The situation in which Thai capital expands into several countries in lower Mekong, as well as Myanmar and the performance, tends to increase without any mechanism to supervise. This situation brought about human rights violation by unaccountable investment in Cambodia, Lao PDR and Myanmar leading to environmental and social impacts such as the impact on local livelihood, land grabbing, and violent eviction.

The affected communities have insisted their cases of rights violation to get the relevant actors involved in finding solutions and remedies through many channels. One of them is the National Human Rights Commission of Thailand (NHRCT) who has received complaints and investigated on Thailand’s cross-border investment cases outside of its sovereignty and responsibility. According to the NHRCT’s investigation results, the Commission has issued a recommendation to the government to abide by and follow UN Guiding Principles (UNGPs) on Business and Human Rights. This recommendation resulted in the Cabinet Resolution in May 2016 and 2017 which endorse a standard in compliance with UNGPs and Thailand has to set up a mechanism to regulate or determine a mission to oversee Thai investors in foreign countries. Hopefully, they respect the fundamental human rights principles by applying the UNGPs on Business and Human Rights (implementing Protect, Respect and Remedy Framework) as a framework for Thailand when investing in foreign countries. Furthermore, during the UN Forum on Business and Human Rights, General Prayuth Chan-o-cha was the chairman of the Declaration of Cooperation signing to promote the Guiding Principles on Business and Human Rights between government agencies, business sectors and the NHRCT to ensure that the Government and other government sectors will maintain the covenant by doing their jobs in respecting and protecting people as well as communities from human rights abuse. They also conducted the National Action Plan on Business and Human Rights (NAPs) with the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Commerce that will be the main agencies in charge as stated in the Cabinet Resolution of May 2016 and May 2017.

After the Cabinet Resolution and Declaration of Cooperation, Thai Extra-Territorial Obligations Working Group (ETO Watch), other experts and the Subcommittee on Community and Resources Base have arranged a follow-up meeting as to the implementation according to the Cabinet Resolution on the promotion and protection of human rights from Thai cross-border investment concerning the NHRCT’s recommendation[1]

In this meeting, ETO Watch and the experts have reflected their concerns on the operation of private sectors and noticed some gaps in the Government’s work process as follow:

– Using legal or policy gaps by supporting many development projects which focus on stimulating the economy. Increasing private investment and transferring the employment of resources to various capital groups. Interpreting the Enhancement and Conservation National Environmental Quality Act B.E. 2535 by saying that in case of doing business outside of Thailand, there is no need to conduct an impact assessment. Actually, many projects had caused transboundary impacts, they moreover lack of proactive mechanisms to monitor or prevent such impacts by mean of using voluntary mechanism rather than creating regulations.

– The inefficient process of signing the Memorandum of Understanding (MOU) as well as other consulting process. There was no information provided and mainly using English language made a barrier to data access. There was a delay or the projects could start before the impact assessment was conducted. Also, there were human rights abuses, for instance, intimidating or forcing for land acquisition; unfair remedies and no choice for other careers after losing incomes and lands.

– The pattern of Thai business operations oversea often denied their responsibilities by using legal pretense. In addition, laws in many neighboring countries still lack of the efficient follow-up process, enforcement as well as other mechanisms such as the MRC which is still a paper tiger.

 

The summary of the meeting’s recommendations are as follow:

                – The process of making the NAPs must be in line with the UNGPs and take into account the Equator Principles to supervise the investment in which the Bank of Thailand should be responsible.

– Strongly implement the voluntary/semi-compulsory data disclosure measures of the Securities and Exchange Commission (SEC).

– The NHRCT should widely promote the usage of UNGPs and investigate the result. It should bring such standards to be in the process of public data disclosure by providing an official working channel to collaborate with the SEC and business operating mechanism.

– The Government has to establish a mechanism or committee as a special device oversight under the support of the NHRCT.

Considering the clarification of each agency, it is noted that the problems were the lack of clarity and that the relevant agencies did not seriously put the resolution into practice, no follow-up or even a performance supervision. Therefore, the suggestions for abovementioned problems are letting the Government set up a mechanism or a committee as a special oversight mechanism by assigning the NHRCT to drive thee operation and also, through the Subcommittee on Community and Resources Base, to submit a letter to Rights and Liberties Protection Department to acknowledge the scheme of NAPs.

From the day of follow-up meeting regarding the implementation as to the Cabinet Resolution on September, 2017 until now in 2018, the projects are still progressing and the affected people are still fighting as below summary of situation.

Projects’ update:      

                Ban Chaung Coal Mine: Energy Earth Public Company Limited is the project operator and the source of funding (in associated with East Star Company Limited), they had to stop investing in this mine since they were accused to the Department of Special Investigation (DSI) by Krungthai Bank of fraud by forging Bill of lading-B/L to import coal from Indonesia worth billions of baht. As a result, the company finally entered the reorganization process according to the Bankruptcy Act and filed a request for business rehabilitation to the Central Bankruptcy Court on July, 24.

Dawei Special Economic Zone: Myanmar Parliament approved a loan of 4.5 billion baht[2] after Thai Government offered the loan through the Neighbouring Countries Economic Development Cooperation Agency (Public Organization) or NEDA under the Ministry of Finance in order to improve the two-lane road from Ban Phu Nam Ron checkpoint, Kanchanaburi Province to Dawei Special Economic Zone. Myanmar Government obviously shows its intention to continue the Dawei Project, while there is the successive pressure from Japanese Government to push two phases of the project to go on simultaneously. Myanmar Government has announced that the improvement of the two-lane road will start in the middle of this year and now Italian-Thai Development Public Company Limited (ITD) on behalf of Myandawei Industrial Estate Company Limited has made a Revised Draft Final Report for Environment and Social Impact Assessment (ESIA) of the two-lane road. The approval of this loan was arranged in the mist of the opposition of local villagers. Additionally, the fact that the Cabinet has approved this loan of 4.5 billion baht and still not to change the decision was noted that the Cabinet Resolution of May, 2016 regarding Dawei Deep Seaport and Special Economic Zone in which there should be a supervising mechanism or private support in order to respect the essential human rights principles. It is suspicious whether an urging for additional measures to seriously abide by the UNGPs on Business and Human Rights could be really happened and implemented and why did they not follow the aforementioned 2016 Resolution or the attempt to push this project will repeat the selfishness of the business sectors and aggravate the abuse of human rights without any solution.

Pak Beng Hydropower Project: After the dialogue between the representatives from Datang (Lao) Pak Beng Hydropower Company Limited and those from CSO along the Mekong River on January 15, 2018 at Mekong School, Chiang Rai Province[3] until now, the Electricity Generating Authority of Thailand (EGAT) has not yet singed the Power Purchase Agreement (PPA)[4] because they need to review the new Power Development Plan of Thailand while the Electricity Generating Public Company Limited or EGCO Group kept on claiming their improvement about the investment in Pak Beng Hydropower Project.[5]

People and CSO movement

                Economic land concession for sugarcane plantation and sugar factory in Oddar Meanchey Province, Cambodia: two local representatives from 5 villages in Samrong District, Oddar Meanchey Province, Cambodia had traveled to file a lawsuit in the form of a ‘Class Action’ against Thai company cross-border invested in neighbouring country at Southern Bangkok Civil Court[6] appealing for damages from land grabbing, forced eviction and houses burning for those affected Cambodian villagers throughout this project. This lawsuit was the first class action against the group of Thai multinational investing and abusing human rights oversea with legal assistance from the Community Resource Center Foundation and Legal Rights and Environmental Protection Association.

Dawei Special Economic Zone: Dawei villagers affected by road construction project which is part of Dawei Special Economic Zone Project submitted a complaint letter to Minister of the Ministry of Natural Resources and Environmental Conservation of Myanmar on April 10, 2018 urging to reveal the Environmental Impact Assessment (EIA) and to listen to public opinion. Due to the road construction by ITD occurred in the area with fertile natural resources and biodiversity, it will surely cause social and environmental impact. Furthermore, ITD did not take any responsibility to solve the environmental and human rights violation problems from the past to this day.

The visit to Thailand of the UN Working Group on Business and Human Rights: as for this visit, the CSO; groups and organizations that keep tracking the Thai cross-border investment have issued a statement and submitted a letter[7] addressing their concerns about the current investment situation without any supervising mechanism to oversee whether such businesses comply with the standards and international human rights principles. Particularly, Thailand’s 8 mega projects in Cambodia, Lao PDR and Myanmar which are Economic Land Concession  for Sugarcane Plantation and Sugar Factory Project in Koh Kong Province as well as in Oddar Meanchey, Cambodia; Xayaburi Hydropower Project; Coal Mine and Hongsa Power Plant Project in Lao PDR; Heinda Tin Mine and Hatgyi Dam Project in Myanmar. These projects are all raising concerns over human rights abuses as a result of irresponsible investment both in environmental and social aspect, for example, impact on livelihood; land grabbing and village or community forced eviction. The UN Working Group therefore urged the Thai Government to comply with aforementioned recommendations and to establish a mechanism working in parallel with others measures as well as to sincerely adhere to the 3 pillars of UNGPs in case of cross-border investment. Thailand not only has to allow the UN Working Group to give advices regarding the operation during this visit, but also to follow-up the progress in the long run. The summary of recommendations to the Thai Government are as follow:

  • Create a participatory process, especially listening to the communities affected by the project in order to find the solutions together based on the needs and benefits of such communities. Also, conduct a process of cross-border impact assessment that covers environmental, social and human rights in collaborate with communities in the risky areas before making decision on the project.
  • Create a process to receive complaints regarding human rights and environmental violation from foreign investment caused by both Thai people and Thai investors. This role should be set for the NHRCT.
  • Create laws that require business sectors to respect human rights and make a real and fair access to remedies without any limit of proofing business’s status whether it was registered in Thailand or oversea. If there are some parts that show the linkages between Thai investors and the oversea organization based in foreign country, Thai investors must be responsible for human rights abuses occurred abroad and not using agency law which has limited liability.
  • Take proactive measures to protect the rights of the communities affected or likely to be affected by Thai cross-border investment, including create a prevention, monitoring, surveillance, remedies measures as well as penalties for those projects found violating human rights.
  • Ensure that the development of the NAPs is in line with the UNGPs and determine the regulations to emphasize the liability of Thai investors outside of its territory and cross-border investments

Government sector’s operation: Rights and Liberties Protection Department under the Ministry of Justice is a facilitator for conducting the NAPs[8] which is now in the process and the draft is expected to be completed in June, 2018.

 

………………….

References

[1] Summary Report https://themekongbutterfly.com/2017/09/18/%E0%B8%A3%E0%B8%B2%E0%B8%A2%E0%B8%87%E0%B8%B2%E0%B8%99%E0%B8%AA%E0%B8%A3%E0%B8%B8%E0%B8%9B%E0%B8%81%E0%B8%B2%E0%B8%A3%E0%B8%9B%E0%B8%A3%E0%B8%B0%E0%B8%8A%E0%B8%B8%E0%B8%A1%E0%B8%81%E0%B8%B2%E0%B8%A3/

[2] http://www.bangkokbiznews.com/news/detail/798824

[3]Statement from the 1st Dialogue between Datang Company regarding Pak Beng Hydropower Project and Thai Mekong People Network in 8 provinces

https://themekongbutterfly.com/2018/01/18/%E0%B9%81%E0%B8%96%E0%B8%A5%E0%B8%87%E0%B8%81%E0%B8%B2%E0%B8%A3%E0%B8%93%E0%B9%8C%E0%B8%88%E0%B8%B2%E0%B8%81%E0%B8%81%E0%B8%B2%E0%B8%A3%E0%B8%9B%E0%B8%A3%E0%B8%B0%E0%B8%8A%E0%B8%B8%E0%B8%A1%E0%B9%80/

[4] News on EGAT’s reply to Chiang Khong Conservation Group on February 15, 2018 https://www.matichon.co.th/news/863235

[5] News about the profit announcement of 2017 from the company’s website https://www.egco.com/th/news-update/2018/%E0%B9%80%E0%B8%AD%E0%B9%87%E0%B8%81%E0%B9%82%E0%B8%81-%E0%B8%81%E0%B8%A3%E0%B8%B8%E0%B9%8A%E0%B8%9B-%E0%B8%9B%E0%B8%A3%E0%B8%B0%E0%B8%81%E0%B8%B2%E0%B8%A8%E0%B8%81%E0%B8%B3%E0%B9%84%E0%B8%A3%E0%B8%9B%E0%B8%B5-2560

[6] http://transbordernews.in.th/home/?p=18711

[7] http://www.nationmultimedia.com/detail/national/30341882

[8] http://www.nhrc.or.th/getattachment/eb668587-0440-4a5c-8269-3e6bc89500e1/%E0%B9%90%E0%B9%95-%E0%B9%90%E0%B9%94-%E0%B9%96%E0%B9%91%E0%B8%82%E0%B9%88%E0%B8%B2%E0%B8%A7%E0%B8%9B%E0%B8%A3%E0%B8%B0%E0%B8%8A%E0%B8%B2%E0%B8%AA%E0%B8%B1%E0%B8%A1%E0%B8%9E%E0%B8%B1%E0%B8%99%E0%B8%98%E0%B9%8C%E0%B8%AA%E0%B8%B1%E0%B8%A1%E0%B8%A1%E0%B8%99%E0%B8%B2%E0%B8%A7%E0%B8%B4%E0%B8%8A%E0%B8%B2%E0%B8%81%E0%B8%B2%E0%B8%A3%E0%B8%A3%E0%B8%B1%E0%B8%90.pdf.aspx

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