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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. 

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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: https://www.irrawaddy.com/opinion/editorial/use-law-protect-human-rights-environment-irresponsible-investment.html

By DANIEL AGUIRRE 25 May 2017

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.

Contact

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

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:

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.

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