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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.

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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)

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