Sep 30, 2015 | Advocacy, Non-legal submissions
The ICJ today delivered an oral statement to the UN Human Rights Council, commenting on the landmark UN investigation and report on violations of human rights and humanitarian law in Sri Lanka.
The statement also welcomes recommendations for integration of international judges, prosecutors, lawyers and investigators into any accountability mechanism:
“The International Commission of Jurists (ICJ) welcomes the OHCHR Report on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka (UN Doc A/HRC/30/61), which sets out the principal findings of the Report of the OHCHR Investigation on Sri Lanka (OISL Report, UN Doc A/HRC/30/CRP.2) documenting alleged serious violations and abuses of human rights and related crimes during the armed conflict in Sri Lanka. The ICJ commends the investigation team for its historic contribution towards reconciliation and the realization of victims’ rights in Sri Lanka.
The ICJ works with judiciaries, governments, civil society and victims around the world to address impunity and victims’ right to remedy for violations of international human rights and humanitarian law, including in situations of transition.
For over thirty years, the ICJ has documented and reported on a gradual erosion of judicial independence, impartiality and integrity under successive governments in Sri Lanka, and the resulting culture of impunity, including in the judiciary.[1]
The ICJ considers the International Criminal Court (ICC) to be the preferred mechanism for individual accountability where national authorities and courts lack the capacity or the willingness to genuinely investigate and prosecute all war crimes and crimes against humanity. In the absence of an ICC process, the ICJ’s extensive experience demonstrates that any credible and effective accountability process in Sri Lanka must involve, at a minimum, a majority of international judges, prosecutors and investigators.
The ICJ therefore welcomes the High Commissioner’s recommendation for a hybrid court and prosecutor’s office that fully integrates international judges, prosecutors, lawyers and investigators.
Also essential are the OHCHR recommendations on: mandate and resources of these mechanisms; legislating retroactive recognition of international crimes under national law; justice and security sector reform; repealing the Prevention of Terrorism Act (PTA); strengthening the Witness and Victim Protection Act; accession to the International Convention on the Protection of All Persons from Enforced Disappearances (CED), the Additional Protocols to the Geneva Convention, and the Rome Statute of the International Criminal Court; and continued monitoring of implementation through an OHCHR country office and the Council.
The ICJ welcomes that the tabled draft resolution explicitly recognises the need for international judges, prosecutors, lawyers and investigators. We call on the Council to adopt the resolution with, and call on the Government of Sri Lanka to urgently implement, these and other key elements of the recommendations of the High Commissioner’s Report in full.
[1] See, e.g., ICJ, Authority Without Accountability: The Crisis of Impunity in Sri Lanka (2012)
The statement can be downloaded in PDF format here: Sri Lanka-ICJ Oral Statement HRC-Advocacy-Non Legal submission-2015-ENG
Sep 29, 2015 | Events, News
From 30 September to 1 October 2015, the Asian Forum for Human Rights and Development (FORUM-ASIA), International Commission of Jurists (ICJ), and Boat People SOS (BPSOS) will jointly organize a conference in Bangkok.
The regional conference will discuss pressing concerns on the promotion and protection of freedom of religion or belief.
The UN Special Rapporteur on Freedom on Religion or Belief, Mr. Heiner Bielefeldt, will be joined by approximately 60-70 human rights defenders, members of religious groups, rights groups, UN agencies and representatives from the ASEAN Intergovernmental Commission on Human Rights, ASEAN Commission on the Promotion and Protection of Rights of Women and Children, National Human Rights Institutions and other government agencies.
The event will provide a multi-stakeholder platform to discuss key emerging issues, distinct and shared challenges faced by various Southeast Asian religious groups and advocates of religious freedom, identify advocacy strategies and best practices to overcome these obstacles, and to strengthen cooperation between the different stakeholders important in promoting freedom of religion or belief in Southeast Asia.
The event will also be an opportunity for participants to have a better understanding of the mandate of the UN Special Rapporteur on freedom of religion or belief.
Some of the key topics expected to be discussed include state control and regulation of religion, extreme interpretations of religion, and how freedom of religion together with other human rights are complementary or mutually reinforcing.
Upon the completion of the conference, the Special Rapporteur will hold a press briefing at the Foreign Correspondents’ Club of Thailand (FCCT) at 7.30pm on 1 October 2015 to provide an overview of the status of freedom of religion or belief in Southeast Asia and how this right could be better protected and promoted.
Sep 23, 2015
An opinion piece by Daniel Aguirre, ICJ International Legal Adviser based in Yangon, Myanmar.
A newly drafted investment law – much awaited by investors eager to access Myanmar’s market – has been completed and will be submitted to the Hluttaw (photo) at its next session.
The much-improved draft goes a long way toward protecting the rights of people and the environment in Myanmar from foreign investments that may create and aggravate human rights and environmental problems.
The most significant improvements to this draft of the national investment law are that it does not give foreign investors recourse to international investor-State dispute mechanisms (ISDMs) and includes key provisions protecting the government’s ‘right to regulate’ in favour of human rights and the environment.
Civil society organizations, including the ICJ, have advocated for these changes to prevent foreign investors from using international arbitration as a means to challenge public policy designed to protect human rights and the environment.
This draft law stands in sharp contrast with the bilateral investment treaties (BITs) that Myanmar has signed with a number of major foreign investors (for example, China, India, Japan, Philippines and Thailand), all of which include troubling provisions that can undermine the government’s ‘right to regulate’ in favour of the environment and human rights.
That is why Myanmar’s lawmakers in the Hluttaw must now ensure that they adopt the latest draft of the investment law without diminishing it.
They should recognize civil society’s calls for the promotion of responsible investment as well as the protection of the environment and human rights.
Investment Law is a major factor in Myanmar’s efforts to ensure sustainable development.
It is also a means by which to ensure that Myanmar will be able to discharge its human rights obligations.
The national investment law, if adopted in present form, is also very important because it should serve as the basis for future BIT negotiations, for instance with the European Union and the United States.
It is a credit to the Directorate of Investment and Companies Administration (DICA) that it stood up to pressure from both international and domestic investors greedily eyeing Myanmar’s abundant resources.
Instead, DICA undertook a consultative process in which civil society was able to voice their concerns about the previous draft of the investment law.
There were a number of consultations and the process was by no means perfect.
But the adoption of a consultation process is an important step in Myanmar – one unheard of a few years ago – and has resulted in a better law put forward. Unfortunately, the same process has not been adopted during the negotiation of Myanmar’s BITs.
Economic investment should contribute to the rule of law and human rights.
But in order for this to happen, Myanmar must align policies with a vision of development based on local and national aspirations, placing people, and their rights, at the centre of the process.
As such, investment law, both in the national and international contexts, must be part of an overall development strategy.
It should refer to the various legal regimes, such as international human rights law, environmental conservation and BITs, with which it will interact. DICA has done its part to produce a draft in consultation with the public.
The decisions to be made now in the Hluttaw will shape Myanmar’s economic development and influence the protection of human rights and the environment for decades to come.
The much-criticized previous draft gave priority to investment protection over human rights.
Individual foreign investors could use arbitral panels to defeat government regulations if they hurt their profits – possibly even if such regulations were in line with Myanmar’s constitutional obligation to protect human rights.
The new draft of the national law, by contrast, refers to responsible investment and the protection of the environment.
It also sets out general exceptions to the protections for investors, allowing the government to regulate in favour of the environment and health.
It clarifies that Myanmar’s international legal commitments will be considered in arbitration.
This signals the government’s intention to regulate in these areas in the future. This intention should also be reflected in Myanmar’s BITs and the country should renegotiate old treaties that do not protect its ‘right to regulate’.
Myanmar has recently signed, though not yet ratified, the International Covenant on Economic Social and Cultural Rights, signaling its willingness to put in place policies to progressively achieve healthcare, education and social security.
These rights are also protected in Myanmar’s constitution. It is these types of rights that require the public policy regulation threatened by BITs.
Civil society’s concerns over the lack of human rights or environmental safeguards in investment law are not idle fears: investment protection can generate costly disputes – some arbitral awards run into the billions of dollars.
In effect, investors’ interests become legally protected, while the people of Myanmar must rely on the underdeveloped national legal system that does not provide adequate access to justice.
There are a growing number of international examples where new laws and regulations passed by democratically elected governments to protect economic, social and cultural rights have been challenged by foreign investors through BITs because they would decrease their profits.
For example, Phillip Morris Asia, a tobacco company, is using an ISDM to legally challenge the Australian government over its plain packaging regulations, which were designed to curb cigarette consumption.
Investment law should provide certainty to investors and protect their interests from random or discriminatory change to government regulations or policies.
But in Myanmar a wide range of laws and policies is missing or in nascent stages of development.
Improperly prioritizing protection for investors would dissuade Myanmar from adopting policies, such as strict environmental protection, public health or human rights standards.
Myanmar must ensure that it retains a right to regulate in both its national investment law and its international agreements.
These powers must be used for legitimate public policy rather than discriminatory protectionism.
Photo credit: Htoo Tay Zar
