Released at the official visit of Mr. Dante Pesce and Dr. Surya Deva, Member of the United Nations Working Group on Business and Human Rights and their team to Thailand regarding the National Action Plan on Business and Human Rights (NAP) and the concrete implementation of business and human rights legislation and norms for Thai state and non-state actors, from March 26^th to April 4^th, 2018. A letter from ETOs-Watch to Mr. Dante Pesce and Dr. Surya Deva is attached below and posted here.

March 26^th, 2018, Bangkok – We, non-governmental organizations, ETOs-Watch members and partners representing communities who are directly affected by Thai investments abroad, including over eight mega-projects in Cambodia, Lao PDR and Myanmar, have been monitoring Thai outbound investments in Myanmar, Cambodia and Lao PDR. These include: Koh Kong and Oddar Meanchey sugar plantations in Cambodia;  Xayaburi dam and Hongsa coal mine and power plant in Lao PDR; and Dawei Special Economic Zone, Banchaung coal mine, Heinda tin mine, and Hatgyi dam in Myanmar. Communities affected by Thai outbound investment demanded for compensation and remedy caused by Thai investments.  We, ETOs-Watch Coalition, call for the Thai government to take proactive steps to protect the rights of communities that have already been or may be affected by Thai outbound investments. We call for Thai investors to conduct due diligence and to comply with the United Nations Guiding Principles on Business and Human Rights (UNGPs) and other international human rights best practices and standards.

Across ASEAN countries, there is growing concern over a lack of accountability for human rights violations associated with Thai outbound investments. Negative environmental and social impacts of these investments commonly include destruction of livelihoods, land grabs, and forced evictions. Since 2014, communities affected by Thai investments abroad have voiced their complaints and sought remedies through litigation and non-judicial channels, including the National Human Rights Commission of Thailand (NHRCT).

The NHRCT started to investigate Thailand’s outbound investments and developed guiding recommendations to concretize the extraterritorial human rights obligations of Thai state and non-state actors. Based on its investigations, the NHRCT issued policy recommendations to the Thai government for ensuring adherence to the UNGPs. The investigations and the NHRCT’s policy recommendations have resulted in the Cabinet Resolutions in May 2016 and May 2017 that endorsed the UNGPs.

On May 31^st, 2017, at a United Nations meeting on business and human rights in Bangkok, Thai Prime Minister General Prayuth Chan-Ocha affirmed the Thai government’s commitment to implement the UNGPs in his opening speech. He stipulated that businesses are responsible for upholding human rights and guaranteeing dignity, safety, equality, equal opportunity, access to government services, and fair treatment. The Prime Minister also presided over the signing of a memorandum of cooperation to take concrete step based on the UNGPs and to seek greater commitment from businesses actors to comply with human rights norms and laws. This memorandum was signed by key agencies responsible for advancing the NAP, as outlined in the Cabinet Resolutions. These government agencies, including the Ministries of Justice, Foreign Affairs, and Commerce, were officially assigned to act on and respond to these Cabinet Resolutions.

We reaffirm the main recommendations made from the NHRCT, which include establishing a grievance mechanism to ensure that the private sector respects fundamental human rights, in compliance with the UNGPs. To prevent human rights violations and ensure access to effective remedies, both human rights due diligence and effective grievance mechanisms are necessary. We call on Thai investors operating abroad, especially in the Mekong region and Myanmar, to conduct due diligence in assessing the potential and existing human rights impacts of all projects.

We hereby urge the Thai government and all relevant agencies to undertake actual implementation of laws and norms based on these Cabinet Resolutions, while also humbly requesting the UN Working Group to follow the Thai government’s progress and provide instructions and recommendations during this visit and in the future.

In the case of litigation, Thailand’s legislation allows victims of abuses to seek legal remedy and compensation. These legal remedies may be supported by Thailand’s Civil and Commercial Code Section 420, which suggests: “A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore.”

In the case of abuses that happen as a result of outbound investment, citing Thailand’s Conflict of Law Act B.E. 2481 Section 7 and 15 offer the best support for remediation. Section 7 reads: “In case of conflict as to the nationality of a juristic person, the nationality of such person is that of the country where it has its principal office or establishment.” Section 15 reads: “An obligation arising out of a wrongful act is governed by the law of the place where the facts constituting such wrongful act have taken place. The foregoing provision does not apply to facts which, having taken place in a foreign country, are not wrongful according to the Thai law. In no case can the injured party claim compensation or remedies other than those allowed by the Thai law.”

Specifically, the Thai government should:

• Take proactive steps to protect the rights of communities that have already been or may be affected by Thai outbound investment and to monitor, prevent, investigate, punish and redress abuses and infringements on human rights.
• Ensure the development of the NAP to begin implementing the UNGPs and to lay out key regulations to improve the accountability of Thai investors abroad, including in relation to extraterritorial obligations and outbound investments.
• Enforce a mechanism to ensure that Thai business conduct due diligence, comply with the UNGPs and establish company-level grievance procedures that are accessible to communities affected by their operations.

Specifically, Thai investors operating abroad should:

• Identify, address and act to prevent human rights violations resulting from Thai investments abroad.
• Engage communities affected by a project in meaningful, public participation and consultation regarding project impacts.
• Conduct transboundary impact assessments and human rights assessments based on these consultations with local communities who will be affected by the project. A transboundary impact assessment and a human rights impacts assessment should be done before the decision is made to undertake a project.
• Establish company-level grievance mechanisms for communities who may be impacted by a project to allow them to raise their concerns and to facilitate their participation in external or community-driven grievance mechanisms.
• Provide compensation to the affected communities and support the communities to obtain the compensation and remedies they need throughout the remediation process.

A summary of supporting research by Thai civil society organization Mekong Butterfly for ETOs Watch is posted here.