National Action Plan on Business and Human Rights: Hope or a Blank Page?

 

Conflicts between stakeholders and local communities adversely affected by large-scale development projects are long-standing, and the communities always lose the battle. “Community rights” were once guaranteed in the 1997 Constitution, but were curtailed in subsequent Constitutions. This article will discuss a new international instrument, the National Action Plan on Business and Human Rights, which will provide measures for businesses and governments to prevent and remedy adverse impacts on the environment and the community. The plan is currently being developed. 

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Government siding with big businesses, silencing protesters

Sirisak Saduak, an advisor for Lam Sebai's Water Conservation Group

A paper on the human rights situation in Thailand between 2014-2015, published by the National Human Rights Commission of Thailand (NHRCT), reported 170 alleged community rights violations related to natural resource management. Most of these linked to private companies, mining companies, the energy industry, factories, state enterprises, and large-scale development projects by the government.

(Note that there were 87 alleged violations in 2014, and 83 alleged violations in 2015. Although NHRCT reports contained a section on community rights violations related to natural resources concerning the period prior to 2014, and the period between 2016 and 2017, they did not provide data on the number of alleged violations).

Transportation of APICO Company's Petroleum Drilling Equipments under protection of one whole police unit. 

Business-related disputes and human rights violations have been around for decades, even during periods of democratically-elected governments. However, violations of community tights have worsened since the National Council for Peace and Order (NCPO) took control of the country in the 2014 military coup. In many alleged violations, the military government has been either a party to disputes or been found to be the perpetrator.

NCPO-era Special Law   

Following the military coup in 2014, the military junta issued several NCPO Orders and NCPO Chief Orders (by virtue of Section 44, the 2014 Interim Constitution; and by virtue of Section 265, the 6 April 2017 Constitution) which impact negatively on community rights.

20 years later, community rights disappeared from the Constitution

Community rights is a relative new concept in Thailand, borne out of Sections 46, 56, and 59 of the 1997 Constitution. The Constitution guaranteed the rights of an individual to participate in the preservation and management of natural resources and the environment in a balanced and sustainable manner. It contained provisions that require a project or an activity that may impact negatively upon the environment to conduct an environmental impact assessment. The Constitution also guaranteed the right to sue the state over projects harmful to the environment. Additionally enshrined were the right to access a public hearing, and the right to public information from state agencies concerning projects that may negatively impact upon the environment, health and quality of life. The Constitution aimed to create accountability through a check-and-balance system with the formation of numerous independent agencies. The 2007 Constitution still guaranteed community rights in Sections 57, 66 and 67.

However, the draft 2017 Constitution, with Meechai Ruchupan as the head of the Constitution Drafting Committee appointed under military rule, contained provisions that could further curtail people’s rights. The draft Constitution was met with heavy criticism from civil society in the run-up to the August 2016 referendum. Despite changes made to the draft, iLaw claimed that some key components were absent in the Constitution, namely: 1) the right of a person to participate in the protection, promotion, and conservation of the environment for their livelihood; 2) the right of a person to express his or her opinion concerning state projects; 3) independent agencies protecting the environment.      

In conclusion, community rights, once guaranteed in the 1997 Constitution, were curtailed in the new Constitution. The people and community now have only the right to lodge a complaint.

Lessons learnt from human rights violations in three communities

The northeast region of Thailand has seen many disputes between the local community and development projects. The fight against a gold mine operated by Tungkum Ltd. has stood out. On 13 December 2018, Loei Provincial Court ordered the gold-mining firm to remedy environmental damage in areas around mining zones, and compensate 149 local families who were affected by mining operations. Villagers claimed that mining operations had harmed their health and affected their livelihoods, and damaged their natural food and water sources.

But there are many more development projects in violation of human rights and community rights, even in the absence of visible damage to the environment and the health of locals. Lessons learnt from 3 battles between local communities and such projects, ranging from early stages to finished, may be able to shed light on how disputes begin.    

Have not been informed and not given the opportunity to have a say

Samai Kodkeow

Samai Kodkeow, a member of Say Bai River Conservation Network in Chiang Peng sub-district, Pa Tiew district, Yasothon province, resides within a 5-kilometre radius of a sugar refinery and a biomass power-plant construction project proposed by a company owned by Mitr Phol Group. Samai claimed that in 2015 brokers came to the village and purchased land. They did not inform the locals of what the land would be used for. Meanwhile, local government offices did not inform them of the project either. Locals were only made aware of the project a year later, when they saw a poster inviting the community to attend a public consultation. Those who opposed the project organized themselves into Say Bai River Conservation Network.   

A public consultation (‘village civil society’, in the words of Samai) was supposed to be carried out before the project operator could obtain a permit to operate an industrial site in close proximity to a community. Samai stated that the locals were supposed to have been informed of the impacts of the project. They had wanted to know about the steps taken to prevent damages to the environment, health and quality of life, including specific measures to remedy damages. Before the operator obtained a permit, the project should have received informed consent from the local community.

None of this ever happened, however. Instead, the company invited locals to attend a “public hearing” in the form of a Chinese banquet. Attendees were given a t-shirt and a bag of sugar as a souvenir. A stage was set up to announce the benefits of the sugar refinery and the biomass power plant. The list of local attendees was used in the project’s environmental impact assessment.

Another dispute involved a bio-industrial estate proposed to be built in Ban Phai district, Khon Kaen province in 2018, by Mite Phol Co., Ltd. The government has approved a 133 billion-baht investment in bio-economy. The project will be piloted in three major zones, namely: 1) the Eastern Economic Corridor (EEC), 2) two provinces in the lower Northern region (Nakhonsawan and Kamphaeng Phet), 3) the Northeast region (Khon Kaen).    

The Khaeng Lawa Conservation and Rehabilitation Network claimed that brokers began purchasing land from local farmers in Muang Pia sub-district, Ban Phai district, Khon Kaen province in mid-2017. By the end of the year, over 2,000 rai of land had been purchased. It was not until the beginning of 2018 that they found out about the 4,000-rai bio-industrial estate.  

The Khaeng Lawa Conservation and Rehabilitation Network submitted a letter to the provincial governor, the Ministry of Natural Resources and Environment and the provincial industry office to enquire about the project. No government agencies were willing to disclose information, claiming that Mitr Phol had yet to submit a written proposal and that they themselves were only aware of the cabinet resolution. They said that the company would inform the local community directly when they were ready.

Thienchai Sunthong, chairperson of the cultural council in Muang Pia sub-district, Ban Phai district, Khon Kaen province, said that local people were given different answers when they asked the brokers why they wanted to purchase the land. Some brokers said the land would be used to grow sugar cane, while others claimed the land would be used to build a factory, but all declined to elaborate. Local administrative officers failed to inform the local community, even though some of these very officials were seen accompanying the brokers into the village. 

It was expected that Mitr Phol would hold a public consultation in March 2019 to discuss the scope and approach of a health and environmental impact assessment (Kor.1) for a sugar refinery and biomass power plant (expected to be part of the bio-industrial estate). Local people who opposed the project organized themselves into a group called “Hug Ban Kerd.” The group teamed up with Khaeng Lawa Conservation and Rehabilitation Network, and Pa Kok Conservation Group, to submit a letter to the Ban Phai district chief on 24 January 2019 requesting that Mitr Phol delay construction until local people were better informed. They requested that relevant government agencies came to meet local people and share all the facts.

Another dispute involved an oil drilling project in two provinces in the Northeast region (Kalasin and Khon Kaen), in a particularly controversial area referred to as ‘L27243’of Dong Moon-B petroleum field (Dong Moon 5) in Kalasin.


Yuth Pandee

Yuth Pandee, member of Na Moon-Doon Sat Conservation Group, said that the government granted a petroleum concession in the area to Apico (Korat) Ltd., an oil and gas exploration company, in 25 September 2003. After that, the villagers did not hear of any development until the environment impact assessment (EIA) was approved on 16 May 2014. Yuth claimed that during the EIA process, the company held two “public hearings”— occasions attended only by members of the sub-district administrative offices, sub-district chiefs and village heads.   

As locals became aware of the project, many people opposed, forcing the company to hold another public hearing as part of the EIA process. However, the public hearing was accompanied by over 200 police and army officers. The participants were screened before being allowed in. Whenever someone stood up to voice their concerns or discuss the impacts on the community, law enforcement officials would approach them.

In February 2015, the company began to transport drilling equipment into the area. Many local people came out to protest, but were shut down by law enforcement under the country’s martial law. Those who opposed the project were threatened. Eventually the locals lost the fight. The company began the drilling work and recently finished the exploration phase. The company is now considering building a natural gas processing plant and gas pipeline.

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As previously stated, the military government has approved 133 billion baht in investment in bio-economy, which will be piloted in three major zones, namely the Eastern Economic Corridor (EEC) (9,740 million baht), two provinces in lower Northern Thailand (Nakhonsawan and Kamphaeng Pet) (51,000 million baht), and another province in the Northeast region (Khon Kaen) (35,030 million baht). On 17 July 2018, the cabinet approved the bio-industry development plan (2018-2027) submitted by the Ministry of Industry, with the goal of Thailand becoming the “Bio-hub of ASEAN” leading the region in bio-industry, and paving the way for amending legal frameworks to support the industry.

Following cabinet approval, a new law was drafted to allow sugar to be used for the production of other products, and to promote the expansion of sugar cane plantations. The law would also allow a bio-plant to be constructed within a 50 km radius of other industrial plants if given consent by other plant operators. The government is also in the process of adding the biochemical industry into its factory classification, in order to differentiate the biochemical industry from the chemical industry. The Department of Public Works and Town amd Country Planning is in the process of amending zoning policy to support the biochemical industry.     

In 2015, the Office of Cane and Sugar Board granted new permits to 6 operators to allow the construction, relocation or expansion of the production of sugar refineries. Combined with existing refineries approved under the cabinet resolution in 2011, there will be 29 new sugar refineries. Each one of the newly approved refinery projects will be accompanied by a biomass power plant.

National Action Plan on Business and Human Rights
Thailand is currently developing a National Action Plan on Business and Human Rights (NAP). The process began in 2016. The draft is being prepared by a NAP National Committee, overseen by the Rights and Liberties Protection Department, Ministry of Justice. The Plan would set out a range of policy reforms to protect human rights, and to enhance protections for those harmed by business activities.
 
Thailand’s commitment to developing a National Action Plan on Business and Human Rights originated from the Human Rights Council’s Universal Periodic Review (UPR) held in Geneva Switzerland, 11 May 2016. After the review session on Thailand, the Thai government received 249 recommendations. The government immediately accepted 189 recommendations, one of which was to develop, enact, and implement a National Action Plan on Business and Human Rights, in line with the United Nations Guiding Principles on Business and Human Rights. This particular recommendation was from Sweden.
     

The Thai military government had intended to publish the Plan by 2018. However, at present (February 2019), the Plan is still being developed. The drafting process, which began in 2017, is overseen by a NAP National Committee. The Committee comprises representatives of Government agencies, state enterprises and businesses, but only one representative from civil society.

Global Compact Network Thailand

Meanwhile, Suphachai Chearavanont, chairman and CEO of Charoen Pokaphand (CP), announced that his corporation, along with other CP companies, had joined other leaders in the Thai private sector to form a collaborative network, Global Compact Network Thailand, working together to commit to operating their businesses responsibly in accordance with human rights principles. Suphachai became the president of Global Compact Network Thailand.

On 31 May 2017, Global Compact Network Thailand, together with the National Human Rights Commission Thailand, Ministries of Justice, Foreign Affairs and Commerce, as well as the Federation of Thai Industries, Thai Bankers Association, and Thai Chamber of Commerce, signed a “Memorandum of Cooperation to implement the United Nations Guiding Principles on Business and Human Rights in Thailand”. Prime Minister General Prayuth Chan-o-cha presided over the signing of the Memorandum.

Global Compact Network Thailand’s founding members is comprised of 15 leading Thai corporations, including Bangchak Corporation Public Co., Ltd., CP All Public Co., Ltd., Charoen Pokphand Foods Public Co., Ltd., Charoen Pokphand Group Co., Ltd., IRPC Public Co., Ltd., Mitr Phol Corporation Co., Ltd., Pinnacle Hotels and Resorts Co., Ltd., Pranda Jewelry Public Co., Ltd., Print City Co., Ltd., PTT Public Co., Ltd., PTT Exploration and Production Public Co., Ltd., PTT Global Chemical Public Co., Ltd., Thai Oil Public Co., Ltd., Thai Union Group Public Co., Ltd., and True Corporation Public Co., Ltd.

First round: civil society concerned as their inputs were not incorporated into the draft National Action Plan on Business and Human Rights (NAP)  

After one and a half years of the NAP drafting process, the Rights and Liberties Protection Department presented the first draft to a press conference hosted by Manushya Foundation on 23 August 2018. Between January 2017 and March 2018, the Foundation and the Thai Business & Human Rights Network held consultations with the government.

However, several civil society organizations (CSOs) expressed their concerns as their inputs have been left out of the draft. CSOs were concerned that information was not shared transparently in the process of consultations as they were never informed of the government’s limitations, and were not updated on the inputs from the private sector.   

Sor. Rattanamanee Ponkla, coordinator of the Community Resource Centre Foundation, said that the first draft of the NAP merely laid out the principles of the NAP, but did not elaborate on its implementation. On 5 September 2018, the Community Resource Centre Foundation presented their recommendations to the Rights and Liberties Protection Department at a press conference. The Foundation later contacted the Department to follow up on their recommendations, but did not receive confirmation on whether or not their inputs would be incorporated into the draft. The Department also held consultations with relevant government agencies, but failed to update the Foundation on what was discussed during those consultations.

“At the UN Forum on Business and Human Rights in Geneva (26-28 November 2018), the new director-general of the Rights and Liberties Protection Department (Som Promros) was invited to give the opening address on 26 November. He claimed that Thailand was preparing to propose the draft National Action Plan to the cabinet for approval and endorsement by the end of the year. I was shocked to hear this, since I had not seen the final draft yet,” said Sor. Rattanamanee.

Sor. Rattanamanee elaborated that the recommendations they presented to the Rights and Liberties Protection Department included the following key points: 1) the legal framework relevant to business operation and development projects needs reform; 2) public hearings as part of the EIA process must be taken seriously, and not just be a formality; 3) Social Impact Assessment should be conducted.

“Our recommendations focused on the decision-making process, participatory process and public consultations prior to the approval of projects that may violate human rights, particularly projects where the government is one of the stakeholders,” said Sor. Rattanamanee.   

On 19 December 2018, the Community Resource Centre Foundation, along with representatives from 35 CSOs, conducted a workshop to monitor the NAP drafting process. The Rights and Liberties Protection Department sent a representative, Nareelak Paechaiyapum, director of the International Human Rights Division, to attend the event and present the latest draft. According to Nareelak, the National Committee had held consultations with the public and private sectors, and was planning on having the draft ready by the end of December 2018. The Committee intended to publish the draft on their website for public comment for one month. After collecting and incorporating inputs from the public, the final draft would be presented to the Office of the National Economic and Social Development Council, to be subsequently proposed to the cabinet. 

During this workshop, the Department presented the latest version of the NAP to CSOs for review. Sor. Rattanamanee said this was the first time the draft was shared with them after the CSOs submitted their recommendations in September 2018. As it turned out, although some inputs had been incorporated into the draft, several key ideas had beenleft out.

Sor. Rattanamanee expressed her concerns over the content in the final draft and the implementation process. For example, the draft did not mention penalties for negligence.

Sor. Rattanamanee still believes that the public and private sectors would benefit from the NAP as it would help to minimize potential stakeholder conflict.

Second round: big words, empty promises

On 15 February 2019, the Rights and Liberties Protection Department published the latest version of the NAP on their website for public comment. The latest draft focused on 5 key priority issues, namely: 1) labour, 2) community, land, environment and natural resources, 3) human rights defenders, 4) cross border investment and multinational enterprises and 5) implementation.   

Submit your comments on the draft here.

Within the “community, land, environment and natural resources” component, the draft mentioned a plan to protect and defend human rights, as well as a plan to remedy human rights violations. It specified the issues to be reviewed, responsible agencies, timeframes and indicators. However, it failed to identify any goals. Moreover, the timeframe for each review could take up to 5 years (2019-2023).

For example, a review of the existing legal framework and how it adversely affects community rights was theoretically meant to be a participatory process. The agencies responsible for the review were the Ministry of Agriculture and Cooperatives, Ministry of Natural Resources and Environment, Ministry of Interior and Ministry of Industry. The timeframe for this review took a total of 5 years. The indicators were the number of laws relevant to community participation having been reviewed.

On the same day that the draft was published on the Department’s website, the Community Resource Centre Foundation held a meeting with CSOs and community organizations to discuss the latest version of the NAP. The meeting identified 4 key components previously proposed by CSOs that were absent in the draft:

Labour

The draft did not mention when Thailand will ratify the ILO Convention on Freedom of Association and Protection of the Right to Organise (No. 87), the ILO Convention on the Right to Organise and Collective Bargaining (No. 98), and the ILO Convention on Minimum Wage Fixing (No. 131). It also fails to define realistic measures to remedy adverse impacts on migrant workers.

Land, environment and natural resources

The draft failed to mention when certain NCPO Orders would be lifted, particularly the orders that restrict freedom of expression, and those that can cause damage to land, environment and natural resources (such as by granting exemptions from zoning laws). The draft did not propose a social impact assessment to be included in EIA and EHIA processes. The draft did not mention penalties for companies that provide false and misleading information. Projects are allowed to obtain a permit without putting in place remedy measures.

Human rights defenders

The draft failed to mention measures to defend human rights defenders from SLAPP (a strategic lawsuit against public participation). It did not mention passing an Anti-SLAPP law. It did not propose how to improve the current “Justice Fund” and ensure it is accessible for all.

Cross-border investment and multinational enterprises

The draft did not propose a plan to reform the legal framework in order to ensure that companies set up a fund to prevent and remedy individuals adversely affected by Thai businesses’ offshore investment. It did not mention the preparation of a national body to process cases of cross-border human rights violation such as the Organization for Economic Co-operation and Development (OECD).

Thailand has made remarkable progress in economic development, but the lack of community participation in development decision-making processes often leads to dispute and confrontation between the local community and other stakeholders. In many cases, business activities can have adverse impacts on health, livelihood and the environment.

The National Action Plan on Business and Human Rights has the potential be an effective instrument in protecting the local community against adverse corporate human rights impacts and in providing effective access to remedy. However, the drafting process so far lacks key inputs from civil society. The Plan needs to be developed through inclusive and transparent processes, where all stakeholders need to be allowed to participate in its development, with their views genuinely taken into account.


The author would like to thank Khun Nattaporn Artharn for contacting the sources and sharing the information.