Landmark Report Promotes Human Rights in Transboundary Investments

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Almost 10 years ago, hundreds of villagers in Sre Ambel District in Koh Kong Province in south-western Cambodia were violently evicted from their homes to make way for a massive land concession granted to a group of companies to develop a sugar plantation and processing factory. The plantation and factory, majority owned by Thai company Khon Kaen Sugar Limited (KSL) produces sugar for duty free imports to the United Kingdom, in the name of supporting ‘economic development’ in Cambodia under a European Union trade for development initiative.

 

 Sugar processing factory, Sre Ambel, following the evictions

About 500 families from the villages lost approximately 5,000 hectares of land and most of their livelihoods, security, and well-being to the privately run sugarcane plantations in the concession.

Now, finally, a report of the National Human Rights Commission of Thailand has publicly acknowledged these human rights violations – the first time any national human rights institution (NHRI) in the region has investigated a complaint about the impacts of transboundary investments. The report’s findings vindicate ongoing efforts by the displaced villagers to have their land returned and the violations remediated. It paves the way for recognition of extra-territorial obligations (ETOs) of governments and companies to respect human rights connected to overseas investments.

This case has become emblematic of the rampant land grabbing and human rights abuses associated with economic land concessions (ELCs) in Cambodia, where massive redistribution of land to private companies for commercial plantations and agribusiness has occurred over the last decade. Unfortunately, the avenues to seek recourse for such abuses are extremely limited in Cambodia, especially where powerful political actors are invested in concessions or relationships with corporate entities. The resulting displacement and disenfranchisement of communities goes hand in hand with corruption and illegality in the granting of concessions. Few of the investors and companies complicit in such abuses have been brought to justice.

Community demonstration and roadblock following the evictions, 2006

A landmark report from the Thai Human Rights Commission  

The National Human Rights Commission of Thailand’s (NHRCT) investigation of the case found that the land grab violated the right to life, the right to self-determination, including the right to manage and benefit from natural resources, and the right to development of the affected villagers. The report states that KSL bears responsibility for the human rights violations, even if the company itself did not perpetrate the abuses, due to its decision to receive and benefit from the land concession where the violations occurred.

The NHRCT’s investigation has been recognized by Surya Subedi, the UN Special Rapporteur on Human Rights in Cambodia, as “a landmark case for international advocacy in Cambodia”, noting that “the use of [national human rights institutions] NHRIs could be further explored for land concession cases.”

The report is important, and not just for Cambodia. Increasingly, companies from Thailand and other wealthier economies are eyeing investments in neighboring countries, where weak legal regimes are further hampered by opaque and unaccountable decision-making, leaving communities threatened by the harmful impacts of investments and without any means of recourse.  In Southeast Asia, a region where intra-regional investment is on the rise, facilitated through the establishment this year of the ASEAN Economic Community (AEC), the laws and institutions governing environmental protection and safeguarding human rights vary widely, both in terms of standards and their implementation.

Panellists at the ASEAN People's Forum workshop on Extraterritorial Obligations, from left to right: Sor Rattanamanee Polkla (Community Resources Centre, Thailand); Dr Niran Pitakwatchara MD, Commissioner, NHRCT; Eang Vuthy, (Equitable Cambodia); Ye Lin Myint (Dawei Development Association, Myanmar); Maureen Harris (EarthRights International); Professor Dato' Dr. Aishah Bidin, Commissioner, SUHAKAM; Dr. Seree Nonthasoot, the Representative of Thailand to the ASEAN Intergovernmental Commission on Human Right

A model for the region?

The NHRCT’s ground-breaking investigation is an important step in promoting accountability for communities harmed by transboundary investments, and a potential model for the region on protecting and promoting extra-territorial human rights obligations (ETOs). Since the complaint by the villagers, other complaints have been filed with the NHRCT regarding human rights abuses associated with Thai investments in neighbouring countries, including another sugar plantation in Oddar Meanchey, Cambodia, the development of the Dawei Special Economic Zone (SEZ) and mining projects in Myanmar, and construction of the Xayaburi hydropower dam in Laos.

In October last year, local communities in Cambodia and Thailand filed the first complaint regarding transboundary investment to the Malaysian Human Rights Commission (SUHAKAM). The complaint concerns involvement by Malaysian company Mega First in the Don Sahong hydropower dam in Laos. The dam is being developed on the Mekong River less than two kilometres from the Cambodian border, threatening the rights of communities up and downstream who rely on the river’s fisheries for food security and livelihoods.

These cases were presented in April at a regional workshop in Kuala Lumpur, Malaysia, during the ASEAN People’s Forum, organised and facilitated by ERI and partner organizations. The event engaged civil society panellists from Equitable Cambodia, Community Resources Centre (Thailand), Dawei Development Association (Myanmar), and speakers from the NHRCT, SUHAKAM, and the ASEAN Intergovernmental Commission on Human Rights (AICHR). Panel discussions highlighted the accountability gap posed by human rights complaints regarding cross-border investments and the potential role of national and regional human rights institutions in preventing and addressing abuses. Measures are urgently needed within ASEAN to implement and strengthen recognition of ETOs at national and regional levels and ensure access to remedy for affected communities.

ETOs developing in international law

Complaints about the human rights impacts of transboundary investments are supported by recent developments in international law. Several international instruments and standard setting initiatives have provided increased clarity on the extraterritorial obligations (ETOs) of government and businesses to protect and respect human rights:

  • The United Nations Guiding Principles on Business and Human Rights (UNGPs), adopted in 2011, outlines the respective obligations of businesses and governments in relation to the human rights impacts of business activities, including overseas investments. The UN Human Rights Council recently passed a resolution on the development of an international legally binding instrument on business and human rights which will build on the standards laid out in the UNGPs.
  • The Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011) were developed by a group of legal experts and international jurists. The principles aim to define and clarify state human rights obligations in the current era of economic globalization, expanding the scope of obligations beyond borders, including an obligation to regulate the conduct of companies operating abroad.
  • In Southeast Asia, the Bangkok Declaration on Extraterritorial Human Rights Obligations (2014) was produced in 2014 by a roundtable of civil society, human rights experts, government representatives, and NHRIs (including the Thai, Malaysian, Indonesian, and Philippines NHRIs). The Declaration articulates an urgent need to advance the implementation of ETOs in light of the rapid pace of economic, political, and social integration in the region and an associated increase in cross-border human rights violations. It recognises a critical role in this regard for NHRIs.

Across the region, communities suffering the adverse human rights impacts of transboundary investment activities lack access to an effective remedy. In Sre Ambel, in the absence of effective national mechanisms or laws to address adverse human rights impacts and the impunity of the actors involved, the NHRCT’s investigation and report represent an important platform for addressing the issues facing the communities. It has enabled the voices of the villagers to be heard, human rights abuses to be identified and articulated, and bolsters the ongoing efforts of the communities to seek resolution and remediation.

This post was written by Maureen Harris, former staff.

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