Transboundary Investments: Borderless Impacts and Extraterritorial Obligation and Governance

Reclaiming Safe Space and Restoring Democracy in Southeast Asia” was a key theme of the 18th ASEAN Civil Society Conference/ASEAN Peoples’ Forum (ACSC/APF) 2023, held at Atma Jaya University, Jakarta, Indonesia, from 1 to 3 September 2023, where more than 800 participants gathered to discuss and share experiences on various key topics, including 1) Peace and Human Security, 2) Alternative Regionalism, 3) Human Rights and Safe Space for Marginalized Groups, 4) Climate and Environmental Justice, 5) Integrated Approaches to Socio-Economic Justice and 6) Democracy and Anti-Authoritarianism.

SEM under the ETOs Watch Coalition and our friends from Cambodia and Myanmar organized a workshop on “Transboundary Investments: Borderless Impacts and Extraterritorial Obligation and Governance” under the Convergence Space 5: Integrated Approaches to Socio-Economic Justice with the aim of sharing the understanding of transboundary investments and their impacts on human rights, local communities and the environment, etc., the progress in monitoring transboundary investments, and the best practices and challenges of people’s movements to advocate for good governance mechanisms to ensure human rights protection, including the establishment of liability mechanisms for companies or state-owned enterprises at the ASEAN level.

The important key message from the workshop was;

Transboundary investments, whether in the form of governmental or private sector development projects, are increasing, particularly in ASEAN countries, which are rich in natural resources but lack effective mechanisms and rule of law to ensure the protection of the community, the environment, and human rights.

Most of the cross-border investment flows into industries such as finance, manufacturing, infrastructure, and resource extraction. These industries include the construction of gas pipelines, coal-based power plants, mines, dams, deep-sea ports, special economic zones, and expansive plantation concessions. These investments have significant impacts on both host and destination countries. In particular, they have negative impacts on human rights, community rights, the economy, society, and the environment.

For example, some of the hydropower dams on the Mekong River are invested by Thai companies, receive loans from Thai banks, and export electricity to Thailand, but the impacts extend to all people living along the Mekong River, especially the Laotian population, who are forced to relocate from the project site without fair compensation. Similarly, the Cambodian government granted land concessions to Thai companies for sugarcane plantations, which adversely affected at least 200 families. This case has been brought to both the UK and Thai courts, with the intention of generating more pressure from the international community. It has taken 17 years for the affected people to receive their compensation. And the latest serious case is occurring in Myanmar, where the Thai energy corporation PTT group remains a major financier, providing revenue to the Myanmar Oil and Gas Enterprise (MOGE) amounting to as much as $1.3 billion or nearly half of Myanmar’s military budget. At the same time, Singapore, another member of ASEAN, is also the third-largest country whose companies supply armaments and weapons to the Myanmar military. It is evident that the junta in Myanmar employs funds and weapons to perpetrate war crimes and crimes against humanity against the people of Myanmar.

According to the abovementioned situation and crisis, the workshop came up with 5 recommendations that urgently need the ASEAN states and private sectors to take responsibility as follows

The ASEAN countries have faced common serious problems due to transboundary investment that impacts communities. While there are legal and non-legal mechanisms in place to handle cases, these are not sufficient. Collaborating with allies to continually monitor and improve laws and standards is necessary to ensure the protection of communities, the environment, and human rights. This includes establishing good governance and transboundary jurisdiction among the ASEAN countries.

1. All the ASEAN countries must ensure the private sectors, state-own enterprises, and financiers, especially Thai’s PTT group and Singaporean companies stop the Myanmar military from accessing the funds and banks, stop financing direct and indirect to the Myanmar military, including all the arms trading and transferring to Myanmar.

2. ASEAN needs to establish a framework for a Binding Treaty on Business and Human Rights, including establishing an independent ASEAN human rights and environmental court to ensure that people can access justice and protection.

3. ASEAN needs to endorse a transboundary EIA and Human Rights Due Diligence mechanism, improve the law and regulations on the Bilateral Investment Treaties and Environment Act, and establish a transboundary jurisdiction to apply for all the ASEAN countries within and beyond the territories where its people operate businesses or projects with human rights violation in other countries.

4. The National Human Rights Commission (NHRC) in ASEAN could accept the case and process the investigation of human rights violations within countries and cross-borders.

5. Thailand and ASEAN countries should sign a membership of the Organisation for Economic Co-operation and Development (OECD) to apply the OECD guideline for responsible business conduct and state-based grievance mechanism to resolve the conflict regarding on the alleged and misconduct in the value chain.