FIDH POSITION PAPER

Recommendations concerning EU-Burma/Myanmar investments relations

Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3: Everyone has the right to life, liberty and security of person. Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5: No one shall be subjected to torture or to cruel,

December 2013 - e-pao.net

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Introduction-----------------------------------------------------------------------------------------------4 I. Human rights violations in Burma/Myanmar fueling non enabling environment for investments--------------------------------------------------------------------------------------------6 Ethnic conflicts and religious violence -------------------------------------------------------6 Widespread impunity ---------------------------------------------------------------------------7 Land evictions and land confiscation ---------------------------------------------------------7 Lack of good governance ----------------------------------------------------------------------8 Arbitrary detentions and restrictions on freedom of assembly ----------------------------8 Forced labour ------------------------------------------------------------------------------------8 Labour rights -------------------------------------------------------------------------------------9 II. Recommendations to the EU--------------------------------------------------------------------- 10 1. Preliminary reforms in Burma/Myanmar------------------------------------------------ 11 a. A roadmap for priority reforms------------------------------------------------------- 11 b. Technical/financial assistance and roadmap implementation monitoring------ 15 2. A Binding framework for EU companies investing in Burma/Myanmar------------ 15 3. Human rights impact assessment --------------------------------------------------------- 16 4. An agreement that efficiently protects and respects human rights ------------------- 17 Background documents------------------------------------------------------------------------------- 20

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Introduction
On July 2013, the Council of the European Union confirmed the EUs willingness to negotiate and conclude an investment agreement with Burma/Myanmar. Yet at this stage, FIDH and its member organisation Altsean-Burma, fear that should appropriate measures not be adopted such agreement would only perpetrate or aggravate existing human rights violations, putting European investors in high risk of complicity of these violations. While the EU has justifies the new chapter of the relations with Burma/Myanmar by the recent political and economic developments in the country, the reforms are selective, shallow, and often fail to comply with international standards. In addition, the implementation of reforms remains limited and inconsistent throughout the country. Investment projects in Burma/Myanmar have already been linked to violent repression of peaceful demonstrations and detentions of protestors and human rights defenders who denounced their impacts on local communities. They have also led to forced evictions and land confiscations. Without reforms and adequate guarantees, Foreign Direct Investments are likely to exacerbate human rights violations in the country. Already in September 2012, in his report to the UN General Assembly, the UN Special Rapporteur on the Human Right situation in Myanmar expressed concern, that given the expected wave of privatizations and the increase in foreign investment, along with accelerated economic development, there is likely to be increase in land confiscations, developmentinduced displacement and other violations of economic, social and cultural rights. The European Parliament, in its resolution of 23 May 2013 on reinstatement of Burma/ Myanmars access to generalised tariff preferences, warned that companies operating in fragile states and weak governance zones, such as Myanmar/Burma, face an increased risk of causing or contributing to human rights violations and that special measures are consequently necessary in order to avoid this risk. In this context, the strategy adopted by the EU seems to suffer from significant shortcomings. The comprehensive framework for the European Unions policy and support to Myanmar/ Burma endorsed by the Council of the EU in its conclusions of 22 July reveals that the EU is conscious of the magnitude of the task. It defines what reforms are needed and plans to support them by various means, including statements, dialogue, technical and financial support, trade preferences and investments. However, this strategy does not define the best interplay between those tools, nor does it integrate human rights in its investment and trade component. As a result, the document fails to adequately implement the EU strategic framework and action plan on human rights and democracy adopted in June 2012 and exposes the EU, its member states, its companies, and the people of Burma/Myanmar to major risks. Past experiences have shown how statements, development cooperation aid, and voluntary CSR initiatives used alone, without a use of the full range of instrument at is disposal and without the adoption of the needed safeguards, rules and incentive regarding trade and investment, have not led to an improvement of the human rights situation on the ground. The case of Bangladesh where thousands of workers in the supply chain of European businesses, have lost their lives highlight that improvements of human rights within the context of business operations cannot be achieved through voluntary CSR initiatives of business. In other situations, without having addressed the gravity of the situation properly, investments and trade preferences have
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exacerbated human rights violations. For instance, in Cambodia, investments in the sugar sector, have resulted in the loss of land and the denial of adequate standards of living, including access to food, health, and education for many rural communities. In addition farmers and human rights defenders have been subjected to arbitrary detention and even killings. This paper highlights the risks for investments to be linked to human rights violations given the situation in Burma/Myanmar (I). It calls on the EU to clearly define the best interplay between its various policy tools and to integrate human rights in its investment policy (II).

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I.  Human rights violations in Burma/Myanmar fueling non enabling environment for investments
Some of the most serious human rights violations in Burma/Myanmar have been traditionally linked to business activities in the country. The recent influx of foreign investment and the implementation of associated infrastructure and development projects have already had a negative impact on local communities, including land confiscation, loss of livelihoods, militarization, forced relocation, and environmental degradation. In addition, the country remains plagued by widespread corruption and impunity, which prevents the effective fulfilment of the rights of individuals and communities affected by business operations in Burma/Myanmar. Remedies for those whose rights have been violated are generally inadequate and/or ineffective. A weak legislative framework and a judiciary that is notoriously corrupt and that lacks independence from the executive branch characterize Burma/Myanmars current business environment. It is the responsibility of the EU to duly assess the situation and to take the necessary measures to ensure that human rights are duly protected and taken into account in its investment policy.

Ethnic conicts and religious violence

Since the collapse of a ceasefire group between the government of Burma/Myanmar and the Kachin Independence Army (KIA) in June 2011, the Tatmadaw (Burmas military) has conducted military offensives against the KIA in Kachin and Northern Shan States. Tatmadaw soldiers committed serious human rights violations, including the killing of civilians, arbitrary arrests, torture, rape of women, forced relocation, and the use of civilians as human shields. Burma/Myanmars military continues to commit other serious human rights violations across the country, including forced labour, the recruitment and use of child soldiers, land confiscation, and arbitrary taxation. During two waves of sectarian violence in June and October 2012 in Arakan/Rakhine State, Security forces failed to protect both Buddhist Rakhine and Muslim communities, including Rohingya. Authorities committed serious human rights violations, predominantly targeting Rohingya. The government denies citizenship to Rohingya in Arakan State and authorities continue to impose severe restrictions on their fundamental freedoms, including freedom of movement, freedom of religion, and freedom to marry. Between March and October, Buddhist mobs carried out anti-Muslim attacks in Mandalay,
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Pegu, and Rangoon Divisions and in Arakan, Shan, and Kachin States. Once again, authorities failed to prevent the violence and to take action against those who instigated the attacks. Unrest in Arakan State and military offensives in Kachin and Northern Shan States have resulted in the displacement of approximately 250,000 people. In Kachin State, the government has routinely frustrated the delivery of humanitarian aid to IDPs in area controlled by the Kachin Independence Army (KIA). In Arakan State, Rohingya IDPs - who represent the overwhelming majority of the 140,000 people displaced by unrest remain segregated in squalid camps. Humanitarian agencies have faced increasing threats and intimidation by members of the local Rakhine communities, which has hampered the delivery of aid to Muslim and Rohingya IDPs In addition, four aid workers have been arbitrarily detained in Buthidaung prison since mid-2012.

Widespread impunity
The country remains plagued by widespread corruption and impunity, which prevents the effective implementation of the rights of individuals and communities affected by business operations in Burma/Myanmar. Article 445 of the constitution grants members of the government of Burma/Myanmar blanket immunity for past, current, and future human rights violations. In Kachin and Northern Shan State, Tatmadaw soldiers continue to commit serious human rights violations against civilians.

Land evictions and land conscation

Farmers are being evicted from their land to make way for infrastructure and development projects. In many cases, they have been prosecuted on charges of trespassing for tending land that authorities had confiscated from them. The violations have already been documented by the UN Special Rapporteur on the human rights situation in Myanmar. In his two reports dated March 7 and September 25, 2012, the UN Special Rapporteur stated that he continued to receive reports of violations of land and housing rights, in particular regarding the impact of infrastructure projects, natural resource exploitation and associated land confiscations. He also said that Those who resist eviction face harassment or are arrested. New laws adopted by Parliament fail to protect the rights of land users in Burma/Myanmar. The Farmland Law legalizes land confiscation for a wide range of activities that the government claims to be of national interest. In addition, the law limits farmers access to courts by stipulating that newly-created agencies under the Ministry of Agriculture and Irrigation will have jurisdiction over land-related disputes. The Vacant, Fallow, and Virgin Land Management Law allows the government to label farmland as vacant, fallow and virgin land and to reallocate it to domestic and foreign investors for the development of industrial agricultural estates. Activists have warned that the law would result in increased land confiscation because very few farmers owned the official certificates to claim their land use rights.. Businessmen who have close ties to the government have already taken advantage of the current situation by registering land in their own names. On July 26, 2012, Parliament formed a commission tasked with investigating land confiscation cases across the country The commission has carried out fact-finding mission and received land confiscation complaints from farmers. However, the commissions recommendations have been so far ignored by the authorities, including the military.

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In this context, access to an effective remedy for business-related human rights abuses, one of the pillars of the UN Guiding Principles on Business and Human Rights (UNGPs), remains a significant challenge. While foreign investors may in good faith lease land for their projects, it will be challenging for them to confirm that such land has not been confiscated from people who have been denied access to legal remedy.

Lack of good governance

The practice of extortion and illegal taxation by the military remains widespread, particularly in ethnic-nationality areas. Lack of transparency as well as the absence of consultation with affected communities continues to be the norm for state-sponsored infrastructure and development projects.

Arbitrary detentions and restrictions on freedom of assembly

The Burma/Myanmar authorities continue to severely restrict the right to peaceful assembly. Authorities also target activists and human rights defenders who campaign against land confiscation and harmful infrastructure and development projects. The government has used the Peaceful Gathering and Demonstration Law, enacted in July 2012, to arrest and imprison peaceful protesters. Between July 2012 and October 2013, 29 peaceful protesters were sentenced to prison terms for demonstrating without obtaining the authorities prior permission. They included activists who protested against the China-backed Kyaukpyu-Kunming dual oil and gas pipeline; farmers who protested land confiscation; farmers and human rights defenders who demonstrated against the expansion of the Letpadaung copper mine in Sagaing Region. The government has also violently cracked down on farmers and human rights defenders on numerous occasions. In a case that captured international attention, government security forces used excessive force against farmers and activists who campaign against the expansion of the Letpadaung copper mine in Salingyi Township, Sagaing Region in November 2012. Police used white phosphorus grenades to disperse peaceful protesters camped near the mines site, injuring over 100 people, including Buddhist monks. In April 2013, police fired shots and used batons to disperse farmers who had begun to plough land that authorities had confiscated from them for the copper mines expansion. At least seven farmers were injured in the crackdown. In November 2013, police fired rubber bullets on local residents in order to prevent them from joining protestors camped near the Letpadaung copper mine. At least seven villagers were injured in the crackdown.

Forced labour
The widespread use of forced labour by authorities in Burma/Myanmar has often been linked to the implementation of infrastructure and development projects. In March 2012, the government of Burma/Myanmar and the International Labour Organisation (ILO) sign an agreement for the eradication of forced labour in the country by 2015. Despite this ambitious plan, forced labour cases, including the recruitment of child soldiers, continue to be reported, particularly in ethnic areas. As a result, it is of the utmost importance that safeguards are put in place to avoid that EU companies become complicit in forced labour practices.

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Labour rights
In October 2011, the Labour Organisation Law was enacted to allow the formation of trade unions. This is an important step forward. However, due to a poor implementation of the law, the right of workers to form and join trade unions has not been fully recognized by many employers and government officials. Numerous reports have already emerged of workers dismissed by their employers for organizing unions. In addition, Burma/Myanmar has not yet ratified most of the fundamental ILO Conventions. In this context, foreign companies that conduct social auditing regarding their supply chain, including Burmese factories, may find it difficult to verify whether workers rights are respected. Inadequate legislation coupled with poor implementation of existing laws also resulted in poor labour conditions. Excessive working hours, low wages, poor health, safety, and social conditions, child labour, and arbitrary penalties on workers are prevalent in many factories.

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II.  Recommendations to the EU

The EU strategic framework and action plan on human rights and democracy adopted by the Council in June 2012 expresses the EUs commitment to integrate the promotion of human rights in all areas of its external action without exception. It also pledges to make an effective use of EU external policy instruments in order to ensure the best articulation between dialogue, targeted support, incentives and restrictive measures. In order to frame its policies in a manner consistent with its strategic framework, the EU has then to conceive its policies in a strategic manner, avoiding the fact that investments exacerbate human rights violations, using the negotiation as an incentive to obtain the necessary safeguards and reforms, and supporting them through development cooperation. With regard to its investment policy vis--vis Burma/Myanmar, the EU has then to take into account that investments may have both positive and negative impacts on human rights. They may be facilitated or prevented because of the regulatory environment, its enforcement and the respect by the investors of domestic legislation, international standards and applicable guidelines. In its 16 April 2013 resolution, the European Parliament warned that foreign investments can be beneficial provided that: 1) the investment policy framework is connected to an overall development strategy; 2) rules are set up in order to ensure the respect, fulfilment and protection of human rights and to ensure the rule of law, transparency, and fight against corruption. As outlined above, in Burma/Myanmar those conditions are not met at this point. Given the weak legislative framework, the pattern of systematic human rights violations associated to business activities, as well as corruption and a lack of an independent judiciary, the EU must take appropriate measures to ensure that it complies with its human rights obligations. Thus, FIDH and Altsean-Burma call on the EU to: 1. Before concluding an investment agreement, negotiate and conclude with the government of Burma/Myanmar a time-bound and benchmarked roadmap that identifies priority reforms needed to create a business environment that is conductive to the fulfilment of human rights; 2. Provide technical and financial support to the implementation of the roadmap and closely monitor progress towards its realisation; 3. Develop a binding normative framework for EU companies engaged in business activities in Burma/Myanmar in order to ensure that they respect human rights, as set forth in the UNGPs and OECD Guidelines for Multinational Enterprises; 4. Carry out a human rights impact assessment of investments in Burma/Myanmar and incorporate the assessments findings in negotiations on investment agreements with the government; 5. When conditions are fulfilled to ensure business environment that is conductive to the fulfilment of human rights, negotiate an investment agreement that efficiently protects and respects human rights.
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1. Preliminary reforms in Burma/Myanmar

Before beginning or at the very early stages of the negotiations on an investment agreement with the government of Burma/Myanmar, the EU should negotiate and conclude a time-bound and benchmarked roadmap. The roadmap should identify the priority reforms that Burma/ Myanmar should undertake to ensure that investments respect human rights. a. A roadmap for priority reforms The EU should negotiate with the government of Burma/Myanmar a time-bound and benchmarked roadmap that aims at creating an environment conducive to greater respect of human rights. The EU should monitor the implementation of the roadmap using precise indicators. The conclusion of the investment agreement should be delayed until adequate progress in the implementation of the road map is achieved. The roadmap should contain at least the following: - The opening of a UN Office of the High Commissioner for Human Rights (OHCHR) office in Burma/Myanmar with a full mandate of protection and promotion of human rights throughout the country, including monitoring, reporting and recommendations activities. - Ratification of key international instruments. Burma/Myanmar has ratified only few international conventions protecting human rights, namely the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the ILO convention 29 and 87, and the UN Convention Against Corruption. The ratification of other key international conventions will show the commitment of the government of Burma/Myanmar to human rights, and should facilitate the monitoring of the human rights situation in the country, through the relevant protection mechanisms. The relevant conventions include at least the following: International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights and its optional protocol Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its optional protocol International Convention on the Elimination of All Forms of Racial Discrimination Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts Convention on the Prevention and Punishment of the Crime of Genocide International Convention on the Suppression and Punishment of the Crime of Apartheid Rome Statute creating the international criminal court Minimum Age for Admission to Employment (ILO convention No 138) Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO convention No 182) Abolition of Forced Labour (ILO convention No 105) Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO convention No 100)
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Discrimination in Respect of Employment and Occupation (ILO convention No 111) Application of the Principles of the Right to Organise and to Bargain Collectively (ILO convention No 98) Indigenous and Tribal Peoples (ILO convention No. 169) Protection of Wages (ILO convention No. 95) - Review, amendment or repealing of legislations that is not in line with international standards or have been used to restrict or violate human rights. These laws include: - The 2008 Constitution: The military-drafted constitution, approved during a sham referendum in May 2008, contains several clauses that allow the government to use existing draconian laws to severely limit basic human rights and fundamental freedoms. The following articles are particularly concerning: - Article 353: Nothing shall, except in accord with existing laws, be detrimental to the life and personal freedom of any person. - Article 354: Every citizen shall be at liberty in the exercise of the following rights, if not contrary to the laws, enacted for Union security, prevalence, law and order, community peace and tranquility or public order and morality: a) to express and publish freely their convictions and opinions; b) to assemble peacefully without arms and holding procession; c) to form associations and organizations. - Article 376: No person shall, except matters on precautionary measures taken for the security of the Union or prevalence of law and order, peace and tranquility in accordance with the law in the interest of the public, or the matters permitted according to an existing law, be held in custody for more than 24 hours without the remand of a competent magistrate. - Article 445: [] No proceeding shall be instituted against [] any member thereof or any member of the Government, in respect of any act done in the execution of their respective duties. - Section 401 of the Criminal Procedure code: This section prescribes that offenders who have been granted parole can be re-arrested and forced to serve the remainder of their original jail sentence if they violate any laws. The government has routinely released political prisoners under Section 401 of the Criminal as a way of dissuading them from carrying out political activities. - The Criminal Code: Sections 141, 143, 145, 151, 152, 505, 505(b) and 295-A, vague worded referring to offences against the State or against public tranquility for example. - The Unlawful Association Act (1908): The Unlawful Association Act makes it an offence, punishable with two to three years in prison, to have contact with any organization that the regime declares as illegal. Under this law, an association on that interferes or has for its object interference with the administration of the law and with the maintenance of law and order, or that it constitutes as a danger to the public peace, may be deemed illegal. The government has frequently used the Unlawful Association Act to jail activists who had ties with exiled pro-democracy organizations. - The Emergency Provisions Act (1950): Under this law it is an offence, punishable with imprisonment of up to seven years, to commit any act which violates or infringes upon the
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integrity, health, conduct and respect of State military organizations and government employees towards the[ ] government, or causes or intends to disrupt the morality or the behavior of a group of people, or the general public. Due to its ambiguity, it confers sweeping powers on the authorities to quell real or imagined dissent. It has been regularly used to put hundreds of NLD, monks, students, and activists behind bars. Its Section 5 has been frequently invoked to jail dissidents (in particular, section 5(j), which says that any act likely to affect the morality or conduct of the public or a group of people in a way that would undermine the security of the Union or the restoration of law and order, is considered an offence, punishable with up to seven years in prison). This law also limits the right to appeal and circumvents the requirement that all detainees be informed of the reason for their arrest and be brought quickly brought before a judge. - The State Protection Law (1975): The State Protection Law gives the authorities the power to detain anyone suspected of having committed, committing, or being about to commit an act endangering the sovereignty and security of the state or public peace and tranquility. The law does not specify a definition for what constitutes an act that endangers state security. In addition, it allows an offender to be imprisoned for up to five years without trial on the orders of the executive. Unlike the Emergency Provisions Act, the State Protection Law can only legally be utilized in a state of emergency. However, the government used the State Protection Law to detain Daw Aung San Suu Kyi and other dissidents despite no declaration of a state of emergency. - The Law relating to forming of organizations (1988): This law punishes with a prison term of up to five years anyone who is found guilty of forming an organization that attempts, instigates, incites, abets or commits acts that may in any way disrupt law and order, peace and tranquility. - The Television & Video Law (1996): The Television and Video Law imposes heavy restrictions on the freedom of expression in Burma/Myanmar. The law requires the licensing of all television sets, video cassette recorders, and satellite television. The law makes it compulsory for every video tape shown in Burma/Myanmar to include a censorship certificate, which must be exhibited at every screening of the tape. Under the law, all video businesses must obtain a license from the Video Business Supervisory Committee, which also has the authority to carry out on-site inspections. Those found in violation of the law face imprisonment for up to three years and fines of up to 100,000 kyat (approx. US$102), or both. - The Electronics Transactions Law (2004): The Electronics Transactions Law (ETL) punishes with a prison sentence ranging from seven to 15 years anyone who commits any act detrimental to the security of the State or prevalence of law and order or community peace and tranquility using electronic media (computer, fax, e-mail, telegraph, telex, etc). The same penalty range applies to anyone who is convicted for receiving, sending, and distributing in electronic form any information relating to secrets of the security of the State or prevalence of law and order or community peace and tranquility. The government has often used the ETL to imprison activists, bloggers, and journalists who expressed their opposition to the regime through the use of websites, e-mails, and similar forms of electronic communication. - The Peaceful Gathering and Demonstration Law (2012): Article 18 of the law prescribes up to one year in prison for those who demonstrate without obtaining the authorities prior permission. Authorities have frequently refused to issue protest permits to activists, farmers, and human rights defenders. Since the law was enacted in July 2102 the government has sentenced at least 29 in connection with unauthorized peaceful protesters across Burma/ Myanmar. - The Citizenship Law (1982): The law effectively denied citizenship to approximately 800,000 Rohingya in Arakan/Rakhine State because it does not recognize them as one of

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the 135 indigenous races of Burma/Myanmar. Under this law, Rohingya could be granted citizenship if they could prove that their ancestors had settled in Burma/Myanmar before 1823 an excessively onerous requirement for the overwhelming majority of Rohingya. - The Printers & Publishers Registration Law (1962): This law requires all books, magazines, periodicals, song lyrics, and film scripts to be approved by the government Press Scrutiny and Registration Division prior to publication or distribution. An offence under this law is punishable with up to seven years imprisonment and a fine In January 2003, the government replaced its Censorship Board with a very similar body called the Central Supervisory Committee for Registration and Distribution of Printers and Publishers (CSCRDPP). The 12-member committee, which includes officials from the Information, Defence, and Home Affairs ministries as well as members of police and military intelligence, is responsible for monitoring publications and issuing, suspending, and revoking publishing licenses. In addition to the ratifications of the international instruments and the pursuit of legislative reform, the government of Burma/Myanmar must implement the following priorities in order to ensure that investments respect human rights: - Order an immediate end to all Tatmadaw military operations in ethnic areas and a progressive troop withdrawal from conflict-affected areas; - Promote a time-bound, genuine, and inclusive political dialogue with all ethnic armed groups; - Take effective measures to end and prevent recurrence of impunity and protect civilians from human rights violations; - Grant local and international organizations free and unfettered access to IDP camps in KIA controlled areas in Kachin State. Facilitate unimpeded access to all IDPs affected by unrest in Arakan/Rakhine State and take effective action against those who intimidate humanitarian agencies; Support the establishment of an independent international investigation into recent antiMuslim violence in the country; - Unconditionally release all remaining political prisoners, including hundreds of Rohingya arbitrarily detained in Arakan/Rakhine State and repeal legislation used to arbitrarily detain and imprison activists, human rights defenders, and members of ethnic and religious minorities; - Enact legislative and institutional reforms to ensure the protection of land and housing rights, - Enact legislative and institutional reforms to reduce the occurrence of corruption, including measures to protect whistle blowers; - Undertake the required reforms to ensure transparency of extractive resource revenue and take all other necessary steps to join the Extractive Industries Transparency Initiative (EITI).

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b. Technical/financial assistance and roadmap implementation monitoring The EU should provide technical and financial assistance in order to support the full implementation of the roadmap for priority reforms. The EU should monitor the implementation of the roadmap using clear and specific indicators. To this end, the EU should: - Ensure that the roadmap is made public. - Design clear and specific indicators in consultation with the government and civil society in Burma/Myanmar (for example the fight against impunity requires not only legislative reforms, but also an increased number of public declarations by the authorities condemning violence, increased number of complaints, condemnations, etc. On land, it requires in addition of regulatory reforms, number of consultations conducted, impacts assessment realized, their publication, reduction of violence, detention and due process against protestors and human rights defenders, increasing number of complaints introduced by victims, etc.). - Carry out and publicize regular assessments of the implementation of the roadmap, and consult civil society to that end.

2. A binding framework for EU companies investing in Burma/myanmar

The EU should develop a binding normative framework in order to ensure the European companies that conduct activities in Burma/Myanmar respect human rights as set forth in the UNGPs and OECD Guidelines for Multinational Enterprises. Given the countrys high level of corruption and abysmal human rights record, self-regulating company codes of conduct would be woefully inadequate in Burma/Myanmar. The EU should reinforce its legal framework and require member states to enact relevant legislation in order to: - Make human rights due diligence mandatory for EU-based companies. Companies should identify, prevent, mitigate, and account for the human rights impact and risks of their activities, including operations conducted through their supply chains; - Adopt clear and mandatory requirements for the disclosure of EU-based companies activities and impact assessments related to on human rights and the environment, including throughout their supply chain. - Ensure full transparency of companies activities by requiring disclosure of details of investments (including of contracts) and all business relationships including the list of suppliers of companies sourcing from Burma/Myanmar. This information should be made accessible to all local stakeholders, including affected communities; - Ensure compliance with anti- corruption measures; - Require investors to carry out initial and ongoing human rights due diligence including human rights impact assessments of their operations; - Require companies to publish periodic reports on their human rights policies, environmental and social risks, the impacts of their activities, and measures taken to mitigate negative impacts, prior to, during, and after their operations; - Ensure that affected individuals/communities have access to effective remedies and
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facilitate victims access to courts in EU home countries of companies active in Burma/ Myanmar. Require disclosure of all payments made by companies to the Burma/Myanmar authorities. The EU should put in place a centralized mechanism to gather the above-mentioned information and monitor the respect of the process of human rights due diligence. Notwithstanding the absence of legal requirements on mandatory due diligence and nonfinancial reporting, companies operating in Burma/Myanmar should be encouraged to: - Conduct human rights due diligence, including through the conduct of human rights impact assessments of their activities, in consultation with potentially affected rightsholders including workers and communities as well as local civil society; and publicly report on those processes; - Urge the authorities in Burma/Myanmar to implement reforms and create a legislative and institutional framework conducive to responsible investment; - Avoid encouraging or participating in the repression of those who oppose or protesting their activities and operations; - Avoid any business relationships with individuals or companies that have been linked to human rights abuses in Burma/Myanmar; - Collaborate fully with legitimate and effective remedy mechanisms for victims of human rights abuses stemming from their operations.

3. Human rights impact assessment

At the early stages of the negotiations of an investment agreement, the EU must carry out a human rights impact assessment of investments in Burma/Myanmar. As outlined by the UN Special Rapporteur on the right to food1, human rights impact assessments are the best way to ensure that investment agreements are consistent with human rights obligations and to remove incompatibility before the agreement is signed or ratified (by the adoption of measures at the domestic level and/or by the introduction within the agreement itself clauses, such as flexibilities or exceptions if appropriated). The human rights impact assessment should be conducted in line with the Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements2. The European Commission, external trade Handbook for Trade Sustainability Impact assessment (March 2006) and the Operational Guidance on Taking Account of Fundamental Rights in Commission Impact Assessments (adopted in May 2011) could inspire the methodology to be used, but compared to the past and current impact assessment (IA) and sustainable impact assessment carried out (SIA), significant improvements are needed. The human rights impact assessment should: - measure the potential impact of an investment agreement on human rights outcomes and on the capacity of States and non-State actors to meet their human rights obligations, as
1. A/HRC/19/59/&dd.5, Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum, Guiding

Principles On Human Rights Impact Assessments of Trade and Investment Agreements, December 2011 2. Olivier De Schutter, December 2011 A/HRC/19/59/&dd.5, Report of the Special Rapporteur on the right to food, Addendum
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well as on the capacity of individuals to enjoy their rights; - be based explicitly on the normative content of human rights, as clarified by the judicial and non-judicial bodies that are tasked with monitoring compliance with human rights obligations and to be based on efficient consultations and international expertise. - be conducted through genuine, transparent, and inclusive consultations that ensure the participation of the widest range of stakeholders, including affected communities. The process should include: o Preparatory rounds of consultations with international experts, including: academics; members of international organisations (ILO, UN, OECD); businesses investing in Burma/Myanmar; associations of employers; trade unions representatives of European institutions (European Parliament, European Economic and Social Committee, European Commission, COASI, COHOM, EEAS); representatives from local communities potentially affected, and human rights NGOs; o field studies and fact-finding missions; o review and assessment of the measures taken by the EU and by businesses investing in Burma/Myanmar to respect, protect, and fulfil human rights; - The human rights impact assessment should be prepared by a body or group of experts who are independent from the European Commission. - The contractor - under the scrutiny of the Steering Committee, the EP, and the Council - shall ensure that all relevant stakeholders are both aware of and able to contribute to the consultations. Consultation should involve all communities potentially affected by business operations and specific attention must be paid to their right to receive timely and thorough information, also in their own language. A genuine dialogue should be created to avoid simple information processing and to fine-tune recommendations, collect factual data, validate hypothesis, gather evidence and build-in quality checks. The on-line consultations and interviews carried by the Commission in mid-July, are regrettably insufficient in that regard.

4. An agreement that efciently protects and respects human rights

An investment agreement should: - Be subsequent to the necessary progress in the implementation of the roadmap for priority reforms, and be based on the conclusions drawn by the human rights impact assessment; - be based on a fully transparent and participatory processes of negotiation; - not contain any incompatibility with human rights; - include specific clauses that ensure the protection of human rights and the ability of Burma/ Myanmar to regulate in order to protect, respect and fulfil its human rights obligation. To this end, FIDH and Altsean Burma call on the EU to ensure: Inclusion of binding and enforceable human rights provisions, including social and environmental provisions
FIDH/ALTSEAN-Burma FIDHs Recommendations concerning EU-Burma/myanmar investments relations / 17

- The promotion, protection, respect, and fulfilment of human rights should be included among the objectives of the investment agreement; - Include Human rights clauses that import in the investment agreement the international standards as binding and enforceable commitments, that guarantee respects of human rights, and that allow the parties to invalidate, suspend, derogate or adapt the agreement provisions if there is a warranted suspicion that they are contributing to human rights violations. The clause should refer to the international obligations of the parties only if Burma/Myanmar has ratified the above mentioned conventions. If not, it should refer explicitly to relevant the international instruments3. - Failure to respect human rights and implement international conventions on human rights by parties to the treaty or investors should be subject to an appropriate dispute settlement mechanism. Third parties (such as trade unions, affected communities, and human rights NGOs) should be enabled to submit evidence or arguments before the mechanism. - Encourage cooperation between treaty Parties to provide enhanced environmental, human rights and labour protection and hold expert consultations on such matters. - A rendez-vous clause should be adopted that prescribes regular ex-post human rights impact assessments (HRIAs) and allow revisions of problematic provisions of the agreement in light of the assessments findings. UN human rights institutions should be involved, as should independent civil society representatives. The ex-post HRIAs should study the respect of the human rights obligations by the parties and assess the extent to which the investment agreement contributes to achieving expected results in terms of enhancing human rights. They should also investigate the results of the flanking measures, investigate the causes when shortcomings and lead to dedicated procedures to adapt the obligations of the parties if needed. - The agreement mechanism should set up a mechanism aimed at strengthening the implementation of its human rights provisions. Under this mechanism, international experts, representatives of affected communities, human rights NGOs, should hold regular consultations, channel proposals to improve the HRIAs, and introduce complaints procedures. Clauses under investment treaties, if drafted too broadly, can limit the right of host states to regulate in the public interest. As a result, the investment agreement should: - Insert a clause stating that the agreement can not be interpreted as restricting the right of state parties to regulate in order to protect, respect and fulfil human rights. It must be clear that those activities should prevail on the defence of the interests of investors and do not constitute a violation of the agreement or an expropriation. - Indicate that the promotion and protection of investments should be pursued in compliance with the parties obligations under international law, including their obligations with respect
3. At least the following ones : Universal Declaration of Human Rights, the International Covenant on Civil and

Political Rights, the International Covenant on Economic, Social and Cultural Rights, the core ILO labor conventions. The human rights clause should also state: Respect for human rights, democratic principles and the rule of law, as laid down in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the core ILO labour conventions and other international obligations and commitments of the parties underpin the present agreement, underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement as well as If a Party considers that the other Party has failed to fulfil an obligation under the Agreement, it may take appropriate measures. Before doing so, except in cases of special urgency, as it the case in case of allegation of violation of one of the essential elements of the Agreement, it shall invite the other Party to hold consultations that focus on the measures taken or to be taken by the Party concerned to remedy the situation.

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to human rights, labour rights, and protection of the environment. - Stipulate that in case of a conflict between the investment agreement and a host states international commitments with regard to the protection of human rights, environment, and public health, the latter shall prevail. - Include a binding clause that commit the parties not to lower human rights, environmental, and labour standards to attract or encourage investment4. Most investment agreements provide extensive protection for investors but only impose obligations on states. In order to protect human rights, any future investment agreement between the EU and Burma/Myanmar should: - Include a human rights binding clause that states that investors must respect international human rights instruments, including the UN Guiding Principles on Business and Human Rights, and the OECD Guidelines for Multinational Enterprises. - If investors violate human rights it should be possible to use the general dispute settlement mechanism to solve the conflict. If a solution cannot be reached, sanctions in the form of substantial fines should be imposed after the general dispute resolution mechanisms have been exhausted. It should allow amicus curiae5. - Investor-state dispute settlement (ISDS) mechanisms have been rightly criticized as a powerful tool which has been abused to challenge measures meant to promote the public interest and thus interfering with legitimate policies and policy-making. It has displayed serious shortcomings (e.g. inconsistent and unintended interpretations of clauses, unanticipated uses of the system by investors, challenges against policy measures taken in the public interest, costly and lengthy procedures, limited or no transparency). In line with the position of ETUC6, FIDH and Altsean recommend to not set up Investor-State Dispute Settlement and to provide the only State-to-state dispute resolution to guarantee the crucial role of governments in determining and protecting the public interest. If the EU continues to support ISDS, it should allow for full transparency over the proceedings, amicus curiae by any interested or relevant third party, and deny to investors the protections afforded by the treaty when they fail to respect human rights. Arbitration panels should include human rights experts.

4. See also the recommendations concerning MFN, NT, FES, FPS etc. laid down in the ETUC Resolution on EU

Investment Policy: http://www.etuc.org/a/11025 5. ETUC Resolution on EU Investment Policy: http://www.etuc.org/a/11025 6. ETUC Resolution on EU Investment Policy: http://www.etuc.org/a/11025

FIDH/ALTSEAN-Burma FIDHs Recommendations concerning EU-Burma/myanmar investments relations / 19

Background documents
- A/HRC/19/59/Add.5, Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum, Guiding principles on human rights impact assessments of trade and investment agreements, December 2011 - ETUC Resolution on EU Investment Policy: http://www.etuc.org/a/11025 - European Parliament resolution of 13 June 2013 on the situation of Rohingya Muslims - European Parliament resolution of 23 May 2013 on reinstatement of Myanmar/Burmas access to generalised tariff preferences - European Parliament resolution of 16 April 2013 on trade and investment-driven growth for developing countries - European Parliament resolution of 13 December 2012 on the review of the EUs human rights strategy - European Parliament resolution of 25 November 2010 on human rights and social and environmental standards in international trade agreements - Council of the European Union, 11855/12, EU Strategic Framework and Action Plan on Human Rights and Democracy, 25 June 2012

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FIDH/ALTSEAN-Burma FIDHs Recommendations concerning EU-Burma/myanmar investments relations / 21

This publication has been produced with the assistance of the Ministry of Foreign Affairs of the Netherlands. The contents of this publication are the sole responsibility of FIDH and ALTSEANBurma.

22 / FIDHs Recommendations concerning EU-Burma/myanmar investments relations FIDH/ALTSEAN-Burma

Keep your eyes open

Establishing the facts
Investigative and trial observation missions
Through activities ranging from sending trial observers to organising international investigative missions, FIDH has developed, rigorous and impartial procedures to establish facts and responsibility. Experts sent to the field give their time to FIDH on a voluntary basis. FIDH has conducted more than 1500 missions in over 100 countries in the past 25 years. These activities reinforce FIDHs alert and advocacy campaigns.

Mobilising the international community

Permanent lobbying before intergovernmental bodies
FIDH supports its member organisations and local partners in their efforts before intergovernmental organisations. FIDH alerts international bodies to violations of human rights and refers individual cases to them. FIDH also takes part inthe development of international legal instruments.

Informing and reporting

Mobilising public opinion
FIDH informs and mobilises public opinion. Press releases, press conferences, open letters to authorities, mission reports, urgent appeals, petitions, campaigns, website FIDH makes full use of all means of communication to raise awareness of human rights violations.

Supporting civil society

Training and exchange
FIDH organises numerous activities in partnership with its member organisations, in the countries in which they are based. The core aim is to strengthen the influence and capacity of human rights activists to boost changes at the local level.

ALTSEAN Burma Alternative Asean Network on Burma campaigns, advocacy and capacity-building for human rights.
The EU has expressed its willingness to conclude an investment agreement with Burma/Myanmar. But Burma/Myanmar faces weak legislative framework, a pattern of systematic human rights violations associated to business activities, as well as corruption and a lack of an independent judiciary. Highlighting the risks for investments to be linked to human rights violations, this paper issues recommandations to the EU on the measures to be taken in order to ensure that it complies with its human rights obligations.

PO BOX 296 - Lardprao Post Office, 10310 Bangkok, Thailand Phone # : +66 81 850 9008 Fax # : +66 2 275 4261 E-mail: altsean@altsean.org

FIDH - International Federation for Human Rights

17, passage de la Main-dOr - 75011 Paris - France CCP Paris: 76 76 Z Tel: (33-1) 43 55 25 18 / Fax: (33-1) 43 55 18 80 www.dh.org

Director of the publication: Karim Lahidji Editor: Antoine Bernard Authors: Gaelle Dusepulchre (desk UE), Andrea Giorgetta (desk asean ) Coordination: Antoine madelin Design: CBT

Imprimerie de la FIDH - Dpt lgal janvier 2014 - FIDH (English ed.) ISSN 2225-1804 - Fichier informatique conforme la loi du 6 janvier 1978 (Dclaration N330 675)

human rights organisations on 5 continents

FIDH represents 178

inhuman or degrading treatment or punishment. Article 6: Everyone has the right to recognition everywhere as a person before the law. Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9: No one shall be subjected to arbitrary arrest, detention or exile. Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11: (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty

ABOUT FIDH
FIDH takes action for the protection of victims of human rights violations, for the prevention of violations and to bring perpetrators to justice. A broad mandate FIDH works for the respect of all the rights set out in the Universal Declaration of Human Rights: civil and political rights, as well as economic, social and cultural rights. A universal movement FIDH was established in 1922, and today unites 178 member organisations in more than 100 countries around the world. FIDH coordinates and supports their activities and provides them with a voice at the international level. An independent organisation Like its member organisations, FIDH is not linked to any party or religion and is independent of all governments.

Find information concerning FIDHs 178 member organisations on www.dh.org