the humanitarian crisis and ethnic cleansing of the Rohingya people in Myanmar. Here are my answers:

1: Bob Geldof has returned his Freedom of Dublin, in protest of Aung San Suu Kyi receiving the award. Does action like his throw any weight to the argument and put pressure on others handing back their awards?

High profile private initiatives like Bob Geldof’s are good because they draw attention to serious human rights violations that have given rise to a catastrophic humanitarian crisis. A lot of people, including world leaders, listen to celebrities. We’re talking about his actions here now.

However, let’s make sure this is a story about the more than 600 000 refugees and the hundreds of thousands of others whose rights are violated in Rakhine and across Myanmar. Ironically, it was not so long ago that giving Aung San Suu Kyi awards was a method to draw attention to a human rights crisis; now stripping her of awards and others handing back theirs is drawing attention to a human rights crisis. 

2: Does it seem like Myanmer is now lower on our radar, and we’ve become immune to the abuse?

Well, if we have become immune to systematic and widespread human rights abuse it does not bode well for humanity.

Unfortunately the international community has been so desperate for good news story and to believe the prevailing narrative that Myanmar is ‘open for business’ that they refused to see the human rights violations predicted to give rise to the situation with the Rohingya. They deemed engagement, particularly economic through trade and investment, worth not pressing Myanmar’s government to hard on human rights. They avoided confronting the issues that human rights organisations on the ground have been pointing out. 

Even worse, neighbouring states seem totally uninterested in the treatment of ethnic minorities and human rights law as part of their international relations with Myanmar, particularly if they have vested interests and investment in the country. ASEAN has no mechanism to deal with this type of crisis and has no interest in developing one. While they want harmonisation of trade and investment laws, they do not want human rights laws. The increasingly authoritarian bent of Myanmar’s neighbours doe not provide good examples for a nascent democracy to aspire. 

3:  Is Aung San Suu Kyi Ain a position that she can’t speak out against the military, hence why she is still very quiet on the matter?

Aung San Suu Kyi is indeed in a difficult position: the NLD has placed a priority on and spent much of its time in power trying to build trust with the military to promote peace and development. Many in the NLD government are former political prisoners themselves. The NLD does not control the military or key departments of the government. The Judiciary is not independent and cannot review the actions of the military. The military may be very pleased with the situation as they conduct ‘clearance operations’ against ethnic minorities with he usual impunity while Aung San Suu Kyi takes the blame. 

The NLD’s attempt to engage and build trust with the military has resulted in the sacrifice of human rights. This inturn has undermined the goal of peace and stability. Many national and international organisations warned the NLD leadership that sacrificing human rights would undermine their goals in the long term. 

Aung San Su Kyi and the NLD should use their tremendous moral authority to encourage the people of Myanmar to consider a more inclusive national identity based on the rule of law and human rights.  But the time for that may have passed. The catastrophic results of silence may have already occurred. Failure to address humanitarian access, safe, dignified, voluntary and sustained returns, as well as true reconciliation between communities will ensure that human rights abuse continues to fuel the Rohingya crisis. 



On Saturday evening I was asked by Al Jazeera news to comment on economic aspects of the Rohingya human rights crisis in Rakhine State. Here is a summary of my comments:

Al Jazeera: Are you surprised to learn that the Myanmar government will harvest the rice crops of displaced Rohingya?

Me: No, I’m not surprised. For a government that pursues policy resulting in hundreds of thousands of displaced people land and crop expropriation is not a big leap. This is part of a national human rights problem where an estimated half of the population does not have the legal right to the land they live on; the system of land tenure in Myanmar is broken. The Rohingya will suffer, in particular, because of the widespread acceptance that they are illegal immigrants in the first place.

Al Jazeera: Is land grabbing the reason for this ethnic cleaning and conflict? Is the government trying to get a hold of not just the rice but the valuable resources in the area?

Me: Certainly relatively plentiful natural resources in Rakhine are underexploited. But this is an ethnic, religious and nationalist conflict. Land grabbing is not the cause but will likely be one of the results.

Al Jazeera: What is next for the Rohingya? What should the international community do or is it too late?

Me: Well, this situation should not be a surprise to the international community. Human Rights organisations have been warning the international community, diplomats in the country and the national government that human rights violations against the Rohingya were causing a precarious situation likely to result in violence, mass exodus and displaced people. ‘Gloomy’ warnings were disregarded as the preferred narrative was that Myanmar is ‘open for business.’

The international community needs to now support the Rohingya and ensure the cost of this humanitarian disaster does not fall solely on Bangladesh. Neighbouring countries need to encourage the Myanmar government to protect, promote and fulfil the human rights of all people in Rakhine State, especially the Rohingya, and ensure they are able to return to their land. But most importantly, leadership at the national level is required to foster a culture more accepting of human rights. This is not just the role of the government and Aung San Su Kyi:  Public intellectuals, academics, civil society organisations, lawyers and national media all need to speak out in support of human rights in Rakhine State.


This article appeared in the Irrawaddy on 25 May 2017 here:


Burma’s 2016 Investment Law and the implementing Investment Rules issued in April 2017 create space for the government and civil society to facilitate responsible investment and exclude investors that have track records of environmental destruction and human rights abuses.

This means that affected individuals and communities must now test Burma’s commitment to the rule of law. There are new opportunities for civil society to use law to hold them accountable. In this regard, both international law and Burma’s constitution guarantee access to justice for rights abuses.

The Investment Rules instruct the Myanmar Investment Commission (MIC) to consider whether investors have demonstrated a commitment to responsible investment. In considering the good character and reputation of the investor, the MIC may study whether the investor or any associate with an interest in the investment broke the law in Burma or any other jurisdiction. The rules explicitly mention environmental, labor, tax, anti-bribery and corruption or human rights law.

What this means is that if an investor is determined to have committed a crime, has violated environmental protection standards or was involved with human rights abuses, the MIC should not grant it a permit.  If such a company applies for an investment permit, civil society should bring its record to the attention of the MIC and advocate for the rejection of a permit.

Successive governments in Burma have focused on increased investment to develop the country and improve its people’s standard of living.

At the same time, human rights and environment proponents from civil society have opposed many investment projects, citing the impact on the environment and human rights of local communities. They complain that land rights are not adequately protected, that environmental impact assessments are not implemented and that they lack access to justice for corporate human rights abuses.

There are challenges to using the law to protect human rights in Burma. Disputes related to business activity are often considered sensitive political matters in which the courts are unable or unwilling to intervene. They are reluctant to review crucial decisions of administrative bodies or to hold rights abusers accountable.

But community activists, human rights defenders and lawyers have increased opportunities to pressure the courts to apply the law and should do so. Lawyers have an important role in protecting human rights by representing local communities.

Courts must become a venue to challenge administrative decisions that allow for irresponsible investment that does not comply with national law, and where appropriate, obtain remedies and reparations for victims of human rights violations.

The Investment Law and its rules, which govern both local and foreign investment except within special economic zones, provide legal guarantees for investors to access information and protections against expropriation including compensation and access to due process if changes in regulation affect their business. Investors can also access long-term rights to use land.

Civil society should help to ensure that only responsible investors benefit from these protections. According to the law, the MIC is the gatekeeper that issues permits and endorsements for many would-be national and international investments likely to cause a large impact on the environment and local community.

In order to ensure that the protective aspects of the law are effective, courts must have some power of review, at least to ensure that administrative bodies, such as the MIC, are acting reasonably and in accordance with the law, while respecting and protecting human rights. If the MIC grants permits for companies that do not meet the requirements outlined in the Investment Rules, their decisions must be subject to review by the judiciary.

Burma’s courts have the authority to review administrative decisions, particularly through the application of constitutional writs. Lawyers can use the writs of mandamusand certiorari to secure the performance of public duties and quash an illegal order already passed by public bodies such as the MIC. This would help ensure the MIC uses its mandate to prevent irresponsible investment.

Likewise, investors that fail to respect human rights or unlawfully cause damage to the environment must be held accountable; but there are few options to do so in Burma. Criminal prosecutions against companies, actions imposing administrative sanctions, and civil suits face a variety of procedural hurdles, particularly if involving joint ventures with state run enterprises.

For example, a negligence civil suit brought by villagers against the Heinda tin mine in Dawei District was unsuccessful because the 1909 Limitations Act demands complaints to be brought within one year of damage. Section 80 of the Civil Procedure Code requires prior notice and the names of plaintiffs to be given to the government two months before filing a suit against the government and allows small procedural defects to preclude a claim. Lawyers are sometimes unfamiliar with these procedures and communities are reluctant to put their names to such cases fearing reprisals.

Clearly there are significant challenges to ensuring that investment in Burma does not adversely affect human rights. To overcome these, civil society and lawyers must engage the administration—the MIC—to ensure only responsible investments is permitted and start to use the judiciary to review its actions. Likewise, cases must continue to be taken against investors that abuse human rights and harm the environment. Powerful investors must be constrained by the confines of the law, including human rights law.

Unless civil society and lawyers can use the legal framework to address these concerns, Burma’s judicial system is unlikely to develop; lawyers will not gain valuable experience and the public will remain distrustful. The process is long and arduous but necessary to protect human rights and the environment from irresponsible investment.

In February, 2017 the International Commission of Jurists released a comprehensive report on the Special Economic Zones and the corresponding laws in Myanmar. It examines the State duty to protect human rights and finds that the laws come up short. It  provides recommendations on how the government in Myanmar can take steps to avoid repeating mistakes of the past as it develops the SEZ in Kyauk Phyu, Rakhine State.

The Government of Myanmar should impose a moratorium on the development of Special Economic Zones (SEZs) until it can ensure SEZs can be developed inline with international human rights laws and standards, said the ICJ at a report launch held today in Yangon.

The 88-page report, entitled Special Economic Zones in Myanmar and the State Duty to Protect Human rights, assesses the laws governing Myanmar’s SEZs and finds that the legal framework is not consistent with the State’s duty to protect human rights.

For example, a case study examining the Kyauk Phyu SEZ in Rakhine State shows that the land acquisition process initiated in early 2016 lacks transparency, does not comply with national laws on land acquisition, and risks violating the rights of 20,000 residents facing displacement.

“The SEZ Law undermines the protection of human rights, and critical legal procedures are often poorly implemented, so the Kyauk Phyu project risks repeating the rights violations that have been associated with SEZs in the past,” said Sam Zarifi, the ICJ’s Asia Director.

“The NLD-led Government can make a break from the past by ensuring economic development projects benefit Myanmar’s people, rather than rushing to facilitate projects which result in human rights violations and ultimately undermine sustainable development,” he added.

Myanmar’s legal framework for SEZs is based on the 2014 SEZ Law and incorporating national laws governing land, labour and the environment.

The report shows that while national laws require Environmental Impact Assessments and the application of international standards on involuntary resettlement, the SEZ Law does not establish clear accountabilities for the implementation of these procedures.

This has contributed to human rights violations and abuses in each of Myanmar’s three SEZs, the report says.

“It has been encouraging that government officials have emphasized their commitment to protecting human rights in SEZs in line with the rule of law,” said Sean Bain, the ICJ’s Legal Consultant in Myanmar and lead author of the report.

“The legal reforms recommended in this report will be critical to meet these commitments while fulfilling the State’s duty to protect human rights in SEZs. We also suggest that investors take heightened due diligence measures to ensure they are not complicit in rights violations,” he added.

The report was based on extensive legal research as well as interviews with over 100 people, from affected communities to investors and government officials, during 2016.

Key recommendations to the Government of Myanmar

  • Protect human rights in Myanmar’s SEZs by amending the SEZ Law, through meaningful public consultation in accordance with international standards.
  • Order a moratorium on the development of SEZs, and on entering related investment agreements, until the SEZ Law has been amended to ensure conformity with international human rights law and standards.
  • Commission a Strategic Environmental Assessment for the Kyauk Phyu SEZ, in line with Myanmar’s environmental conservation laws. This would involve consultation to inform decision-making on the Kyauk Phyu SEZ and related projects, by identifying cumulative environmental and social impacts of all the developments in Kyauk Phyu, while considering conflict dynamics and economic development in Rakhine State.
  • Suspend land acquisition in Kyauk Phyu until after the completion of a resettlement plan that is in line with international standards, as required in the EIA Procedure.


Sean Bain, ICJ Legal Consultant in Myanmar, t: +95 9263533230 ; e: sean.bain(a)

Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-ENG(full report, in PDF)

Myanmar-SEZ assessment SUMMARY-Publications-Reports-Thematic reports-2017-ENG (executive summary of the report, in PDF)

Myanmar-SEZ assessment full-Publications-Reports-Thematic reports-2017-BUR (Burmese version of full report, in PDF)

Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-BUR(Burmese version of the executive summary, in PDF)

Dear Readers,

The draft policy has been prepared by MONREC and is being circulated. The draft policy is attached below. It is vital that civil society in Myanmar engage by providing comments and participating in upcoming consultation.

The purpose of this National Environmental Policy is to provide long-term guidance for government, civil society, the private sector and development partners in Myanmar on environment and sustainable development objectives in Myanmar. The Policy will guide detailed strategic frameworks and action plans for the environment sector, including green economic development, climate change and waste management strategies, as well as provide guidance for the mainstreaming of environmental considerations into all other plans and policies developed in Myanmar.

It proposes the following framework:


By 2030, Myanmar will be activelyprotecting and managingthe environment in ways that maintain biodiversity, support inclusive social and economic progress, respect human rights, and enhance quality of life for all people now and in future generations. Myanmar will have prioritized low-carbon and green economic development, and in doing so have helped ensure healthy and functioning ecosystems and living environments for all people.


To provide a practical framework for integrating environmental objectives in all policies, laws, regulations, plans, strategies, programmes and projects so that they contribute to environmental protection and sustainable development across Myanmar.


To articulate national environmental policy principles andguidance on incorporating environmental considerations into all sectoral policies and planning in order to:

– protect Myanmar’s important ecosystems, natural resources, and natural and cultural heritage, and ensure healthy living environments

– promote sustainable development in Myanmar and provide a practical framework for its pursuit

– improve environmental governance in Myanmar

The Full Policy is attached here: national-environmental-policy-statement-2016_eng_nov20_final_clean_ta

%d bloggers like this: