This week, rural villagers and their NGO representatives traveled from Cambodia and Thailand to Kuala Lumpur to hand-deliver a complaint to SUHAKAM, Malaysia’s Human Rights Commission. The villagers claim that Malaysian company Mega First is harming their communities through the company’s work on the Don Sahong dam project in Laos, which is likely to have significant and irreversible impacts on communities along the Mekong River.
This is not the first time that communities in the region have turned to a national human rights institution (NHRI) outside of their home country for business-related rights abuses. Villagers from Cambodia, Laos and Burma have lodged cases before the National Human Rights Commission of Thailand related to the Koh Kong sugar plantation, the Xayaburi Dam project and the Dawei Special Economic Zone project, respectively – all projects operated by Thai companies.
NHRIs in Southeast Asia have often been described as “paper tigers” or “toothless agencies” — accused of sitting idle in the face of serious human rights concerns.
One reason NHRIs in the region are perceived as weak is that their mandates are limited. Their powers are mostly investigatory and recommendatory, with a heavy focus on human rights promotion and education. None of them have the power to directly prosecute cases before courts or to directly penalise abusers.
Despite these limitations, some NHRIs in the region are beginning to show leadership in protecting human and community rights against business-related abuses through investigation of specific cases as well as issue-based inquiries.
The National Human Rights Commission of Thailand (NHRCT) set a new regional standard by accepting the Koh Kong, Xayaburi and Dawei cases, which focus on the acts of Thai companies operating abroad. The investigation proceedings in each of these cases provided communities with the rare space to formally present their concerns, and the opportunity to receive information or documents from companies that they would not otherwise have access to. The Koh Kong case has been described by the UN special rapporteur on Cambodia as “a landmark case for international advocacy in Cambodia.” Meanwhile, the Commission has released a preliminary finding that “human rights principles and instruments were breached… and that the Thai parent company is involved in the operations… where the breaches took place”.
In Malaysia, SUHAKAM responded to numerous complaints from indigenous groups of widespread violations of their customary land rights by embarking on a historic national inquiry and issuing a report that presented the government with recommendations generally favourable to indigenous groups. Indonesia’s human rights commission, Komnas HAM, is conducting a similar issue-based inquiry as part of its ongoing national effort to gather information from indigenous communities, government agencies and companies in order to develop solutions for land disputes.
Swimming against the current
In the Don Sahong case brought before SUHAKAM this week, the Cambodian and Thai villagers are requesting that the Commission investigate the 260 MW dam project that threatens vital Mekong River fisheries and biodiversity including the iconic but critically endangered Irrawaddy dolphin. The villagers say the project also undermines food and livelihood security, not only in Laos but in Thailand, Cambodia and Vietnam as well. The project is located less than two kilometres upstream of the Laos-Cambodia border, and experts have warned that it will block the main upstream fish channel that is passable throughout the year, seriously disturbing fish migrations between Cambodia, Laos and Thailand.
The villagers are not alone in their concerns. In 2007, 34 scientists sent a letter to the Laos Government urging it to “consider the weight of scientific evidence that will show the Don Sahong project to be hugely destructive, such that even the economic (including livelihood) costs outweigh the net benefits – even before the environmental impacts are taken into consideration.” The serious lack of information and public consultation, characteristic of many large projects in the region, is only one of the indications that these alarm signals have been falling on deaf ears. After the Laos Government agreed in June to submit the project to a mandatory prior consultation process, it was discovered in October that the process had begun in July with no official announcement or public information.
Malaysian developer Mega First, against which the SUHAKAM complaint is being lodged, has failed to respond to requests for information and comment by civil society groups. In October 2013 and September 2014, the Business & Human Rights Resource Centre sent the company requests for responses to reports raising social and environmental concerns about the project — each time sending follow-up letters and making phone calls to ensure that company representatives received our request. Both times, the company chose to remain silent. This decision not to engage has denied communities the chance to receive vital information on a project that directly affects them and their future generations, and forestalls an opportunity for constructive dialogue and engagement between project stakeholders.
One last hope
Faced with a government and a company whose actions have so far signified little eagerness to act on scientifically backed concerns of communities across three Mekong countries, villagers are again pinning their hopes on an NHRI in the company’s home country. Based on the precedent set by the other cases before the NHRC of Thailand, this case presents another opportunity for an NHRI to demonstrate its independence and commitment to the promotion and protection of human rights. The case also offers one of the few avenues for affected communities to have access to important information and to finally hear from Mega First.
The communities and their supporters understand that NHRIs, with their inherent limitations, remain a second-best option. But until states start taking their obligation to provide effective remedies seriously, and corporations can be held liable for human rights violations through these remedies, cases like this one are likely to appear with even greater frequency.
The Don Sahong case is another opportunity for SUHAKAM to show leadership and continue to push boundaries in order to provide assistance, hope, and a measure of justice. Meanwhile, pressure must be sustained on the parties where the duties ultimately lie: companies with the responsibility to respect rights, and states that are duty-bound to ensure that such responsibility is met.
Bobbie Sta. Maria is the Southeast Asia researcher and representative of Business & Human Rights Resource Centre, an organization that tracks the human rights performance of over 5,600 companies in more than 180 countries.