It has been one year since Thailand’s cabinet released its resolution to regulate Thai outbound investment and recommended compliance with the United Nations Guiding Principles on Business and Human Rights (UNGPs). But, how does last year’s resolution impact Thai investors who operate in the region? Is the resolution widely known? Is it strong enough to force Thai investors to provide a remedy to those affected by their projects?
Thailand’s investment in neighboring Southeast Asian countries has intensified in recent years. Thailand is the third largest investor in Myanmar (after China and Singapore) and one of the largest investors in the hydropower sector in Laos. Megaprojects such as Dawei Special Economic Zone (SEZ) in Myanmar, Koh Kong and Oddar Meanchey sugar plantations in Cambodia, and the Hongsa Mine and Power Station in Laos are owned by Thai investors. Large Thai Banks have financed Hongsa as well as the Xayaburi dam in Laos.
These Thai-owned investments already have a track record of poor compliance with human rights principles and standards. There are also growing concerns over the environmental and social impacts of such investments due to a lack of accountability and meaningful consultation with the affected communities. This has all raised concerns about Thailand’s commitment to its extraterritorial obligations when investing in megaprojects in neighboring countries.
“Although it has been one year since the cabinet resolution was adopted, we are concerned about the extent to which this framework has been implemented. Can this framework be used to force Thai investors to offer remedies to the people affected by their projects? This question remains to be answered.”
– Chompoo Kornkanok, Lawyer, ERI Bertha Legal Fellow.
Thai cabinet resolutions have so far referred to three Thai investment projects in other countries: Dawei Special Economic Zone (SEZ) in Myanmar, Koh Kong sugar plantation in Cambodia, and transmission lines from the Hongsa coal power plant in Laos to Nan province, Thailand. These projects are impacting local communities through land grabs, forced eviction, lack of meaningful consultation with those affected, and destruction of the natural resources that communities rely on for their livelihoods. What links these three projects together, in addition to Thai financial backing, is that all three are marred by strong evidence of human rights violations.
In Koh Kong Province, Cambodia, 456 families from three villages lost approximately 5,000 hectares of land in clearing operations and forced evictions to make way for a sugar plantation. In Dawei SEZ, residents are facing land grabs and forced evictions, and the village’s main water sources were contaminated with toxic heavy metals from the mining operation. In the case of the Hongsa transmission lines, villagers in Nan who have been impacted by land grabs are still awaiting compensation.
“In the case of Dawei SEZ, there have been impacts to local communities from different activities such as road construction, mining, a small port, resettlement and forced eviction. The impacted villagers must be provided just and fair compensation.”
– Ae Areewan, member of CSO coalition on Thai outbound investment.
Earlier this month, we released a video from the National Human Rights Commission of Thailand’s (NHRCT’s) visit to Dawei, in the Tanintharyi region of Myanmar. The visit focused on two Thai-owned projects in Dawei: the Heinda Tin Mine and Dawei Special Economic Zone (SEZ). The visitors were looking at the human rights violations and loss of livelihoods related to the projects. ERI released this video to mark the one-year anniversary of Thailand’s cabinet resolution to regulate their outbound investment in the Mekong region.
“The right to access information is the first important step for participation. People must have the right to consider on their own whether to accept investment projects in their communities. Especially in cases where projects might not align with their ideas of nature, ecology, culture and tradition. It might be better if corporations and Thai investors would take this seriously.”
– Tuenjai Deetes, National Human Rights Commissioner of Thailand, quoted in ERI’s video on projects in Dawei
The May 2016 resolution provides guidelines for how Thai investors who operate international businesses should adopt and comply with the UNGP and the “protect, respect and remedy” framework for business and human rights. There are three Thai Ministries designated to establish a mechanism for implementing this framework: the Ministries of Justice, Commerce, and Foreign Affairs. The adoption of the UNGP to regulate Thai outbound investment was a significant development for those who face human rights abuses by Thai investors and their mega projects in Myanmar and the Mekong Region (such as SEZs, dams, and coal projects). However, defining and drafting a more thorough framework for Thailand’s implementation of the UNGP is crucial.
“Although this resolution is well-written on paper, the most important parts are the implementation and follow-up plans, including raising awareness of the cabinet resolution among Thai investors. We must advocate and push the cabinet resolution into a legislative bill in order to ensure a stronger enforcement of this law.”
– Neung Thornthan, ERI Mekong Legal Associate
Civil society groups concerned with human rights violations by Thai businesses in the neighboring countries have advocated and promoted the principles of the UNGP as a way to create a stronger mechanism for regulating Thai outbound investments. Advocacy by Thai CSOs around these issues is focused largely on two platforms: a Thai CSO coalition that monitors Thai outbound investment in Myanmar and the Mekong Region, and a Thai CSO coalition that collaborates with the UN for the Universal Periodic Review (UPR). The Thai outbound investment coalition aims to coordinate advocacy concerning the practices of Thai investors overseas and Thailand’s extraterritorial obligations. The coalition to collaborate with the UN supports the UPR by establishing a CSO-driven human rights monitoring system throughout Thailand and by further sharing knowledge of human rights issues with communities at the grassroots level. This includes sharing a National Action Plan for Business and Human Rights in Thailand and developing legal frameworks for Thailand to manage business and human rights.
This two-pronged approach makes the next step clear: Thai investors who operate internationally must adopt and operationalize the UNGPs for investments in the Mekong region. Where development projects have already caused human rights abuses and damages to villagers’ livelihoods, Thai investors should enter into a dialogue with those affected, in order to form a basis for a discussion about remedies. With projects such as Koh Kong sugar plantation in Cambodia and the Heinda Mine in Myanmar, the discussion and dialogue around remedies are crucial. Remedies may take a range of forms: apologies, rehabilitation, fair compensation, and guarantees that the same abuses won’t be repeated.
“To demand stronger compliance, I support the development of a National Action Plan which could impose a minimum standard that Thai investors must meet. This could ensure that they commit to providing an effective remedy for the people affected by a project.”
– Chompoo Kornkanok, Lawyer, ERI Bertha Legal Fellow.
In the past few years, communities affected by Dawei SEZ, Hongsa transmission lines and Koh Kong sugar plantation have all submitted complaints to the National Human Rights Commission of Thailand. These complaints triggered landmark investigations into the transboundary impacts of Thai-owned projects, with the ultimate goal of seeking remedies for those affected. The NHRCT has provided a useful forum for lodging complaints and calling for investigations of Thai investors in cases of transboundary impacts. Through this channel, pressure must be kept on Thai investors to ensure that they respect the rights of communities, act on due diligence and provide remedies to the people affected by a project.
From principles to actions, Thai investors must follow the UNGP and practice human rights and environmental due diligence. This means having meaningful consultation with the communities affected by a project, it also means establishing grievance mechanisms that communities can access effectively and it means providing remedies for any grievances that arise. The purpose of due diligence is for investors to understand the risks that their activities pose to communities, throughout the stages of a project – from design, to consultation, to construction and operation. Thai banks must also review the risks to their reputation when investing in large-scale projects that don’t conform to international social and environmental regulations. Above all, Thai investors will have to respect the rights of the communities affected by their projects, even when these projects are located outside of Thailand.
Defending human rights and community rights must be a priority from the beginning of every development project. Communities must be consulted, given access to information relevant to the project, and given the opportunity to participate in project discussions and Environmental Impact Assessments. This is vital if they are going to protect their land rights and natural resources.