Jul 8, 2015 | News
The ICJ held a successful workshop with the Office of the Attorney General (OAG) on ‘Investment Law Challenges: Defending Public Policy in Investor State Arbitration’.
The event took place in Nay Pyi Taw from 6 to 8 July 2015 and was attended by 60 participants from the OAG and other Ministries.
The workshop was designed to raise awareness about Myanmar’s human rights obligations in relation to investment and to build the OAG’s capacity to draft law that carves out regulatory space for public policy making.
The workshop also prepared the OAG for challenges to public policy through arbitration with a moot court exercise.
The topic is timely as Myanmar rushes to draft new investment law and sign Bilateral Investment Treaties that give investors standing to challenge public policy promoting and protecting human rights.
In opening the workshop, Director General U Kyaw San spoke of the rapid increase of investment in Myanmar and the corresponding changes in its regulatory system.
Dr. Na Chi Oo, a speaker for the OAG, outlined the challenges this poses to the drafting of new public policy.
Participants heard from ICJ Commissioner Prof Andrew Clapham who discussed globalization, investment arbitration and public policy.
He examined the use of human rights law in investment arbitrations.
Guest speaker Prof. Anthony Daimsis introduced bilateral investment treaties and highlighted provisions that can restrict state regulatory space.
Prof. Errol Mendes gave examples of international cases in which public policy has been challenged.
Ms. Harpreet Kaur Dhillon, from the Centre for International Law, National University of Singapore gave practical advice for drafting law that protects the regulatory role of the state.
Dr. Daniel Aguirre, ICJ Legal Adviser, added that “Myanmar needs to update its regulatory system to protect the environment and human rights. It must make sure it does not sign away its regulatory role through investment law and bilateral treaties.”
The event culminated with a moot arbitration exercise where OAG participants engaged in a mock consultation process and a simulated arbitration over a public health policy.
The ICJ was impressed by the interest and genuine commitment of the participants to promote the rule of law and public policy in Myanmar.
The ICJ staff enjoyed open and frank discussion with the Attorney General and is Director Generals on relevant legal developments and looks forward to further discourse.
The ICJ remains committed to provide support in this field in line with the promotion and protection of human rights.
Jun 9, 2015 | News
The ICJ today organized a diplomatic dialogue, in advance of the Universal Periodic Review (UPR), with ambassadors and high-level diplomatic representatives, to share the state of human rights in Myanmar.
Jun 1, 2015 | News
The ICJ conducted a two-day workshop on “Business and Human Rights” in Kyauk Phyu, Rakhine State on 30-31 May. The event was attended by 40 participants representing civil society organizations in Sittwe, Kyauk Phyu, Ann and Ponna Kyaunn.
It also included members from the township and district courts, township police force and members of parliament, focused on investment in Rakhine state in the absence of credible and transparent mechanisms to prevent human rights abuses.
The workshop occurred against the backdrop of myriad longstanding human rights issues in Rakhine State, including the humanitarian crisis confronting the state’s Rohingya population.
The State has also witnessed ongoing government repression of the State’s ethnic Rakhine population in response to demands for autonomy and their opposition to unregulated development of the State’s ample natural resources, including extensive gas deposits, at the expense of their livelihoods and rights.
The development of gas fields in the State has been fraught with human rights violations, including of forced labour and forced eviction of thousands of farmers from their lands.
As discussed during the workshop, since Myanmar’s relative opening up, the government has continued to invite and approve of foreign investors to develop resource extraction projects in Rakhine State, while locals resist the potential harmful effects of such projects on their livelihoods, properties and environment.
In 2013, hundreds of villagers protested against the adverse impacts of the Shwe gas pipeline construction – a large scale natural gas project developed by Daewoo International of South Korea in a joint venture with Myanmar Oil and Gas Enterprise.
Daewoo has once again ventured into Rakhine State, proposing a coal power plant in Kyaukphyu township, that could have adverse effects on the economic and environmental landscapes in local communities.
During ICJ’s previous trips to Sittwe and Kyaukphyu, local civil society activists had asked for information on responsible investment and national and international standards relating to displacement, land confiscations, and environmental and social impact assessments.
In the first day of the workshop, U Kyaw Min San, ICJ’S National Legal Adviser, led the discussion on fundamental citizen rights guaranteed in Myanmar legislation as well as an analysis of the land laws in Myanmar.
Daniel Aguirre, ICJ’s International Legal Adviser, gave an overview of international human rights law and the role of States and business corporations in protecting and respecting economic, social and cultural rights.
Vani Sathisan, ICJ’s International Legal Adviser, provided a legal analysis of Myanmar’s law on Special Economic Zones (SEZ), highlighting how the law fails to guarantee the protection of human rights and the environment while providing tax reliefs and exemptions, as well as land leases, to win over investors and developers.
On the second day, Daw Tin Tin Wai, Private Sector Policy Officer from Oxfam GB and a Campaign Officer from EarthRights International shared their experiences from Dawei SEZ and Thilawa SEZ, respectively.
They shared that lack of consultations with local communities and large-scale land confiscations through intimidation and threats occurring in the two SEZs reflected flaws in the government and judiciary to protect human rights and provide for access to remedy.
The workshop included a group discussion among the participants focusing on the role of local and international non-governmental organizations in Kyauk Phyu, Ponna Kyunn and Sittwe, the current situation of Kyauk Phyu SEZ and Ponna Kyunn industry zone and land issues related to such development projects.
Hayman Oo, ICJ’s Legal Researcher, facilitated the discussion, which served to highlight the specific themes around which the CSOs were organizing their advocacy and research.
At the closing dinner, U Kyaw Min San extended the ICJ’s appreciation to all the local CSOs for their participation and active engagement, and reiterated the ICJ’s support to work with community-driven organizations to work on recommendations to the government and businesses on transparency, prior consent and consultation, and compensations, and to push for a more rights-compliant approach to investments in Kyaukphyu.
May 15, 2015 | News
The ICJ today condemned the conviction of six human rights defenders after an unfair trial lasting less than five minutes. The six were charged in connection with their participation in a peaceful demonstration against the fatal shooting of a protestor in Letpadaung.
They were sentenced to four years and four months in prison with hard labour.
“Under both international and Myanmar law, a fair trial means independent judges, the need for evidence of guilt beyond a reasonable doubt, and due process. All of these requirements were ignored in the case of these accused, who must be immediately and unconditionally released,” said Sam Zarifi, the ICJ’s Regional Director for Asia and the Pacific.
“Instead of prosecuting peaceful protestors, the Myanmar government must hold those responsible for the killing in Letpadaung accountable and provide justice,” he added.
The ICJ attended today’s hearing at the Yangon Dagon Township Court of Daw Naw Ohn Hla, Daw Sein Htwe, U Nay Myo Zin, Ko Tin Htut Paing, Daw Lay Lay @ Daw San San Win and U Than Swe, who were sentenced for violating Article 18 of the Peaceful Assembly and Peaceful Procession Law, as well as a series of offences under the Penal Code.
These offences include assaulting or preventing a public servant from the discharge of his duty (Section 353); rioting (Section 147); publishing or circulating information which may cause public fear or alarm and may incite persons to commit offences “against the State or against the public tranquility” (Section 505(b)).
It is unclear whether an appeal will be filed, but the ICJ understands that the accused’s appeal in this case would be highly unlikely to succeed.
The ICJ has observed and documented the case’s pre-trial and trial phases and considers that they grossly violate international standards of fair trial.
Bail has been denied to all the accused after hearings that last less than five minutes. The accused have also complained to the ICJ about poor prison conditions, non-nutritious or edible food, dirty water and no access to radio or television.
These do not comply with international standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners.
The ICJ urges the Myanmar authorities to drop all charges against the accused and take effective measures to ensure that such violations do not reoccur in this or future cases.
The ICJ calls upon the Myanmar authorities and the judiciary to take measures, in law and practice, to ensure that the judiciary is able to decide cases independently and impartially as a separate and co-equal branch of the government.
Background:
The accused were arrested and detained on 30 December 2014 for the lawful exercise of their right to freedom of peaceful assembly.
They protested in front of the Chinese embassy in Yangon calling on the Myanmar authorities to carry out an urgent and impartial investigation into the death of Daw Khin Win.
She was shot dead on 22 December 2014 while demonstrating against illegal land confiscations and forced evictions over the Letpadaung copper mine in Monywa.
There has been so far no arrest or prosecution for the use of incendiary weapons as a crowd-control agent in Letpadaung in 2012 or for the shooting of Daw Khin Win last year.
Contact:
In Bangkok: Sam Zarifi, ICJ Regional Director, Asia-Pacific Programme, e: sam.zarifi(a)icj.org
In Myanmar: Vani Sathisan, ICJ International Legal Adviser, t: +95 9250800301 ; e: vani.sathisan(a)icj.org
May 13, 2015 | News
The ICJ today condemned the decisions of the governments of Indonesia and Malaysia to turn away and push back boats carrying hundreds of Bangladeshis and Rohingyas, including women and children, out to sea.
The ICJ emphasized that the increase in the number of Rohingya arrivals in Indonesia and Malaysia underscores the need to address the root causes that drive these people to set off on these perilous journeys, including the longstanding human rights abuses to which Rohingyas are subjected.
The decision by the two governments to return the boats to sea came after the arrival of about 2,000 people, mostly believed to be Rohingya and Bangladeshi nationals, onto the shores of Malaysia and Indonesia earlier this week.
“This should be a wake-up call to ASEAN that human rights is not an internal affair of one Member State,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“Had there been action on the part of ASEAN early on to protect the rights of Rohingyas in Myanmar, this looming humanitarian crisis would not have happened,” he added.
The large majority of Rohingyas have fled Myanmar because of the discrimination and deadly violence they face there as members of a religious minority.
Many of them had no choice but to resort to callous smugglers.
However, a recent crackdown on human trafficking in both Thailand and Malaysia has spooked smugglers who, in order to avoid arrest, have abandoned boatloads adrift at sea instead of taking them ashore.
It is reported that approximately 6000 Rohingyas and Bangladeshi are now on boats adrift in the Andaman Sea in poor and overcrowded conditions.
“The decisions of the Indonesian and Malaysian governments constitute an abject failure of their duty to increase search-and-rescue efforts at sea and to provide humanitarian relief to those in need. Moreover, pushing these people back out to sea is a life-endangering practice and in no way does it provide a safe and effective solution,” said Zarifi.
Under international law, the act of pushing those boats back to the high seas constitutes a collective expulsion and may constitute a violation of the principle of non-refoulement.
Such a practice is also likely to lead to violations of the right to seek and enjoy asylum from persecution, of the right not be subjected to torture and other ill-treatment, and of the right to life.
On 29 May 2015, senior officials and representatives from at least 6 ASEAN member states will be in Thailand to have a “Special Meeting on Irregular Migration in the Indian Ocean”.
“ASEAN member states must ensure that any regional decision taken on this issue will be one that adequately and meaningfully protects the lives of people who embark on those desperate journeys across the Indian Ocean,” added Zarifi.
The ICJ urges ASEAN member states to stop the practice of returning boatloads of asylum-seekers and migrants to the sea and to immediately adopt effective regional measures in line with international human rights standards.
The ICJ also urges ASEAN to strengthen its regional human rights mechanism so that it would be able to effectively address violations of human rights in the region.
Contact:
Emerlynne Gil, ICJ Senior International Legal Adviser, in Bangkok, email: emerlynne.gil(a)icj.org or mobile: +66 84 092 3575
Picture: EPA/Zikri Maulana
