ASEAN National Human Rights Institutions’ Examination Task: The Investigation of Cross-border Investment and its Impacts on Community Rights; Human Rights and Environment
In many of our previous articles, we have presented and pointed out the deficiencies in the investment governance of Thai investors and state enterprises investing overseas especially in CLMV countries. Human rights; community rights and environment have been increasingly violated through the implementation of large-scale projects in energy sector; mining; monoculture concessionary or manufacturing industry. In many cases, the National Human Rights Commission of Thailand (NHRCT) had received complaints and already investigated as well as proposed some policy recommendations to the Cabinet.
It was shown that the NHRCT has paid as much attention to monitor cross-border investments related to human rights abuses particularly in business part, as those happening within the country. This can be called the progress of monitoring the human rights violations caused by business sectors and state enterprises in Thailand. But we still did not know if our neighboring countries with national human rights commissions or institutions are concerned; worried and interested in how the issue of cross-border investments causing internal and external impacts.
This article is going to provide some efforts of the national human rights commission or institution in ASEAN countries include Myanmar; Malaysia; Philippines and Indonesia focusing on business and human rights issues in cross-border investment that affect local natural resources; environment; community and human rights.
After the opening up of the country, Myanmar’s political atmosphere is more relaxing for welcoming foreign investment. In 2012, foreign investment in the energy and manufacturing industries have increased with environmental and human rights impacts in such investment areas. The Myanmar National Human Rights Commission (MNHRC) then played an important role in examining the inbound investments that affected human rights.
The complaint from people to the MNHRC is about the large-scale oil palm plantation project by Myanmar-Malaysia joint venture company causing environmental damages and human rights abuses in the project area. The investigation of such human rights violation, however, the MNHRC has been forwarded the complaint from Myanmar civil society through the Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM). After the MNHRC’s investigation on this case, they have made comments and recommendations to the President in order that the government; ministries and other relevant agencies could continuously solve the problems as well as existing impacts.
The SUHAKAM plays the main role in examining human rights abuses in Malaysia where there has been an important case that such human rights institution has already received and investigated complaints. The SUHAKAM focuses on Malaysian investors’ outbound investment in ASEAN countries such as the large-scale oil palm plantation project in Myanmar and the Don Sahong hydropower project in southern Lao PDR. In relation to its investigation of the oil palm plantation in Myanmar, both of Myanmar and Malaysian human rights institutions have conducted a good joint investigation. Each of them was responsible for the internal audit, that is to say, the SUHAKAM examined the human rights abuse of the project in which Malaysian company has invested while the MNHRC has responded with a good cooperation to the abuse case forwarded from the SUHAKAM.
But in carrying out the investigation of the Don Sahong hydropower project, the SUHAKAM has faced with a critical problem in coordinating the inspection with the Laotian Government. As Lao PDR had no human rights organization or institution of its own, investigating within the project area was therefore quite difficult. Nonetheless, there has been the investigation and request of information from project investor, Mega First Corporation Berhad, which is Malaysian.
Despite the investigation of each project and its different working obstacles, it can be seen that the SUHAKAM has the restrictions on searching and examining the facts by itself in the project area in consequence of the law on establishment of the SUHAKAM. Such law restricted its authority and duty merely within Malaysian territory.
The Philippines is one of the countries having noticeable operation and perspective on business and human rights topic. The Commission of Human Right of the Philippines (CHRP) is interested in Climate Change issue since the country is unavoidably affected by such condition. Since its geography and atmospheric condition must repeatedly encounter Climate Change with a very high-risk of impact. The CHRP along with other related organizations have linked the issue of human rights and environmental violation, which means a huge change that goes beyond borders between countries but the world crisis. In 2015, the Philippines has faced with a tremendous natural disaster like Typhoon Hai Yan which killed more than 6,000 people. As a result, the Philippine Government found it essential to attend the Climate Vulnerable Forum (CVF), a collaboration between countries affected by Climate Change, to ensure that member states would participate in overall Climate Change problem-solving.
Dealing with such problem, the CHRP has used a public inquiry process regarding Climate Change in 2018. There are several challenges such as lacking of scientific knowledge; limited jurisdiction to legally proceed the case of Climate Change and its mitigation of impacts as well as limited resources to do so for seeking facts especially in terms of emissions by large-scale energy industry. The example of greenhouse gas emission is from mining industry which globally releases pollution.
Indonesian National Commission on Human Rights (Kommas HAM) is one of the countries which is very impressive in terms of its authority and duty. Indonesian Government is legally required by the Constitution to protect human rights of the people within its territory. In Article 5, it is stated that the court has jurisdiction to accept complaints and bring to a trial of the cases that the Indonesian person has violated human rights outside the country. However, the cases must be related to international laws ratified by Indonesia, for instance, the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All forms of Radical Discrimination (CERD). In other words, Indonesian law allows and supports the Kommas HAM to do its investigating task both inside and outside the country. It can be said that the Kommas HAM is a very proactive and progressive organization. Its working issues regarding business and human rights as well as environment are diverse, for example, human rights violation on Benjina Island (part of Maluku Islands) caused by oversea entrepreneur setting up its production base over the land of indigenous and traditional tribes including migrant workers in fishery. Several kinds of human rights have been abused: right to life; right to marry; freedom from slavery; freedom of religion; freedom from torture or abuse; right to welfare and rights of the child. During 2015-2018, the Kommas HAM has nevertheless received 57 complaints from people, in most cases Indonesian workers were abused by the company or business sectors in host country where they worked. Some of them did not get paid; some was assaulted and some died suddenly without cause, these are human rights problems on which the Kommas HAM has highly focused.
In relation to the business causing environmental impacts, the Kommas HAM has also paid attention to and received complaints from people such as the cross-border haze from illegal burning of the forest in Sumatra and Borneo Island. This situation produced greenhouse gases such as carbon dioxide (CO2), particularly during 2013-2015 causing more smoke as a result. The main problem of this case is the corruption in the business process as well as law enforcement leading to the lack of good governance in terms of investment behavior. The consequences are economic; health and environmental damages. The Kommas HAM has already examined this case and the problem was solved by seriously enforcing Plantation Law with the involved investment groups.
As abovementioned, we can see that working nature and concerned issues especially regarding human rights; community rights, as well as environment violation of the national human rights institution in each country, are both connected and unconnected. In terms of investigating the scope of work, it seems that the Kommas HAM and the CHRP are the most progressive. They can investigate both internal and external human rights abuses as prescribed by their laws, for example, by their obligations under international laws. Their examining patterns are also advanced and interesting such as using of public inquiry in cross-border investment examination. Most of the countries give priority to investigating human rights violations by business sector invested in their countries, except for Malaysia as it additionally pays attention to Malaysian’s outbound investment. The large-scale oil palm plantation project in southern Myanmar and the Don Sahong hydropower project in southern Lao PDR can be good examples. However, such an investigation has some limitations in seeking facts in project areas of host countries. It is more difficult when the host countries do not have their own national human rights institutions since the cross-border collaboration in examining human rights violations becomes more challenging.
 The content appeared in this article derives from the conclusion of the workshop “Human Rights Violations and its Cross-border Effect: Addressing the protection gap through extraterritorial obligations – ETOs” held on August 16-17, 2018 at Novotel Bangkok Ploenchit Sukhumvit and the 8th Regional Conference on Human Rights and Business in South East Asia held on September 6-10, 2018 at Chiangkhong Teak Garden Riverfront Hotel.