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:

Vision 

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.

Mission 

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.

Objectives 

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

This article appeared on the Business and Human Rights Resource Centre’s Blog on a Binding Treaty for Business and Human Rights at: https://business-humanrights.org/en/regulating-investor-responsibility-not-just-investor’s-‘rights’

By Ludovic Courtès [CC BY-SA 3.0], via Wikimedia Commons

Recent political events like ‘Brexit’ and Donald Trump’s election have been in part fuelled by a backlash against a system of neoliberal international trade and investment. Its inherent inequality, injustice and environmental degradation have become clear. The status quo leaves too many behind to be sustainable.

It is clear that the international community’s priority is on promoting investment rather than regulating it.

Governments must confront the dominance of corporate interests over human rights and the environment. One way to address it is to ensure that international business – so well protected through investment and trade agreements and offshore tax havens – will also be regulated to protect and promote human rights.

THE REGULATORY GAP 

It is clear that the international community’s priority is on promoting investment rather than regulating it. Investment laws do not mention human rights. They require investors to follow national law. The problem is that many states do not have adequate human rights and environmental protections in place. In other cases, states are unwilling or unable to enforce existing laws. Transnational businesses are able to select a venue that makes its operations cheaper even if it undermines human rights or harms the environment.

A BINDING TREATY’S CONTENTS

A binding treaty must address this regulatory shortfall. Like the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC) or the Migrant Workers Convention, which elaborate on existing standards to address a particular need identified by the international community, a binding treaty on business and human rights should codify and develop the responsibility of states to protect human rights.

A business and human rights treaty needs to develop standards for preventative measures and build national capacity. States must be bound to adopt regulations and enforcement measures to ensure business enterprises fulfill their responsibilities, including adopting an approved policy or code of conduct and human rights due diligence processes. Many states are developing these policies in absence of an international framework. Civil society is calling out for binding standards by which to measure new laws.

The treaty should help states adopt effective legislative and administrative measures for criminal and civil liability of corporations for human rights abuses. Crimes for which international law requires the imposition of criminal sanctions should be incorporated into national corporate criminal law, expanding the jurisdiction of national tribunals and law enforcement bodies to deal with transnational corporate crime.

The regulatory process for approval of licenses and permits for some investments should include an obligation to obtain social license through fully informed community consent. It should also provide standards of public policy protection to be included in investment protection agreements.

The possibility for victims to initiate judicial complaints against companies directly in their domicile (whether it is in a host State or the home State) will further help to redress the inequality in rights and obligations that exist between companies on one side, and people on the other.

Access to justice, including the right to an effective remedy, is essential for business accountability for human rights abuses. The treaty should codify and develop provisions for access to an effective remedy for wrongful conduct against both states and business enterprises. For states, the remedy would be in relation to situations of complicity or participation in business abuses or for failing to discharge their duty to protect against the wrongful conduct of business enterprises.

The possibility for victims to initiate judicial complaints against companies directly in their domicile (whether it is in a host State or the home State) will further help to redress the inequality in rights and obligations that exist between companies on one side, and people on the other. It is clear that the international community’s priority is on promoting investment rather than regulating it.It is clear that the international community’s priority is on promoting investment rather than regulating it. The doctrine of forum non conveniens rings hollow as companies argue for human rights cases to be heard in host jurisdictions while their interests must be upheld in international arbitration.

REGULATION AND SOVEREIGNTY 

Some states claim that a binding treaty on business and human rights would interfere with domestic sovereignty, either through extraterritorial application of law, or by forcing developing states to adopt high standards that they cannot afford. Yet these same states are willing to sign binding investment treaties that apply international standards, sometimes overruling domestic regulatory sovereignty. This hypocritical stance helps fuel protest and opposition to economic globalisation.

International investment law faces little opposition from states and is promoted as encouraging legal certainty. But locking in bad law or discouraging new standards by allowing foreign investors to challenge changes is extremely unpopular. While states are reluctant to regulate their companies extraterritorially, they are happy to negotiate protections for them, even at the expense of human rights.

An international treaty that guarantees an enhanced remedy system for harm caused by companies including extraterritorially would serve as a corrective instrument in this respect.

The EU, the United States and the United Kingdom should support a binding business and human rights treaty to go along with their global investment agenda. It is advantageous for them to support the highest standards possible. Companies from Western states are increasingly held responsible by active civil societies and cannot compete in places where the rule of law does not exist. Other countries do not face such restrictions and their companies do not have the discerning glare of civil society back home upon them. It is in the developed home state’s interest to level the playing field. Ideological opposition to the regulation of markets no longer makes sense.

Try telling a local farmer or a worker that a foreign business enterprise will have access to justice and its interests protected by treaty while they will not. An international treaty that guarantees an enhanced remedy system for harm caused by companies including extraterritorially would serve as a corrective instrument in this respect. It might also convince people that globalisation is more than investment and includes the protection of human rights and the environment.

For more information see the ICJ’s Proposals for Elements of a Legally Binding Instrument on Transnational Corporations and Other Business Enterprises at: http://www.icj.org/wp-content/uploads/2016/10/Universal-OEWG-session-2-ICJ-submission-Advocacy-Analysis-brief-2016-ENG.pdf

This article was published in the Myanmar Times on 30 August 2013 at: http://www.mmtimes.com/index.php/opinion/22221-reconciling-investment-protection-and-human-rights.html 

This month the newly elected Myanmar government released its economic policy and announced that it will seek to attract even more foreign investment than under previous administrations. But the new policy did not outline how it will ensure that foreign investment will contribute to the protection of human rights and sustainable development.

Myanmar’s previous military government was committed to investment protection treaties. Will the new government follow suit? These treaties between states enable foreign investors to challenge new laws and policies by the host government – potentially including those protecting human rights and the environment – through international arbitration if they believe these may adversely affect their profits.

Foreign governments want their investors to benefit from the opening up of Myanmar’s economy. Myanmar has already entered into investment protection treaties with Japan, South Korea, the Philippines, China, Laos, Vietnam, Thailand, Israel and India and is party to the ASEAN Comprehensive Investment Agreement. Myanmar is negotiating a new treaty with the European Union and exploring options with Singapore, among others.

These investment treaties grant investors equal standing with Myanmar’s government in disputes over national laws and policy in international arbitration. Their broad provisions fail to reconcile investment protection with the host state’s right and duty to regulate for the benefit of human rights and sustainable development. Myanmar must ensure that provisions on the treatment of foreign investors limit their rights to challenge legitimate, non-discriminatory, public purpose legislation.

Seeking to attract investment by giving foreign businesses more economic security should not compromise government’s ability to regulate in favour of the rights of its people. Protection of investments must not be given priority over protection of human rights and the environment. The UN Guiding Principles on Business and Human Rights urge governments to maintain adequate domestic policy space to meet their human rights obligations when pursuing investment treaties.

Before agreeing to further investment treaties, Myanmar should commit to adopting and enforcing new laws in line with international human rights and environmental standards. It should evaluate whether these investment treaties are necessary to attract foreign investment to Myanmar. It should follow the regional trend and revisit old treaties that empower foreign investors at the expense of local rights holders.

The National League for Democracy-led government came to power promising change, to establish the rule of law and to protect human rights. In order to do so, the government will need to create new laws and policies in line with international laws and standards in the public’s interest. For example, Myanmar has recently signed the International Covenant on Economic Social and Cultural Rights, signalling its willingness to put in place policies to progressively achieve universal healthcare, education and social security. These rights are also protected in Myanmar’s constitution.

But new policies designed to fulfil these rights may give rise to disputes under investment treaties. For instance, it is possible that foreign investors will claim that a new policy on public health (for instance by requiring plain packaging for cigarettes) or minority rights (calling for affirmative action for minorities) or strict environmental protection standards (improved environmental impact assessment regulations) would harm their expected profits or other rights that are broadly defined in the investment protection agreement.

These are not outlandish examples. There are a number of cases where new laws and regulations passed by democratically elected governments have been challenged by foreign investors before arbitral tribunals. In Canada, a foreign investor successfully challenged an environmental impact assessment board’s decision to deny it a permit and asked for more than US$100 million in damages. Affirmative action policies in South Africa and environmental protection standards in Germany have been challenged. Just the threat of arbitration can lead to a “regulatory chill”, forcing back public interest legislation and preventing environmental protection measures.

These are costly disputes – some arbitral awards run into the billions of dollars against host governments. Recent challenges by tobacco giant Phillip Morris against Australian and Uruguay plain packaging cigarette laws, designed to protect public health, were unsuccessful but cost millions in lawyer’s fees. Australia reportedly paid $50 million to defend its law. Myanmar cannot defend repeated challenges by deep-pocketed investors. In Myanmar, this money could be better spent improving the dire state of health and education.

Around the world, people are demanding that negotiation and adoption of investment treaties be transparent; increasingly, people are opposing treaties that grossly favour the interests of investors over the interests of the public. Investment treaties are often negotiated behind closed doors with little public or parliamentary oversight. These are important decisions that impact on the rights of people in Myanmar. Myanmar’s civil society has not yet had the opportunity to participate in genuine and informed consultation.

Many states have turned against international dispute resolution in investment treaties. South Africa, Bolivia, Ecuador, Venezuela and Indonesia have started to cancel or phase out existing treaties. Others, including India, are reviewing current treaties and rethinking future negotiations. Brazil, Russia, India and China are considering an alternative system that considers issues relevant to emerging economies.

The Indian government intends to replace existing investment treaties with new ones designed to balance investor’s interests, regulatory space and investor responsibilities. It seeks to limit protections for foreign investors, drop controversial aspects of treaties and narrow the scope of others to reduce disputes. While it allows access to international dispute settlement, foreign investors will have to pass through the domestic courts first. The new investment treaties will also include an exhaustive list of economic, environmental and social measures to be exempt from challenge by foreign investors.

Myanmar would do well to follow this approach. Improving its human rights situation and maintaining sustainable development require sweeping legal reform. The threat of costly legal challenges by foreign investors could dissuade policy makers from making necessary changes, discouraging them from fulfilling human rights and environmental obligations in order to promote investment.

Dr. Daniel Aguirre, Panel VI: Lessons learned and challenges to access to remedy (selected cases from different sectors and regions).

Prosecuting Companies in Myanmar: Challenges and Opportunities

Thank you again, Madam Chair, Ecuador and the OHCHR for supporting this important week of fruitful discussion. I will begin where I left off on Tuesday, discussing some of the practical challenges and opportunities that a binding treaty on business and human rights could possibly address.

Let me state that I am not here to pick on Myanmar. Myanmar is undergoing tremendous political, economic and social change. The situation in Myanmar is much better than it was 5 years ago and almost unrecognisable from the darkest days of the military regime. The Economy has changed rapidly and politics progressively; yet reform of the legal system and the judiciary lag far behind and will likely not be resolved in a generation. Yet into this accountability void billions of dollars of new investment flows.

Failure to provide for effective remedies and redress, even where provided for in domestic law, has a range of causes, legal and political. Among the most common are: weakness in the rule of law (including the independence of the judiciary and the legal profession); inability or unwillingness of officials to counter resistance by powerful corporate interests against regulation; public officials who lack knowledge or capacity; corruption; limited resources; and other procedural hurdles that create a system of disincentives to litigation against companies.

So Myanmar is not alone in this regard. I present it as a case study because a Binding Treaty on BHR must address investment in weak governance zones and transitional countries emerging from dictatorship or conflict where the rule of law is weak. The situation in Myanmar provides useful examples to keep in mind during the process of developing this important treaty.

Prosecuting corporations in Myanmar is difficult as the very notion of legal accountability is in its nascent stages. The judicial system was undermined by the military regime over 50 years, destroying a system once regarded as among the finest in the region. While inherited colonial law recognises both criminal and civil liability for corporations as well as the possibility of class action suits, these provisions are not yet used to ensure corporate accountability.

The public does not trust the judiciary, which is under resourced, lacking in capacity and assumed to be corrupt. The only time a person goes to court in Myanmar is as a defendant. Disputes are resolved in any other means possible, with the courts avoided at all costs. This lack of the rule of law undermines the State duty to protect and provide remedy in the context of business and human rights.

 Access to Remedy

On Tuesday, in Panel 2, I outlined the challenges Myanmar faces in adopting regulation to protect human rights, in the context of business activity. Indeed, the international community overwhelmingly supports deregulation, which is reflected in Myanmar’s’ national investment law and investment treaties.

Myanmar, like other transitional states, does not provide adequate access to remedy for victims of business related human rights abuses. Myanmar is unable to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory those affected have access to effective remedy. The judiciary is not yet independent from the undue influence of other branches of government and the military, who themselves are connected to crony businessmen. This creates a public perception of injustice and undermines the rule of law.

Judges lack resources and capacity and are subject to pressure from the executive through the Attorney General’s Office and by direct intervention for the military in sensitive cases (ie Human Rights). Many Judges, including 4 of the 7 members of the Supreme Court, are military appointed officers. The courts are under resourced and require further support from the international community.

Lawyers do not have an independent bar association. The current legal body is headed by the Attorney General and has punished its members for taking on contentious cases.

Current land law creates administrative bodies to handle land disputes. These committees make vital decisions affecting human rights at the local level. Their decisions are perceived as final and have had not been subject to adequate judicial oversight despite the availability of constitutional writs as rights of citizens.

Yet there are positive signs. As you all know, there is a new government in Myanmar. There is an unprecedented opportunity to engage and cooperate. The Attorney General’s Office, the Supreme Court and the new government have all signaled their commitment to reform in line with the rule of law and human rights. There is a new Attorney General, appointed by the new government, who can take the lead on judicial reform. Lawyers are emboldened and increasingly willing to take on tough cases with less fear for their careers. The ICJ builds the capacity of and supports all of the above in the protection of human rights.

Under the current regulatory regime, it is unlikely criminal or civil litigation will hold powerful economic actors like corporations accountable. This is a generational change that will require reform of legal education, increased capacity building and support from the international community.

In the meantime, the state duty to protect and provide access to remedy cannot be fulfilled, bringing into question the utility of the corporate responsibility to respect human rights put forward by the UN Guidelines. Let’s face it, it is easy to respect rules and regulations that do not exist or are not enforced.

Access to justice, including the right to an effective remedy, is essential for business accountability for human rights abuses. The prospective treaty must require measures to ensure access to effective remedies and redress for persons and groups of persons that suffer abuse arising from the conduct of business enterprises.

The treaty should codify and develop provisions for access to an effective remedy for wrongful conduct against both States and business enterprises. For States, the remedy would be in respect of situations of complicity or participation in business activity or for failing to discharge their duty to protect against the conduct of business enterprises.

The possibility for victims to initiate judicial complaints against companies directly in their domicile (whether it is in a host State or the home State) will further help to redress the inequality in rights and obligations that exist as between companies on one side and people on the other side.

The growing web of bilateral or multilateral agreements on investments and free trade often grant business enterprises and investors in general the right to a very extensive set of protections including the right to sue governments before international arbitral tribunals, a right that individuals and communities do not have in relation to companies that abuse their human rights.

Try telling a farmer that a foreign company will have access to justice to protect its land while they have none. An international treaty that guarantees an enhanced remedy system for harm caused by companies including extraterritorially would serve as a corrective instrument in this respect.

Panel II: Primary obligations of States, including extraterritorial obligations related to TNCs and other business enterprises with respect to protecting human rights

screenshot-2016-10-25-17-32-07

Dr Daniel Aguirre, International Commission of Jurists

Thank you Madam Chairperson, Ecuador, South Africa and the OHCHR for organising and supporting this important initiative. Ladies and Gentlemen, it is an honour and privilege to be given the opportunity to contribute to this process and to address an audience of concerned states and NGOs. I congratulate the latter for braving the heavy rain in their protests this morning.

I encourage everyone to read the ICJ’s recently published proposals for Elements of a Legally Binding Instrument on Transnational Corporations and Other Business Enterprises.

Having researched the connection between international investment law and human rights for 15 years, I am delighted that BITs and ISDS have been mentioned repeatedly as the source of a power imbalance in the international community. It always amazes me that the same states that claim human rights interfere with their sovereignty are more than willing to sign a binding treaty – with international arbitration – on corporate ‘rights’ that directly interferes with their domestic regulatory sovereignty.

Today I have been asked to provide examples of national legislation and international instruments applicable to TNCs and other business enterprises with respect to human rights. Unfortunately, Myanmar, where I have worked for the ICJ for the last 3 years, provides more examples of problematic business and human rights regulation that indicate a need for a binding treaty.

Myanmar is an important example. It is basically the Petri dish of Business and Human Rights. How investment affects human rights and the environment in Myanmar – which is late comer to the global economy – will demonstrate if globalization can be tamed to support sustainable development or not.

In Myanmar the drafting of new law is accompanied by support from a variety of international organisations, especially the IFC, and with the encouragement of investors and their home states. The IFC provides a draft with full protection of rights and sponsored consultation with affected parties whose interests would be protected. The process takes into account International Treaties and customary international law to ensure the highest standards are reflected in a new national law.

I would be delighted to tell you that this was the normal legal drafting process and that it applied to environmental protection or human rights law. In fact, this process was for the adoption of a new investment law, which was the priority of the previous military government and also Aung San Su Kyi’s NLD. Other laws do not enjoy such support.

The new investment law was passed last week, to the delight of investors, reflecting Myanmar’s BIT standards. Thankfully, civil society – with the assistance of the ICJ – was able to convince the government to remove automatic access to ISDS for both domestic and international investors, which had been helpfully included by the IFC and would have been unprecedented in a national law.

Meanwhile, the drafting of human rights laws has been compromised by political considerations – there is a real fear about provoking the military and ending the democratic experiment. Rushed drafts have been quickly passed through parliament with little or no public consultation or international support. Many do not even reflect the principle of legality. Often they are construed to protect the majority from the minority.

It is clear that the priority is on promoting investment rather than regulating it. The new investment law does not mention human rights. It requires investors to follow national law. The problem is that Myanmar, like many other States, does not have adequate human rights protection – currently more than 50% of the population lacks legal tenure to the land they live on, for example. In other cases it is unwilling or unable to enforce laws. Myanmar has not ratified key human rights conventions such as the ICCPR or ICESCR, although it has recently signed the latter.

A Binding treaty must address this regulatory shortfall. Like CEDAW, the CRC or the Migrant Rights Treaty, which elaborate on existing standards to address a particular need identified by the international community, a Binding Treaty on Business and Human Rights should codify and develop the responsibility of States to protect human rights.

The binding treaty must build capacity; it should help states adopt effective legislative and administrative measures for the criminal and civil liability of corporations for human rights abuses. Certainly, crimes for which international law require the imposition of criminal sanctions should be incorporated in national corporate criminal law.

Myanmar has adopted an EIA procedure that includes social impact assessment. In the absence of human rights law, CSOs have begun attempting to find ways of addressing human rights through this mechanism. But there are no binding international standards on what constitutes appropriate regulation of corporate due diligence, public consultation, and accountability mechanisms for CSOs to measure their government’s regulation by, let alone implementation. CSOs find themselves quoting World Bank Guidelines!

A treaty needs to develop standards for national regulation of these preventative measures. States must be bound to adopt regulations and enforcement measures to ensure business enterprises fulfil their responsibilities, including adopting an approved policy or code of conduct and human rights due diligence processes. This could also be regulated extraterritorially. The regulatory process for approval of licenses and permits for some investments should include an obligation to obtain social license through fully informed community consent. It should also provide standards of public policy protection to be included in investment protection agreements.

Investment protection, by contrast, has plenty of applicable standards. Myanmar is a party to a number of bilateral and regional investment treaties. It is currently negotiating an investment protection agreement with the EU. The EU IPA has been promoted as encouraging legal certainty. But Locking in bad law or non-existent standards by allowing foreign investors to potentially challenge new laws that threaten their property or profits is extremely unpopular in a country where human rights are not afforded that kind of protection. The international community demonstrates that while it is reluctant to regulate its companies extraterritorially, it is happy to negotiate protections for them, even at the expense of human rights.

The EU would do well to support a binding Business and human rights treaty to go along with their IPA. It makes sense for North American and European states to support this treaty with the highest standards possible. Let’s face it, companies from these states are held to the highest standards by active civil society and cannot compete in places where the rule of law does not exist. Myanmar’s neighbouring countries do not face such restrictions and do not have the discerning glare of civil society back home upon them. It is in developed home state’s interest to level the playing field. Ideological opposition to the regulation of markets no longer makes sense.

Aside from many states’ unwillingness or inability to regulate for the protection of the environment and human rights, a binding treaty must address access to remedy. In, Myanmar, The Judiciary, despite having inherited British colonial law that recognises corporate liabilities, lacks capacity to deal with complex cases concerning business and human rights. I will speak more about access to remedy on Friday in Panel VI, so this discussion is to be continued.

I look forward to your comments and questions.

Thank you.

This month the National League for Democracy released its new economic policy, and stated it seeks to attract more foreign investment. Given that the NLD has inherited inadequate land regulation and an ineffective judiciary, it is unclear how increased investment would be reconciled with NLD policy to address the land rights of people in Myanmar.

Foreign governments want their investors to cash in on the investment boom but have no confidence in Myanmar’s regulatory framework and its judiciary. Many, such as the European Union (EU), are busily negotiating Bilateral Investment Treaties (BITs).

These treaties guarantee investor’s interests as ‘rights’ and give their investors access to Investor-State Dispute Settlement (ISDS) mechanisms outside of Myanmar. ISDS enables foreign companies to challenge new laws and policies that they view adversely affect their profits, including future land reforms.

Myanmar has entered into BITs with Japan, South Korea, the Philippines, China, Laos, Vietnam, Thailand, Israel and India and is party the ASEAN Comprehensive Investment Agreement, all of which include ISDS provisions that undermine the sovereign “right to regulate”.

Myanmar has a land regulation problem requiring legal reform. For decades the government expropriated land with impunity. Doling out land to crony businessmen and unscrupulous foreign investors became the norm. An influx of recent investment has increased demand for land, raised prices and further enriched those with connections. Poor land regulation means that some investors continue to be granted land obtained illegally or under dubious circumstances.

Under the current land laws more than half of Myanmar’s land users do not have legal tenure leaving them vulnerable to land grabs and forced eviction. The current land laws were designed to encourage large-scale land use and promote economic growth. The procedures for land acquisition under antiquated laws in Myanmar are rarely followed in practice. People have little or no access to justice, as the courts have proven reluctant to address sensitive cases. Instead, many communities find themselves charged with trespassing on land on which they have lived for generations.

The NLD government was swept into power promising to reform the land law and deal with widespread land grabbing. In order to protect land rights, the new government will need to create new law and policy restricting such practice and holding those who benefitted accountable.

But new law and policy on land redistribution and the recognition of communal land rights may conflict with the interests of foreign investors and give rise to costly disputes under BITs. In relation to ‘land grabbing’, ISDS could protect one-sided land deals that complied with bad national law and resulted in forced evictions. Investors could obtain market value compensation even if they acquired the land at less than market price.  Just the threat of litigation may be enough to dissuade needed land reform.

There are a number of international examples where new laws and regulations passed by democratically elected governments have been challenged by foreign investors through ISDS. These are costly disputes – some arbitral awards run into the billions of dollars. Recent challenges by tobacco giant Phillip Morris against Australian and Uruguay plain packaging cigarette laws were unsuccessful but cost millions in Lawyer’s fees. Australia reportedly paid 50 million USD to defend its law.

Myanmar lacks the legal and financial capacity to defend repeated challenges by deep-pocketed investors. In Myanmar, this money could be better spent improving the dire state of health and education.

Many states have turned against the inclusion of ISDS in BITs. South Africa, Bolivia, Ecuador, Venezuela, and Indonesia have started to cancel or phase out existing BITs. Others, including India, are reviewing current BITs and rethinking future negotiations. From Australia to Europe and North America, BITS are now part of public debate. Civil society is voicing its concerns with the ISDS system, questioning the rationale of the global investment protection system itself. Besides, there is not even clear evidence that ISDS and BITs actually increase foreign investment.

Economic investment should contribute to the rule of law and human rights. In order for this to happen, Myanmar must align policies with a vision of development based on local and national aspirations, placing people, and their rights, at the centre of the process. BITs are often negotiated behind closed doors with little public or parliamentary oversight. These are important decisions that impact on the rights of people in Myanmar.

Public participation is essential to the law reform process. Try telling farmers that investors should have access to special courts to protect their interests while their land can be taken without adequate compensation and without due process. Civil society has not yet had the opportunity to participate in genuine and informed consultation on Myanmar’s BITs. Relying on EU consultation procedures, for example, is not good enough.

BITs should refer to the various legal regimes, including international human rights law, to which Myanmar has legal obligations. This will help ensure that ISDS cannot be used to override Myanmar’s other legal commitments. Myanmar has recently signed the International Covenant on Economic Social and Cultural Rights, signalling its willingness to put in place policies to progressively achieve healthcare, education and social security. These rights are also protected in Myanmar’s constitution. ISDS threatens the ability of government to fulfil these rights.

Before agreeing to further BITs, Myanmar must adopt and enforce a new land law in line with international standards recognising the tenure of land users. In future BITs, Myanmar must prevent ISDS being used to challenge legitimate public purpose legislation. It should revisit old BITs that already allow investors to do so.

Ensuring legal certainty for foreign investors does not require empowering companies to challenge public-interest policies. Attracting foreign investment should not compromise government ability to regulate in favour of the rights of its people.

Promoting the use of habeas corpus should be vigorously pursued in Myanmar as a remedy for arbitrary arrest and detention, argues the International Commission of Jurists.

This article was published in Frontier Magazine on June 30th. http://frontiermyanmar.net/en/habeas-corpus-plea-action 

By DANIEL AGUIRRE | FRONTIER

“I’ve been in jail for almost a year and I don’t know what I am charged with,” a detainee in Yangon told the International Commission of Jurists earlier this month.

Another complained that when he was arrested, “the police had no warrant and did not inform me about my crime”. Neither detainee had enjoyed the human right to challenge the lawfulness of their detention.

Such complaints are common, as the ICJ has said in its new Handbook on Habeas Corpus in Myanmar. The ICJ’s analysis shows that, notwithstanding some reform, security forces often arrest and detain people without following proper procedures, in violation of Myanmar’s national laws and international human rights obligations. There continue to be multiple cases of arbitrary or unlawful arrest and detention in the country, sometimes used to suppress political dissent.

Reintroduced in Myanmar under the 2008 Constitution, habeas corpus has been described as “the great writ of liberty”. It affords anyone detained, or their representative, the right to challenge the legality of arrest and detention before a court. It is a key legal device to prevent unlawful detention, torture or enforced disappearance.

Habeas corpus puts a duty on the courts to review the lawfulness of detention and on the security forces to prove they acted within the law. If detention is unlawful, the court must free the detainee immediately. Under international law, it is applicable at all times to anyone (not just citizens) under any form of detention, including during a state of emergency, even in countries, such as Myanmar, that are not yet state parties to relevant international treaties.

It is crucial that this writ be used to ensure that nobody is detained without due process or solely for lawful political dissent, as is the case for many political prisoners.

Although articles 296(a) and 378(a) of the 2008 Constitution guarantee the right to habeas corpus, the ICJ could not find a single case in which the writ had been used to overrule an unlawful arrest or detention.

Another tool for protecting detainees’ rights is Section 491 of the Criminal Procedure Code. It allows High Courts to summon and release wrongfully detained prisoners. However, Myanmar judges and lawyers said it has not been used in decades.

When Myanmar’s military rulers began cracking down on political dissent and imposed authoritarian rule, they naturally got rid of habeas corpus. Despite its reinstatement, habeas corpus remains politically sensitive, as it requires the judiciary to review and rule upon the actions of the security forces.

The ICJ has observed and documented several cases where the failure to comply with due process rights could have been challenged through habeas corpus proceedings. For example, the detainees who spoke with us this month have never been properly charged and their alibis never properly examined in court. Others are arrested solely for exercising their right to freedom of expression. We have monitored a number of manifestly unfair trials.

However, Myanmar lawyers remain reluctant to petition for the writ of habeas corpus to challenge the actions of government agencies. Their hesitation is partly the result of the systematic dismantling of Myanmar’s legal system, which has rendered judges, lawyers and government officials unfamiliar with international standards. Few have ever seen the writ of habeas corpus used properly. In addition, the Myanmar judiciary remains drastically under-resourced and requires capacity building.

Another practical obstacle is that only the country’s Supreme Court can hear habeas corpus petitions and it is based in Nay Pyi Taw, a situation that discourages many lawyers from incurring the costs and logistical difficulties involved. Contrary to international standards, the constitution suspends the writ during declared emergencies, which means that it cannot be used in the places that need it the most. Moreover, lawyers claim that the petition process can take months, when international standards call for it to be simple, expeditious and free.

In addition, many lawyers say that habeas corpus is not useful to protect their clients because Myanmar’s judiciary is not yet independent. Indeed, the ICJ’s research shows the courts are often unwilling or unable to challenge the government and the military. Until the courts are able to enforce judicial procedures such as habeas corpus, the rule of law and human rights will remain elusive.

Lawyers must bring habeas petitions on behalf of their clients. Not only does this create a record documenting purported human rights abuses, but it will also increase pressure on judges to rule on petitions. The courts must fulfil their role as guarantors of the constitution and human rights.

The new government and the judiciary have committed to the rule of law and human rights. Promoting the use of habeas corpus will help protect the rights of people in Myanmar and strengthen the independence of the judiciary, as well as the rule of law in the country. It is already on the books and it should be vigorously pursued as a remedy for arbitrary arrest and detention.

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