Myanmar: blame game at Letpadaung
An opinion piece by Daniel Aguirre, ICJ’s International Legal Adviser in Myanmar, and Irene Pietropaoli, an independent consultant and researcher on Business and Human Rights based in Yangon.
Many are questioning whether anyone be held accountable for the killing of Daw Khin Win (photo), who was shot during a protest against the Letpadaung copper mine.
But what are the responsibilities of the mine’s investors in relation to the dispute? The Letpadaung mine is a joint venture between Chinese company Wanbao and the military-owned Myanmar Economic Holdings Limited.
The mine operator, Myanmar Wanbao, has made a public commitment to sustainable development and human rights inthe final draft of its comprehensive Environmental and Social Impact Assessment (ESIA), which was released on 25 June 2014.
According to the company’s website, the Letpadaung project “will play as a role model in environmental conservation sector of the Union of Myanmar”.
But what kind of role model for responsible investment will Letpadaung really be?
The answer will provide vital clues to the direction of Myanmar’s economic development, and whether the unlocking of the country’s enormous resources improvesthe lives of millions of people or prompts another “resource curse” – whereby powerful political and economic actors scramble for wealth over the backs of ordinary people.
Residents of Monywa, some 100 kilometres west of Mandalay, have complained for years about unlawful land confiscations and environmental damage caused by the mine’s operations.
In November 2012, dozens of protesters, including monks, were severely burned when riot police allegedly used white phosphorous.
One indicator of Wanbao’s commitment to responsible conduct is how it responds to Daw Khin Win’s killing and the protests over the mine’s operation.
Daw Khin Win was killed on December 22, when she and other residents tried to stop Wanbao workers from fencing off their land for development. The protesters faced company security as well as local police.
An initial investigation by the Myanmar National Human Rights Commission ruled that the police were responsible for the shooting and recommended legal action.
So far, however, the authorities have been reluctant to investigate. Instead, they have prosecuted protesters demanding justice for Daw Khin Win.
The state’s failure to protect human rights does not absolve the company responsibility, however. Myanmar Wanbao promised that it would not come to this. The company’s ESIA outlines its commitment to local laws as well as international standards on law enforcement in securing its operations.
In the assessment, the company agreed to develop a security plan in order to prevent or mitigate any threats identified in its risk assessment.
“The objective of the security plan will be to ensure that security is deployed in a way that respects and protects human dignity and human rights, avoids creating conflict and addresses security threats in as peaceful a way as possible,” Wanbao said.
The agreement’s social management plan goes into detail on Wanbao’s responsibility in a section on “security and the use of force”.
The company has committed, in line with international standards, to ensuring that force is used only as a last resort where necessary to proportionately mitigate risks identified in the company’s risk assessment. They have agreed to provide the necessary training for security in this regard.
The company has acknowledged the concerns associated with project security in weak governance zones. Its ESIA states that government security services protecting its operations must respect international guidelines on the use of force.
Wanbao also committed to conducting due diligence on all security providers in order “to avoid retaining the services of any group or individual that has previously been responsible for violations of human rights or humanitarian law”.
These are important preventative measures for any company operating in Myanmar, where the rule of law and human rights are not well developed.
Wanbao has repeatedly claimed that it has fulfilled legal requirements.
“Even though Myanmar Wanbao has met its legal requirements and has paid compensation and subsidies, the company has gone further to safeguard the livelihood and well-being of its community,” it says.
Given the continued allegations of human rights abuse at the Letpadaung mine, it is important for Wanbao to demonstrate that it has conducted due diligence and undertaken the remedial measuresoutlined in its ESIA.
Wanbao should make public its risk assessment and its security plan to avoid being perceived as complicit in human rights abuses.
Its ESIA demands that a full report is submitted to its office if a firearm is discharged, as it was during the December 22 protest at which Daw Khin Win was killed. This report should be made public.
Now that human rights abuses related to security and the use of force have occurred, the company should make good on its commitment to create an effective community complaints mechanism.
The ESIA explains that this mechanism would allow the community to express concerns about security. It also states that Wanbao will investigate allegations raised and take action to prevent their reoccurrence.
It is vital that Wanbao be seen as implementing its own rules and helping the local community come to terms with recent events.
The establishment of this mechanism is important in Myanmar, where the police and judiciary are often unwilling or unable to address these issues.
This has certainly been the case so far with the killing of Daw Khin Win.
Wanbao should work closely with civil society to improve its relations with the local community and ensure respect for the rights of local people. It should immediately implement the terms of its ESIA.
If it has done so, the company should make its efforts public and explain why events unfolded in a manner that has led to accusations of human rights abuses by security forces.
The government of Myanmar should carefully monitor the implementation of ESIAs to ensure that these are meaningful commitments and not just exercises in public relations.