May 30, 2017 | News
Representatives of large European business enterprises met today with State delegates and representatives of FIDH and the ICJ in Geneva to discuss their views on a prospective international treaty on business and human rights.
The meeting was organized by the FIDH and ICJ and took place under Chatham House rules.
The United Nations Human Rights Council started in 2014 an intergovernmental process towards an international treaty concerning business and the protection human rights.
The first draft elements of that treaty should be discussed in October 2017, after two years of preparatory consultations among the concerned stakeholders.
The meeting in Geneva took place in the context of growing involvement by key business leaders in international discussions, in dialogue with civil society and governments, around global human rights standards.
Business representatives present in the meeting expressed their views regarding the content of a future international treaty founded on their need to have level playing field regarding human rights responsibilities to operate in global markets.
They pointed out that the new treaty should apply to all businesses, go beyond the existing frameworks and create a framework for a fair human rights based competition among businesses towards higher standards.
State delegates and NGOs representatives also shared their perspectives noting that the current circumstances call for bolder collective action as a matter of urgency.
Most participants underlined the key role that State agencies should play in enforcing the rules at the local level and in protecting their people.
Finally, a call was made for businesses, civil society and governments to take their responsibility to promote global human rights binding rules for business operations, including in the global marketplace.
May 30, 2017 | News, Op-eds
An opinion piece by Sean Bain, ICJ legal consultant in Myanmar, and Vicky Bowman, Director of the Myanmar Centre for Responsible Business.
A strategic environmental assessment is needed to enable sustainable development and the fulfilment of human rights for the people of Kyaukphyu, the site of a planned SEZ and deep-sea port.
In its interim report released in March, the Advisory Commission on Rakhine State chaired by former United Nations secretary-general Kofi Annan, called for a comprehensive assessment of the special economic zone in Kyaukphyu Township.
The aim would be to “explore how the SEZ may affect local communities and map how other economic sectors in the state may benefit (or possibly suffer) from the SEZ”.
The State Counsellor’s Office endorsed the commission’s interim recommendations, including for this assessment.
The call for a comprehensive assessment in Kyaukphyu echoes a proposal from our organisations, the Myanmar Centre for Responsible Business and the International Commission of Jurists, for the government to undertake a strategic environmental assessment.
Its purpose would be to address concerns about human rights and to consider the cumulative environmental and social impacts of planned developments. Oxfam has put forward a similar recommendation to the government.
Our recommendation comes as media reports this month suggest that the government is giving renewed attention to the future of the SEZ and related projects in Kyaukphyu.
The SEZ, which has been planned to include industrial parks along with deep-sea ports and transport links to China, would transform the demographic and economic character of Rakhine State’s central coast and hinterlands.
It would have significant impacts for local communities and the state economy, both during and beyond the envisaged 20-year construction period.
Kyaukphyu – already the starting point for oil and gas pipelines to China – would host the largest development project ever undertaken in Rakhine State.
Financed mostly by Chinese investors, with shipping facilities linking Myanmar to international routes through the Bay of Bengal, the project also has national and regional economic significance.
However, to date there has been insufficient consideration of the impacts, either positive or negative, on the livelihoods and human rights of residents and the economy of Rakhine State.
Plans for the SEZ are ambitious yet detailed information is scarce and so far there has been no genuine public participation in planning processes.
While contracts and payments regarding investments are decided in Myanmar’s economic and political capitals, it is at the local level that negative impacts can be felt the most.
It is also at the local level where economic benefits may be enhanced.
To address negative impacts and enable benefits, a joined-up approach that brings together national and local government and local and foreign companies with the people of the area is needed.
At present, a lack of coordination across ministries, and between national and regional governments is limiting the scope to harness opportunities and manage impacts of investments.
Despite their significance, neither the SEZ and deep-sea ports nor the offshore gas projects serviced from Kyaukphyu are included in Rakhine State’s socioeconomic development plan.
We believe a strategic environmental assessment is needed to enable sustainable development and the fulfilment of human rights in the Kyaukphyu area.
Strategic environmental assessments, which are part of Myanmar law, are defined in the 2015 Environmental Impact Procedure as “a range of analytical and participatory approaches that aim to integrate environment into policies, plans and programs and evaluate the inter-linkages with economic and social considerations.
The principle is to integrate environment, alongside economic and social concerns, into a holistic sustainability assessment.”
Unlike an environmental impact assessment, which is a permitting requirement for individual projects, a strategic environmental assessment takes a holistic approach by integrating environmental and social concerns and human rights protection, to produce a big picture view of the impacts of interrelated projects.
At Kyaukphyu, the national and state governments – drawing on financial and technical assistance from development and human rights partners – could commission expert independent consultants to undertake the necessary studies and analysis to produce such an assessment.
The assessment would consider the cumulative human rights and environmental impacts of the SEZ, seaports, pipelines, offshore gas developments and transport and energy infrastructure, including impacts on traditional fishing and farming livelihoods in Kyaukphyu.
It could address how best to avoid or minimise the physical and economic displacement of residents, and how to reduce the potential for local tensions and conflict associated with expected socioeconomic transformations.
A legal framework – based on international law and standards – for protecting human rights during economic displacement and resettlement needs to be put in place. That’s not just for the SEZs, but for all projects.
While insufficient to address the lack of legal accountability in the SEZ Law and the limited access to justice in Myanmar, a strategic environmental assessment could improve transparency and give voice to the views of local communities, businesses, civil society organisations and other stakeholders.
This would help fill major gaps in planning and decision-making processes thus far.
Consultation is critical to the value and legitimacy of any assessment but too often it is tokenistic or minimised to cut costs and time.
Development partners should ensure that they are funding genuine and extensive public participation.
A lesson from Myanmar’s only other assessment of this kind, currently underway with support from the International Finance Corporation focused on the hydropower sector, has been the need to communicate and engage constantly about the purpose and process of the assessment.
Many civil society groups chose not to participate in consultations for the IFC-backed assessment due to scepticism and lack of confidence in the process.
To learn from this experience, international and local NGOs in Kyaukphyu could share information and support communities to make informed decisions about their engagement with a strategic environmental assessment.
Until there is a concrete and transparent plan to manage impacts from development projects in Kyaukphyu, particularly those with negative impacts on human rights, current preparations for the SEZ should be put on hold.
This includes land acquisition that is underway and risks violating the rights of local residents.
The government should also delay entering into investment agreements with the winning consortium of developers, which is led by China’s CITIC Group, until there has been broader multi-stakeholder debate about the SEZ, and how it may develop and interact with other investments in the area.
A strategic environmental assessment in Kyaukphyu could contribute towards correcting a development process that has so far not contributed meaningfully to the realisation of human rights or addressed the economic needs of the population in Kyaukphyu or Rakhine State.
We hope that the Myanmar government at national and state level as well as development partners will take this forward, building on the advisory commission’s recommendation and its endorsement by the state counsellor.
May 27, 2017 | News
On 24 May 2017, States at the UN reached an agreement to prepare an “international regulatory framework” to protect human rights and ensure accountability for violations and abuses relating to the activities of private military and private security companies (PMSCs).
The agreement, reached at Working Group level, has still to be ratified by the full UN Human Rights Council.
It would be the first universal international instrument on human rights and private security companies negotiated and adopted at the UN.
This could pave the way to further developments towards increased monitoring and accountability of the private security industry.
The agreement constitutes a landmark achievement. The intergovernmental Working Group over the past six years have been mired in circular debates as to whether or not it is desirable to develop a legally binding instrument on PMSCs.
Last’s week agreement leaves aside for the moment the decision about the nature of the instrument and will instead allow for a constructive focus on the contents of the future instrument.
Activities of private and military security companies became the object of heightened international scrutiny particularly after events in the context of the armed conflict in Iraq over the past decade.
These include unlawful killings at Nisoor Square and torture and ill-treatment at Abu Graib prison.
A Working Group of experts on mercenary activity appointed by the UN Human Rights Council started to look at the issues in 2007, generating proposals for international instruments to fill perceived regulatory gaps.
Many States have now accepted that the absence of an international regulatory framework combined with limited or non-existent regulation at national level offers a “breeding ground” for human rights abuses committed by PMSCs.
The main clients of these companies are governments that contract them to carry out specific functions, including some that many believe should remain firmly in the hands of public officials.
One key issue that the future instrument should address is the circumstances under which PMSCs can be considered to act on behalf of the State when they are contracted to perform functions that are typically State functions.
International law already governs some aspects of PMSC activity. International human rights law provides for a general obligation of States to protect against the adverse consequences of PMSC activity.
There has also been other international regulatory activity outside of UN auspices in this area.
In 2008 a select group of mostly Western States led by the Government of Switzerland and the International Committee of the Red Cross (ICRC) elaborated the Montreux Document on pertinent obligations for States regarding PMSCs.
Other initiatives such as a Code of Conduct for the PMSCs themselves followed suit. But many States and civil society organizations regard these initiatives as insufficient and lacking the universality afforded by UN processes.
One notable weakness in current approaches is the dearth of standards and mechanisms squarely addressing accountability of private security industry and to ensure access to remedy for those victims of abuse.
Experience shows that States legal frameworks have limited effectiveness when abuses occur at the cross-border level, involving more than one company in more than one jurisdiction, especially in conflict or post-conflict environments.
The prospective international regulatory framework should surely build on existing initiatives, research and findings.
To that end, broad participation by all stakeholders should be ensured.
In this regard, participation of civil society and NGOs specialized in human rights has not been optimal so far.
States leading this new process should make all and every effort to fill that gap, ensuring that international and national civil society receive timely information and facilities for meaningful participation.
May 25, 2017 | News, Op-eds
An opinion editorial by Daniel Aguirre, ICJ Legal Adviser in Myanmar.
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 mandamus and 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.
May 3, 2017 | Advocacy
ICJ’s Senior Legal Adviser Carlos Lopez made an important speech today at a Joint Hearing of the European Parliament’s Committee on International Trade and Subcommittee on Human Rights.
The declaration was about the United Nations intergovernmental process towards a treaty in the field of business & human rights.
This treaty could be a crucial instrument for the EU, European countries and European businesses to promote common global rules of respect for human rights that are stronger and enforceable vis a vis companies from all regions.
This will help level the playing field for the companies that have a genuine interest in human rights protection by creating a common standard.
For Governments, it is an important instrument to advance the objective of a level playing field for businesses in the global marketplace.
This is not only important and a condition of success for European businesses who currently have to compete with businesses that do not have to observe the same rules in other parts of the world, but is also a condition for the sustainability of economic globalization and its potential to deliver for the human rights for all.
Download Carlos Lopez’s speech below:
Europe-ICJ speech at the european parliament-ADVOCACY-2017-ENG (in PDF)
