Protecting profits over people

Myanmar is in the process of formulating an investment law and a land use policy that when combined will lay the foundations of development for the country. As it stands, these proposed instruments could have an adverse impact on human rights, and in particular land rights. With these texts being shaped by international financial institutions and foreign governments, the concern is that these instruments will undemocratically privilege the “rights” of the powerful over the rights of those affected by their investments.

The draft investment law would replace the Foreign Investment Law (2012) and the Myanmar Citizen Investment Law (2013), and would provide the basis for investment in the country. There was no civil society input into the draft law developed by the World Bank Group’s International Finance Corporation (IFC). The draft law advances both foreign and domestic investors’ interests, protecting them as “rights”, but without any protective measures for the people of Myanmar.

The draft investment law would give investors the right to challenge new policies or laws in domestic courts and possibly in international arbitration. It would entitle them to full compensation if Myanmar government regulations impact their profits. International dispute resolution mechanisms potentially take important policy decisions out of the hands of elected governments and place them before an international arbitration panel. The concerns over the lack of human rights or social safeguards in this draft law are not idle fears: Investment protection can generate costly disputes – some arbitral awards run into the billions of dollars. In effect, investors’ interests become legally protected, while the people of Myanmar must rely on the underdeveloped national legal system that does not provide adequate access to justice.

There are a growing number of international examples where new laws and regulations passed by democratically elected governments to protect economic, social and cultural rights, such as for public health, have been challenged by foreign investors because they would decrease their profits. Myanmar lacks the legal and financial capacity to defend repeated challenges by deep-pocketed investors and may become unwilling or unable to pass stringent regulation to protect the human rights, including land rights, of the people of Myanmar.

The other new major development-related proposal is the draft National Land Use Policy (NLUP). The drafting process began as a follow-up to the 2012 land-related laws – the Farmland Law and the Vacant, Fallow and Virgin Lands Management Law – which were roundly criticised for denying land and resource rights to large segments of the population while allowing investors to legally acquire large land holdings from farmers.

In response, the draft NLUP has sought to streamline and harmonise land use management in the country on a more technically sound basis and, in some cases, to reassert the rights of more marginalised communities, especially upland cultivators relying on customary practices. Its approach to land use rights, however, is to enhance security for agribusiness investors at the expense of human rights and social justice. It refers to land use in purely economic, rather than social terms. Worryingly, like the draft investment law, the NLUP contains no reference to human rights or the terms social justice, redistribution, restitution or accountability, whereas the word “investment” appears a dozen times.

As with the process of adopting the 2012 land laws and the pending draft investment law, there was no input from civil society in the drafting of the NLUP, which was written behind closed doors by USAID. Only after the draft’s completion has the Myanmar government allowed for national consultations.

Instead of the year-long process recommended by those drafting the policy, these consultations have been reduced to just two weeks, with last-minute changes that have made it difficult for civil society to prepare for engagement. With the consultations under way, it remains unclear to what extent civil society can actually influence the content of the policy, particularly its core investment-friendly principles.

This is important because land rights disputes are one of the fundamental issues Myanmar faces. Nearly half of all submissions to the Myanmar National Human Rights Commission this year deal with land disputes. None of these have been resolved adequately. People whose rights are violated lack access to effective legal remedy. Instead of promoting social justice, these draft laws and policies focus on providing remedies for investors.

It’s also worth noting that any potential rights-based benefits within the proposed NLUP could be undercut by the dispute resolution mechanisms that are included in the draft investment law. For example, if the NLUP recognised upland ethnic farmers’ cultivation practices and land claims, investors would be entitled to prior consultation and to sue for damages, potentially including for the loss of future profits. The draft investment law and other investment treaties could undermine the positive aspects of the NLUP, rendering it a hollow document with nothing left but its investment-friendly core.

Myanmar has a responsibility to protect human rights and the environment while upholding social justice. Any new laws and policies should be congruent with international human rights law, good governance – such as the 2012 Voluntary Guidelines for Responsible Governance of Tenure of Land, Fisheries and Forests – and international best practices pertaining to indigenous peoples, like free, prior and informed consent. In particular, development policy should ensure effective, accessible remedy for the marginalised and victims of rights abuses.

The NLUP should first address the discrepancies between protecting vulnerable peoples’ land use rights and claims before creating an enabling investment environment. The draft investment law, meanwhile, must be opened for civil society consultation and debate. The results of both should ensure that the people of Myanmar are the primary beneficiaries of investment and economic development. If these mechanisms are not carefully formulated with wide-ranging input from all stakeholders, there is the dangerous potential that they will be seen as illegitimate and undemocratic, and may prove an obstacle to the progressive realisation of human rights and social justice.


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