Ensuring U.S. Businesses Respect Human Rights in Myanmar (Burma)

Transcription

1 Ensuring U.S. Businesses Respect Human Rights in Myanmar (Burma) SCOPE In July 2012, Secretary of State Clinton announced the suspension of some longstanding economic sanctions on Myanmar (Burma). This decision enables U.S. businesses to invest and enter into new business arrangements in the country for the first time in 20 years. In this context, Amnesty International USA would like to emphasize the responsibility of business enterprises, wherever they operate, to respect human rights. Amnesty International USA has drawn together guidance (below), based on international standards and best practices, to highlight some of the key measures that businesses must take to comply with their responsibility to respect human rights. These international standards include the United Nations Guiding Principles on Business and Human Rights (the so-called Ruggie Principles), adopted by the UN Human Rights Council in March This guidance is a starting place, not the final word, for businesses to comply with their responsibilities. This short paper discusses the current situation in Myanmar, including findings of Amnesty researchers who visited Myanmar in May 2012: the first formal human rights field assessment conducted by Amnesty International inside the country in nearly a decade. We have also attached some recommendations for how the U.S. government can better ensure corporate human rights accountability, above and beyond enforcing existing laws, including the Foreign Corrupt Practices Act and the relevant

2 2 transparency rules adopted by the U.S. Securities and Exchange Commission. The U.S. government should put in place and enforce an adequate regulatory framework to ensure U.S. business enterprises respect human rights wherever in the world they operate. Overview: Progress, but challenges remain Since he took office on March 30, 2011, President Thein Sein has spearheaded a series of significant reforms, releasing hundreds of political prisoners including prisoners of conscience, allowing dissidents overseas to return home, relaxing some media restrictions, committing to eliminate forced labor by 2015, and signing a United Nations plan pledging to eliminate the use of child soldiers by The national legislature enacted a new Labor Dispute Settlement Law last March that gives workers the right to strike and also set a good precedent through the inclusion of labor representatives in the drafting process. Despite all these positive developments, serious human rights concerns remain. Even after the most recent prisoner release announced on Tuesday, many prisoners of conscience remain in jail, imprisoned for staging peaceful political activities, for their criticism of government policies, or because of their political beliefs or ethnic origin or other status. The rule of law remains a major concern, and most prisoners of conscience in Myanmar have been sentenced under laws that place the country well outside of international norms and standards on freedom of expression, peaceful assembly, and association. These and many other laws require reform to ensure consistency with international human rights standards. A key area of concern in this regard are new and draft land laws, which have been critiqued for offering very little protection to the human rights of rural and other communities who live and rely on the land. Reports have already emerged about land grabbing, including forced evictions in the context of new large-scale industrial, extractive and infrastructure projects.

3 3 Forced labor has also been a persistent and severe concern in Myanmar. There are indications of progress in addressing forced labor, including the government s collaboration with the International Labour Organization and its commitment to ending forced labor by But this commitment must be fully realized and implemented. A very large number of people have been internally displaced as a result of the internal armed conflicts in ethnic minority areas, particularly in the East and Northeast of the country. Despite two Presidential directives for the Myanmar Army to cease attacks and engage in only defensive actions, Amnesty International received reports in 2012 not only of large-scale troop movement to Kachin State, but recent incidents of torture, extrajudicial executions, and sexual violence. Amnesty International has also documented decades of systematic discrimination against many ethnic minorities, including the Rohingyas, who are denied citizenship, negatively affecting their rights to work, freedom of movement, health, and freedom of religion and belief. The formation of Myanmar s National Human Rights Commission is a positive step. However, it is concerning that the Commission lacks the competency to consider complaints relating to human rights abuses prior to its establishment and urgent measures are needed to ensure accountability and justice for victims. Similarly, President Thein Sein s initiative to set up a commission to investigate recent clashes between Buddhists and Muslims in Rakhine state may prove useful if concerns about its remit, credibility, and impartiality are addressed. These conditions cry out for enhanced due diligence by any U.S. businesses that are considering investments or business relationships. Based on such due diligence, businesses should reassess their potential or on-going operations, and adapt or refrain from aspects of their operations that could result in the breach of their human rights responsibilities. If business enterprises find that they cannot comply with the responsibility to respect human rights in certain sectors, or if their indirect involvement with other companies or the government compromises their adherence to best practices, they should refrain from entering into such relationships or businesses.

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5 5 Basic Guidance for Corporations Considering Business Opportunities in Myanmar (Burma) Overarching Responsibilities 1. Respect the human rights of those affected by your activities consistent with internationally recognized human rights, including rights contained in the core UN Human Rights treaties, UN Declarations such as the Universal Declaration of Human Rights, the UN Declaration on the Rights of Indigenous Peoples, International Labour Organization (ILO) Conventions and the ILO Declaration of Fundamental Principles and Rights at Work. This responsibility extends to the activities of other parties with which the enterprise has a relationship (including business partners, contractors and subcontractors, buyers and suppliers). 2. Make an express policy commitment to respect human rights, which should be integrated into the enterprise s decision-making, management and operational systems, as well as business relationships. 3. Avoid measures that either directly or indirectly undermine the ability of the state to protect human rights; 4. Do not undermine existing legal guarantees or institutional mechanisms established to protect human rights or oppose measures to protect human rights. Businesses should not encourage, either at the international or national level, agreements, laws, policies or measures that would undermine the effective protection of human rights. 5. Avoid any activity that might result in complicity in human rights abuses committed by others. 6. Take prompt and comprehensive steps to address human rights abuses linked to products or services provided or acquired, and to avoid directly or indirectly benefiting from human rights abuses committed by others.

6 6 Due Diligence 1. Carry out effective due diligence in order to identify, prevent and address actual or potential adverse human rights impacts resulting from their own activities or those of other parties with which they have a relationship. For example, businesses should ensure that projects that they are involved in do not result in forced evictions or involve the use of forced labor. 2. Disclose and report publicly on the risks posed to human rights by activities of the enterprise or its partners, the results of human rights impact assessments and proposed measures to prevent, minimize and address adverse human rights impacts. 3. Ensure that any assessments and proposed measures to address adverse impacts pay particular attention to the differentiated impacts that business activities or projects may have on specific groups of people, such as Indigenous Peoples, minorities and children in conformity with relevant international standards. Businesses operating in conflict-affected areas should be aware of the human rights context and carry out due diligence to identify, prevent and address risks to human rights that are specific to these situations. Businesses should be especially vigilant of the need to avoid fueling on-going human rights abuses. 4. Ensure due regard to gender, differential impacts on men and women, and compliance with international standards on non-discrimination and equality. 5. Involve affected communities at each stage of the impact assessment process and consult them regarding prevention and mitigation measures. Ensure that the right of Indigenous Peoples to free, prior, and informed consent to company operations on their lands is fully respected. Transparency and remedies 1. Ensure regular and transparent communications and disclosure of information on human rights impacts, and effective engagement with, and participation of, affected communities.

7 7 2. In the event that human rights abuses do occur, businesses must take all necessary steps to assist victims to obtain an effective remedy. Businesses should refrain from taking any action to prevent or obstruct the ability of people affected by their operations to access courts or other judicial or administrative mechanisms to obtain an effective remedy. Call on the United States Government The U.S. Government s current requirement that businesses that invest more than $500,000 disclose information on their activities, including their policies and procedures with respect to human rights, workers rights, corruption and the environment, carries no punitive sanctions for violating those requirements. The U.S. Government should: Put in place and enforce an adequate regulatory framework to ensure U.S. business enterprises respect human rights wherever in the world they operate, which includes requirements to undertake human rights due diligence and to refrain from business operations or relationships which would lead to a breach of the company s responsibility to respect human rights. The government should impose sanctions if businesses fail to carry out such requirements. Require all companies to disclose non-financial information which is relevant to effective human rights due diligence process. Establishing effective avenues for redress within the U.S. for individuals whose human rights are abused as a consequence of breaches of corporate human rights obligations. Call for Capacity-Building The U.S. Government should support efforts, including those being undertaken by UN agencies, to build the capacity of the people of Myanmar themselves to revise their laws and build implementing institutions to ensure compliance with international human rights standards.