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ExcludedBurmas Ethnic Nationalities on the Margins of

Development & Democracy

A report by Nationalities Youth Forum (NY-Forum) and Students

Youth Congress of Burma (SYCB)


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ExcludedBurmas Ethnic Nationalities on the Margins of

Development & Democracy

A report by Nationalities Youth Forum (NY-Forum) and Students Youth Congress

of Burma (SYCB)

About CORE

Community Organizing and Rights Education-Burma (CORE) is a joint project o NationalitiesYouth Forum (NY Forum) and the Students and Youth Congress o Burma (SYCB), and implementedby a coalition o 14 youth member organizations rom largely ethnic nationalities and indigenouscommunities in seven states and two divisions o Burma. CORE organized the publication o thereport Excluded.

Acknowledgements

All inormation in this report was compiled by ethnic nationality youth groups throughout Burmawho put themselves at great risk in order to document the gross negligence o participation rights.

Research and Writing Team

Eric Gonzalez Data AnalystMarcia Robiou Lead Writer and Researcher

Disclaimer

All the names o the local villagers interviewed or this report have been changed to protect theirsaety and security.

Cover photos courtesy o Francis Wade and ZSYO.


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1 Executive Summary 1

2 Map o Development Projects 3

3 Foreword 4

4 Recommendations 7

5 Introduction 10

6 Section 1: Ethnic Nationalities at Risk: The Background

6:1 Ethnic nationalities and the resource curse 12

6:2 A civil matter: ASEAN Investment in Burma 15

6:3 Concept of Free, Prior, and Informed Consent 18

6:4 Ensuring FPIC is fully respected 20

6:5 Legal basis for claiming FPIC rights 22

6:6 The Right to Participate in Law and Policy in Burma 25

6:7 ASEAN policy on business and human rights 28

6:8 Burmas International Obligations 30

7 Section 2: The Data Behind the Discrimination

7:1 Key Findings 32

8 Section 3: Ethnic Exclusion: The Documentation 34

8:1 Dawei Deep Seaport, Tenasserim Division 35

8:2 Economic Industry in Paan, Karen State 39

8:3 Upper Paunglaung Dam in Pin Laung Township,

Southern Shan State 41

8:4 Kadaik Dam Project in Mon State 44

Table of Contents


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8:5 Myitsone Dam in Kachin State 48

8:6 Teddim-Rih Road in Chin State 52

8:7 Sittwe Seaport in Arakan State 56

8:8 Cement Factory in Karenni State 59

8:9 Shwe Gas pipeline in Arakan State 62

9 Conclusion 67

10 Appendices

10:1 Appendix A: Methodology 68

10:2 Appendix B: Descriptive statistics 69

10:3 Appendix C: The questions 70


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A Report by Community Organizing and Rights Education1

Executive Summary

Close to 90% of those sur veyed did not receive any information about the development project before

it was started by a decision maker. In all but 2 sites, not one person was given any information.

Tis report presents documented evidence that ethnic nationalities directly aected by developmentprojects in Burma are systematically denied their right to ree, prior, and inormed consent (FPIC).While development related abuse has been well documented, no report has shed light on the stagger-ing scale o the widespread denial o participation rights in Burma.

Te data collected or this report, based on 261 interviews conducted across 7 states and 1 division,involved 10 ethnic nationality groups and 9 development projects, reveal a trend o intimidation by

project authorities, active suppression o project-related inormation, and an impression on the part oaected communities that development projects will not positively impact their lives. Te results painta grim portrait o Burma where ethnic nationalities are systematically intimidated into not seekingurther inormation about a development project and kept completely in the dark about decisions thatdirectly aect their livelihood. Tese ndings suggest that Burmas diverse populations cannot reapthe benets o development without their ree, prior, and inormed consent.

Although Burma has ratied the UN Declaration on the Rights o Indigenous Peoples (UNDRIP),which set out clear provisions or ree, prior, and inormed consent, there is still no national law inBurma that enshrines the right o individuals to participate in decisions that aect them. Encoding

FPIC standards in domestic law is a necessary step i the UNDRIP is to have any real impact onthe lives o aected individuals. Moreover, in engaging in abusive practices that oten accompanydevelopment projects, such as conscating land, Burma is in direct violation o its own domesticlaws as well as regional and international human rights obligations. Tis report nds that shadowyand non-inclusive development projects requently result in grave abuses o the local population, andthereore, can not be trusted to sel-monitor their conduct. Regional and international monitoringo development projects is necessary to stem these onerous abuses. Te report urges Burma to im-mediately codiy provisions o ree, prior, and inormed consent into domestic law.

Great care was taken to ensure statistical integrity in order to present an accurate portrayal o howparticipation rights are respected, or not respected, in ethnic nationality areas throughout Burma. Wecan state, with a 95% condence level, that the ndings made by this report hold true or all ethnicnationality rural (non-security heightened) areas in Burma aected by inrastructure and industrialdevelopment projects1.

Our research shows that:

Close to 90% o those surveyed did not receive any inormation about the development project

1

In total 261 surveys were conducted using random sampling. Due to this, and because of the methodology described in thisreport, we assert that data, unless specified, maintains a 6.07 Confidence Interval at a 95% Confidence Level for all similar areas

(rural, non-security heightened areas) affected by infrastructure and industrial development projects.


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2Excluded

beore it was started by a decision maker. In all but 2 sites, not one person was given any inorma-tion.

Approximately 80% o the total survey population did not know who to contact or where to goto nd out more inormation about the project. In 3 sites, the gure soared to 100%.

Less than 1% said a public orum was held by a project decision maker where the local commu-nity could attend.

O the total sample population, less than 2% elt they would not be punished i they sought in-ormation about the project.

Close to hal (44.1%) elt unsae seeking urther inormation about the project, while 45.2% were

not sure whether it was sae or unsae.

Less than 1% experienced positive impacts rom the development project.

Tis report is meant to serve as a warning o the risks entailed in denying participation rights as wellas a reminder to potential investors o their human rights obligations.

Every development project surveyed showed some incidences o human rights abuse. In one project,Chin villagers were not only orced to construct part o a road being unded by India, but also pay orparts o the construction. Illegal taxation, orced evictions, and land conscations are among the mostcommon development related abuses practiced to this day.

While project security orces rom the Burma army commit much o the abuse, Burma is not thesole party responsible or these human rights breaches against ethnic nationalities. All companies,whether multinational enterprises, state-owned, or private, have an obligation to uphold human rightsstandards regardless o the country they are operating in. Te rst step in achieving this is by ensuringall relevant parties comply with international standards o ree, prior and inormed consent.

Tis report makes a number o recommendations to the government o Burma, ASEAN member

states, international nance institutions (IFIs), and the international community in this regard. Allrecommendations are made in line with the principles o transparency, accountability, participation,and community empowerment in mind and the belie that a rm respect or human rights is theoundation o sustainable development.


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Map of Development Projects


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4Excluded

Foreword

Untapped Potential: Youth in Burma

The ethnic nationality youth of Burma are afraid to speak out against development projects in their

area. They are afraid they will lose their jobs. The youth need to be empowered to know their rights, so

they can ser ve as a loudspeaker for their community.

Taang youth activist2

Te idea behind this report has its roots in a network o youth organizations that believe that thevibrant youth population is one o Burmas most valuable untapped resources. We hope to give voice

to the voiceless in Burma by documenting the concerns and needs o ethnic youth who are at risk obeing sidelined and silenced by potentially harmul development projects.

Te youth o Burma have shown that they have a vital role to play in paving the way or positivedemocratic reorm. It was the youth who poured onto the streets in 1988 calling or an end to militaryrule, sparking the largest demonstrations in the nation to date, and again in the 1990s to denouncepolice brutality and advocate or human rights. Trough their actions and visibility, youth have shownthat any national political agenda must address their needs.

Unortunately, successive administrations have systematically neglected the well-being and develop-ment o Burmas youth, particularly in ethnic nationality and rural areas. Instead o using the gainsmade rom development projects to increase investments in social spending, the government allocatesonly about 3% o the national budget to education, one o the lowest investment levels in the worldand poor compared to regional standards3. A paltry 2% o the budget goes to health care while closeto 30% o children under 5 years o age are chronically underweight rom malnourishment4. Burma,which already has one o the poorest health indicators in Asia, has even poorer indicators in ethnicnationality areas: in some remote communities, only 32% o ethnic nationality youth receive a ullcourse o vaccination5.

State money that can improve the livelihoods o millions who live on less than a dollar a day is insteadbeing used to strengthen the state military, a breeding ground or project security orces responsibleor abusing and instilling ear in ethnic nationalities residing near development projects. As oneaected youth lamented, they are always with guns so we are araid to approach themwe really hatewho came with soldiers or projects6. Close to a quarter o the national budget goes to the military

2 Interviewed for the report Excluded.3 U.S. policy toward Burma, testimony before the Senate Committee on Foreign Relations Subcommittee on East Asian and Pacific

Affairs, U.S. State Department, by Joe Yun, Principal Deputy Assistant Secretar y, Bureau of East Asian and Pacific Affairs, 26 April

20124

The World Factbook: Burma, Central Intelligence Agency, 20 June 20125Burma Operational Plan: Gender Annex, UK Aid, Department for International Development, 2011, p.2

6Interviewed for Excluded.


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when no external threat to Burma exists. Tis meansthat state-sponsored schools and hospitals aroundBurma are largely dilapidated and in serious need oreorm, orcing citizens, who are poor themselves, tosel-subsidize healthcare and educational projects.

Te lack o domestic educational and employmentopportunities or youth in ethnic nationality areasputs them in vulnerable and precarious situations.Burma, long reerred to as one o the worlds worstoenders or child soldier recruitment, has seen nopositive change in this area since the ocial disso-lution o military rule in 2011: the UN has veried

that in the rst 3 months o 2012 24 children wererecruited into the army7. Tis is a rate o 2 per week.

Children go to neighboring towns or urban citiesin search o employment to support their amilies,leaving them susceptible to orced labor, portering,and tracking. Tis is by no means an exaggeration,

as the worst orms o child labor are rampant throughout Burma. Oten, they go into neighbor-ing countries in search o economic prospects. A study by the World Health Organization (WHO)showed that the majority o cross border migrants were youth rom rural areas with little to no ormal

education8.

Te chronic problem o youth with shattered hopes is one in dire need o worldwide action and atten-tion. An overwhelming 90% o youth are unemployed in Burma. Aung San Suu Kyi has reerred tothe soaring youth unemployment rates as a time bomb that threatens the uture o Burma9. Restlessand hopeless youth who do not realize their potential, and are not given a chance to succeed, otenturn to a lie o drug use, crime, and gambling. A report by Kachin Drug Watch (KDW) shows thatillegal drug use among youth aged 14-25 has been increasing in northern Kachin state, concludingthat one o the main reasons or the increase is a high unemployment rate. According to KDW, youthturn to drug use because o a eeling o hopelessness: Young people eel they have no opportunities

to ulll their dreams or the uture10.

Foreign direct investment and development projects have the power to contribute to ending suchchronic youth unemployment and more importantly, give youth a uture to look orward to. Tiscan be done by linking projects with vocational trainings, creating educational opportunities, andprioritizing the employment o local youth rather than bringing in oreign employees. By promotingparticipation rights, relevant project and government authorities can be made aware o how revenues

7Two Burmese children a week conscripted into military, Jerome Taylor, The Independent, 19 June 2012

8

Fact Sheet: Myanmar and Adolescent Health, World Health Organization, January 20079Myanmar Dissident Cautions Perspective Investors, NY Times, 2 June 2012

10Getting Higher : Number of Kachin Youth Using Illegal Drugs is Rising, Kachin News, 24 August 2009

AnethnicKayanLahwiwoman


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6Excluded

gained rom a proposed development project can best benet the community, whether it is by buildinga school or technical training center.

Empowering youth is not just a moral imperative, but also makes political and economic sense. Burmais currently on the brink o a demographic transition to a young population with close to 30% othe population under the age 15 years11. Tese youth will one day be responsible or moving Burmaorward, and the best way to equip them is by providing educational opportunities and capacitybuilding so they are able to eectively and collectively manage the uture o Burma.

11Population under age 15 (percent) 2011, The Henr y J. Kaiser Family Foundation


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Recommendations

We, the ethnic nationality youth o Burma, make the ollowing recommendations in the hope that it

will promote the use o participation rights with the ultimate aim o setting a oundation or inclu-sive, sustainable development in Burma where benet is shared between all stakeholders, particularlyaected locals in ethnic nationality regions.

Each o the targets below is uniquely poised to ensure proper consultation processes are respectedin ethnic nationality areas. Te Myanmar National Human Rights Commission (MNHRC), orexample, has an obligation to protect the rights o all in Burma and has a key role to play in introduc-ing and keeping ethnic nationality issues on the national policy agenda, while ethnic nationalitypolitical parties have the authority to ensure aected locals are not short changed by a developmentproject. All o the recommendations aim to support Burmas adherence to globally accepted humanrights standards.

We urge the government o Burma to:

Codiy the provisions o ree, prior and inormed consent into domestic law with a priority givento Burmas expressed international commitments such as the UNDRIP and related ILO Con-ventions.

Halt development projects that take place in confict zones, and not pursue new ones in areas

o active confict or where there are ragile ceasere negotiations taking place, until meaningulparticipation rights are ully respected.

Work with the MNHRC to implement a grievance or complaint mechanism or the aectedcommunity that is accessible, transparent, independent, and impartial.

We urge ASEAN to:

Establish a regional policy that ensures ASEAN governments respect the rights o local peopleto FPIC.

Formally include FPIC rights into the Bali Declaration on Business and Human Rights.

We urge ASEAN Intergovernmental Commission on Human Rights (AICHR)to:

Carry out concrete activities to support its rst thematic study ocusing on Business and Human

Rights. Tis should include: allowing civil society a sae space to provide direct input in businessoperations that aect them, as well as supporting victims o development-related abuses.


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Provide concrete and binding guidelines to businesses and other stakeholders regarding partici-pation rights that refect progress made by the UN Principles on Business and Human Rights,including the Protect, Respect, and Remedy ramework.

We urge the World Bank to:

Provide and make public in advance a clear timeline and strategy or civil society consultationsregarding country strategy, and ensure the consultations are broad and representative o Burmasdiverse communities. Tis is in line with the Banks Good Practices, which states any Bank-nanced operation will solicit views and concerns o beneciaries and aected parties, and pro-

mote the active participation o such people in project activities.12

Build capacity o World Bank sta members in order to ensure sta is appropriately inormed

and able to implement requirements o the World Banks Indigenous Peoples Policy and interna-tional standards on participation rights, as enshrined in the UNDRIP.

Establish a consultative mechanism on the national level with the aim o providing ethnic na-tionalities a sae space to provide eective input on World Bank operations in ethnic nationalityareas.

We urge International Finance Institutes (IFIs), particularly the AsianDevelopment Bank and International Monetary Fund, to:

Ensure that meaningul engagement with aected ethnic nationalities and community stake-holders is in line with FPIC provisions and an essential element o all IFI country strategies inBurma.

We urge any current or potential companies seeking to work in Burma to:

Reer to the benchmarks developed by the Burma Environmental Working Group which in-

clude13:

Community grievances must be ully addressed in existing and proposed investments.

Civil society should be ree to ulll its role without ear o repression or abuse.

We urge the Myanmar National Human Rights Commission (MNHRC) to:

Immediately act on existing complaints in ethnic nationality areas and implement existing pro-tection mechanisms as a matter o urgency, in order to avoid urther marginalization and loss o

12

Involving Nongovernmental Organizations in Bank-Supported Activities, Banks Good Practices, World Bank, February 200013To read the rest of the BEWG benchmarks, please refer to: Burma Environmental Working Group Issues Benchmarks for Invest-

ment in Energy, Extractive and Land Sectors in Burma, BEWG press release, 22 March 2012


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lie and livelihood.

Enhance partnerships with civil society organizations and oster an environment avorable to the

development o independent civil society organizations, with an aim o empowering civil societyto monitor development initiatives in ethnic nationality areas.

We urge Burmas political parties to:

Voice community grievances, such as non-respect with participation rights, and bring them tothe attention o Parliament. Tis is in line with Article 25 o International Covenant on Civil andPolitical Rights (ICCPR) that states every citizen shall have the right and opportunity to take

part in the conduct o public aairs, directly or through reely chosen representatives14.

Ensure laws that target investments or businesses, such as the recent oreign investment lawalready signed by President Tein Sein, include clear provisions that protect the right to FPIC.

14 International Covenant on Civil and Political Rights, Office of the United Nations High Commissioner on Human Rights, adopted

by UN General Assembly on 16 December 1966.


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10Excluded

Introduction

This is a country that still has ongoing war. If youre going to a war-torn country to do business, you

might as well share responsibility in the peace process.

May Oo Mutraw, Karen activist15

Te publication o Excluded comes at atime when Burma is at an unprecedentedcross road. Ater decades o isolation,brutal dictatorship, and branding as apariah state, Burma surprised onlookers

by embarking on a rapid succession osmall-scale reorms beginning in 2011.In one ell swoop, the military regime wasocially dissolved, a nominally civiliangovernment was established, over 600 po-litical prisoners were released in 4 separatepresidential orders, Aung San Suu Kyibecame an elected Member o Parliament,and tentative cease-re negotiations arebeing brokered. Tese changes have earned

Burma legitimacy in the eyes o the international community and have paved the way or a suspensiono economic sanctions and the decision to grant Burma the prestige o chairing ASEAN.

Businesses rom all over the world are now scrambling to take advantage o this new open Burma.In 2011, more than US $20 billion poured into Burma in the orm o oreign investment, mainlyrom China and Tailand. Tis is more than all o the oreign direct investment rom the last 20 yearscombined16. Both large-scale and small-scale development projects are mushrooming throughout thecountry at a dizzying speed. Burma is all o a sudden sparking renewed interest and is reerred to as arising economic powerhouse and a global hotspot or investors.

Tese investors will be operating in an exceedingly risky environment where there is still no rule olaw, no independent judiciary, and human rights abuses in certain areas are perpetrated on a scale thatarguably amounts to crimes against humanity. Tose who stand to lose the most, however, are not theinvestors, but the ethnic nationalities who account or close to hal o the population and reside in theresource rich areas o Burma. Ethnic nationalities are orced to bear the brunt o development projectswhile receiving none o the benets.

All ethnic nationalities in Burma have a right to participate in decisions that aect them, includ-ing granting or withholding consent to a development project that takes place on lands they have

15Myanmar: Ending the worlds longest running civil war, Global Post, 5 May 2012

16How not to invest in Myanmar, Brian P. Klein, Foreign Policy, 25 July 2012

Villagers working alongside the Myitsone


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traditionally used or inhabited. Tese rights to ree, prior, and inormed consent are enshrined inBurmas expressed international obligations, including the UNDRIP and ILO (169). However, thereis not one known incidence in Burma where FPIC rights were ully respected. Tis report stronglyurges Burma to immediately integrate FPIC standards into national law to show its commitment topromoting and protecting the livelihoods o ethnic nationalities.

Adherence to the provisions o FPIC minimizes abuses that commonly accompany developmentprojects17. By being inclusive o the needs and concerns o aected ethnic nationalities, develop-ment projects have the potential to empower local communities through job creation, skills training,and revenue-sharing initiatives. Respecting FPIC is thus an integral tool to promoting sustainabledevelopment and poverty alleviation.

17These abuses include torture, rape, forced labor and extrajudicial killings of ethnic nationalities residing near a project.


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12Excluded

Statistics show that rural poverty rates, populated largely by ethnic nationalities, stand at a staggering

36% of the total population, and in some areas, such as in Chin state, the poverty level is an appalling

80%according to the UNDP18.

Ethnic nationalities and the resource curse

A tumultuous history

Te bulk o Burmas vast natural resources lie in remote ethnic areas, where control over the valuableresources between the government and ethnic armed groups has resulted in requent and protractedconfict. Burma is one o the most ethnically diverse nations in the Asian region, and arguably the

world, with over 100 ethnic groups, languages, and dialects. Ethnic nationalities make up some 35-40%o the nations population and are located in the 7 ethnic nationality states, where they constitute themajority19. When Burma rst emerged as a unied nation in 1886, a key point o contention wasthe ability o ethnic nationalities to administer the resources ound on their land. Tis issue remainsunresolved to this day. Each o Burmas largest ethnic nationalities has engaged in armed resistanceagainst the government, due mainly to disputes over natural resources, many o which continue today.

Tese ethnic and oten remote regions rich in resources also have minimal human rights protection.

18

Chin State Applies for Special Region Status, Unrepresented Nations and Peoples Organization, 2 September 2011, accessed 18June 2012

19Burmas ethnic nationalities, Canadian Friends of Burma, accessed 18 June 2012

Section 1

Ethnic Nationalities at Risk:

The Background


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Tose who should be protecting the civilians, such as local police and security orces, are oten the mainperpetrators o abuse. Numerous reports have documented that business ventures and developmentprojects in these areas have exacerbated this entrenched abuse and oten result in orced relocation,land conscation, portering, and at times even torture, rape, and extrajudicial killings.

Price o Progress

Ater decades o international isolation, the wave o suspensions o economic sanctions against Burmahas sparked a global rush to develop natural resources and invest in Burma. Now reerred to as a holygrail20 or oreign investors, Burma is said to supply 90% o the worlds rubies, have 98% o the worldsjadeite, the worlds 10th largest natural gas reserves, thousands o megawatts o untapped hydropowerpotential, and explored mineral reserves valued 11th in the world and the highest among Asiannations - boasting valuable minerals such as copper, nickel, gold, and silver. With rich, varied, and

largely unpolluted ecosystems, the last rontier o biodiversity in Asia also holds 80% o the worldslast teak orests, resulting in the destruction o orests and the livelihoods o those who primarilydepend on the orests or sustenance21.

Te lucrative potential dormant in ethnic areas, made even more attractive by their valuable geostra-tegic proximity to vibrant economies such as India, China, and Tailand, have recently catapultedBurma into a new identity as an emerging economic powerhouse. Te IMF predicted high growthpotential or Burma with an expected 6% increase in economic growth in January 201122. In the samemonth, one analyst went so ar as to say a tsunami wave o cash is heading towards Burma23. Tisexcitement to invest in Burma is evident in the eagerness o countries to lit economic sanctions whilethe human rights situation in ethnic areas has demonstrably deteriorated. In the 2012 annual report,Amnesty International accused the government o committing crimes against humanity in Kachinstate, where the unregulated exploitation o natural resources and mega development projects has haddisastrous consequences24.

Financial gains have not benetted most people

Burma is the one o the poorest countries in Asia, ranking dangerously low in the UN Human De-velopment Index with an overall poverty rate o 32%: over triple the rate o neighboring Tailand and

the highest level o poverty in ASEAN25. Ethnic nationalities are considerably poorer, however, withbroad strokes o the population teetering on the brink o starvation. Statistics show that rural povertyrates, populated largely by ethnic nationalities, stand at 36% o the total population, and in some areas,such as in Chin state, the poverty level is an appalling 80%, remaining one o the least developed

20 Stock exchanges battle for a piece of the frontier, Democratic Voice of Burma, 14 May 2012, accessed 18 June 201221 Stevens, Jane. "Teak Forests of Burma Fall Victim to Warfare." The Oregonian [Portland, Oregon]. March 16, 199422 Statement at the conclusion of the 2011 Article IV Mission to Myanmar, International Monetar y Fund, 25 January 2012, accessed

18 June 201223

Burma opens for business, Irrawaddy, 11 Januar y 2012, accessed 18 June 201224Myanmar : Annual Report 2012, The state of the worlds human r ights, Amnesty International, 2012

25Thailands poverty rate is 9.6%


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14Excluded

regions in the country according to the UNDP26.

able o poverty levels in ethnic nationality areas researched or this report2728:

Region Poverty % Food Poverty* % Development Project

Tenasserim Division 35-49% Not available Dawei deep seaport

Southern Shan State 44% 14% Paunglaung Dam

Kachin State 47% 17% Myitsone Dam

Chin State 81% 49% Teddim-Rih Road

Arakan State 41% 13% Sittwe deep seaport

Karenni State 38% 13% Cement actory

Mon State 21% 4% Kadaik Dam

Karen State 12% 2% Special Economic Zone

* Food poverty is considered the poorest of the poor and refers to those who are unable to access a nutritionally adequate diet.

Tis stands in stark contrast to the enormous income revenue generated rom development projectsthat take place on lands ethnic nationalities have traditionally inhabited or generations. I currentproduction rates and purchasing prices are maintained, Burma is set to make $2 billion per year justrom selling natural gas reserves or the next 40 years. Tis number is expected to increase by 60% iproduction expands as planned, potentially by 201329.

Te Yadana pipeline, running through several ethnic nationality areas to Tailand, and marred withhuman rights violations, has earned the Burmese government an estimated $4.6 billion between 1998and 200930. Te 50 some hydropower projects currently being built around Burma will generate anestimated $4 billion in annual revenue31. Te Shwe gas pipelines, traversing volatile and poverty-stricken Shan and Kachin areas into China, will earn the government $1 billion a year in revenuesor three decades. Tis highly protable scenario is expected to balloon in the coming years as oreigndirect investment increases. Aung San Suu Kyi reerred to this spike in oreign investment as recklessoptimism on the side o potential investors.

In Burma, the nations nancial dealings and development projects are never transparent or account-

able, a contributing actor to its earning o 2nd place in the world or corruption by ransparencyInternational, the same level as Aghanistan32. Te lack o transparency in business deals means that

26 Chin State Applies for Special Region Status, Unrepresented Nations and Peoples Organization, 2 September 2011, accessed 18

June 201227 All poverty statistics, unless otherwise noted, come from the United Nation Development Program repor t Targeting the Most

Vulnerable, 1 May 2008, accessed 18 June 201228 Number comes from data compiled by Thai-Burma Border Consor tium, Poverty Incidence in Southeast Asia Burma/Myanmar,

2010-2011,accessed 18 June 201229 Projected profits come from following ar ticle Despite reforms, Western oil firms avoid Myanmar, Aung Hla Tun, 24 November

2011, accessed 18 June 201230

Burmas Natural Resources Add Fuel to Conflict, Simon Roughneen, Irrawaddy, 25 July 2011, accessed 18 June 201231Attempts to boost development in Burma fuel conflict , David Myers, Deutsche Welle, accessed 18 June 2012

32Myanmars path to prosperity strewn with obstacles, Dane Bryant, World Politics Review, 8 June 2012


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the lucrative prots are not tracked and those who are not directly involved in the project have no ideawhere the prots are going. It is clear, however, that the money is not going towards social spendingsuch as improving the livelihoods o surrounding communities by building hospitals, schools, orpromoting job generation.

Human rights consequences

o development

Te negative impacts o development projects,which most oten include rape, orced labor,portering, land conscation, and orcedevictions, are not isolated to the immediatevictims, but have a ripple eect on succes-sive generations o ethnic nationalities. Forexample, whenever there is orcible displace-ment, those who are orced to move otenhave enormous diculty in nding a suitablearea where they can continue to practice theirtraditional means o subsistence. For manyethnic nationalities, this means some orm o

agricultural production. However, victims o orced relocation are oten made to live in barren areasor on the side o a highway, resulting in the loss o their primary means o economic activity. In oneinstance, there is a growing concern that displacement due to the damming o important rivers inKarenni State will lead to the extinction o the Yintale - a sub-group o the Karenni ethnic group whonumber around 1,000 and subsist along the banks o the rivers33.

A civil matter: ASEAN Investment in Burma

The Myanmar government is not yet in a position to enforce ethical business laws, so the international

community, including ASEAN, and civil society groups must take on a role of watchdog. As a minimum,

the U.S and other governments must enforce the same standards they do at home on entities from theirrespective countries doing business in Myanmar.

Eva Kusuma Sundari, ASEAN Inter-Parliamentary Myanmar Caucus president34

ASEAN nations have been widely complicit in bolstering the military regime in Burma and sponsor-ing development projects in Burma that are accompanied by human rights abuses. While broad strokeso the international community responded to the brutal crackdown o peaceul protestors in 2007 byimposing sanctions, ASEAN members were continuing to keep key players o the regime afoat by

33

Karenni State: Dam Construction Threatens Community, Unrepresented Nations and Peoples Organization, accessed 18 June2012

34Asean MPs urge caution in Burma investment, Mizzima, 13 July 2012

Kayan cultural celebration


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16Excluded

investing in sectors that essentially served as the regimes critical lieline. Sanctions did not really haveany aect on ASEAN investment in Burma. For the past decade, the main source countries o oreigninvestment have been mainly rom ASEAN members, and almost exclusively rom Asian countriesthat have dismal domestic human rights records.

ASEAN countries, particularly Malaysia, Singapore, and Tailand, have a history o being implicatedin serious human rights violations with regards to business conduct in Burma. Tis is partially due toASEANs explicit policy o non-intererence. Tis policy essentially calls or member states to turna blind eye to human rights abuses, reerring to it as a domestic matter. ASEAN countries care littleor regional human rights enorcement and oten take overly simplistic and dismissive notions on theissue. For example, ASEANs expectation that Burmas admission to the regional bloc in 1997 wouldprompt the military generals to behave more responsibly turned out to be gravely wrong as repressionagainst activists and oppression increased signicantly.

Singapore is Burmas number one investor or the hotel and tourism industry, a sector that is inex-tricable rom the previous military junta. Te rst country to broker business ties with Burma aterthe brutal crackdown on 1988 demonstrations was Singapore. In the mid-1990s, Singapores head ooreign trade eectively stated it is uninterested in human rights in saying Singapores position is notto judge them (Burma) and take a judgmental moral high ground35.As o December 2011, Singa-pores investment in Burma amounted to US$2 billion, with most invested in hotels and tourism, realestate, industrial estates and oil and gas36.

Malaysia has been primarily investing in Burmas lucrative oil and gas sector. Several complaints have

been lodged against Petronas, a Malaysia state oil rm that is involved in a $650 million Yetagungas eld development project started in the 1990s. Te project has been implicated in human rightsabuses such as orced labor and rape. In response to the accusations, Petronas issued a terse ocialstatement that read, It has been amply demonstrated that respect or human rights will inevitablyincrease, and entrenched habits get neutralised, whenever a country achieves good economic andsocial progress37. Tis overly simplistic response is the only action taken by Petronas in accountingor documented human rights abuses to date.

Until 201138, Tailand was Burmas number one oreign investor: between 1988 and 2009 it investedclose to $7.5 billion, accounting or 47% o the total oreign investment in Burma39. Te majority o

Tai investment goes to building major acilities that harness Burmas natural resources and exportthem to Tailand in order to satiate growing domestic demand or electricity and power. Tailand hasbeen the driving orce behind major hydropower dams along the Salween River such as the asangDam. Te Tai government has earmarked $6 billion USD or the asang Dam alone.

Tailand has poured the most signicant amount o money into Burmas gas and oil sector through

35 Singapore a friend indeed to Burma, Sydney Morning Herald, Eric Ellis, 1 October 2007, accessed 18 June 201236

Singapore hits at increased role, Myanmar Times, Aye Thidar Kyaw, 20 February 201237

UK Group to lodge complaint against Petronas to Suhakam, Malaysiakini, Yin Shao Loong, 30 April 2001, accessed 18 June 201238Thailand has been surpassed by China in 2011 when it unveiled foreign investment of $20 billion USD.

39Thai-Burma Relations, Arakan Rivers Network


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collaborations with the Burma state-owned P Exploration and Production (PEP). About20% o Tailands annual energy consumption is sourced rom Burma40. Tailand collaborated withPEP in the controversial Yadana Pipeline that transports gas rom the Andaman Sea o the coasto Mon State. Tis project was the previous military regimes largest single source o income. Tepipeline has been mired in controversy because pipeline security orces were implicated in abuses thatare trademarks o the previous military regime, including conscripting villagers to severe orced laborprojects, such as portering heavy loads or military patrols, rape and torture.

According to Sulak Sivaraksa, a prominent Tai activist who protested the Yadana Pipeline, thepipeline project has not provided benet or local people both Tai and Burma. It is a shameulproject. Te Tai government has to pay $400 million per year to the Burmese government and theyuse this money to abuse and threaten ethnic people in their country41.

Future ASEAN investment repeat o past?

And those investors [interested in areas of oil and gas, mineral and timber] are going to strip the country

bare, leave the money in the hands of a few top people and give little back to the general population.

Steven Dickinson, American lawyer

2012 New Myanmar Investment Summit organized by Centre for Management Technology, a

Singapore-based firm42

Tere has been little indication that ongoing investments by ASEAN member states will be anydierent rom the past. Te act that Burma has been awarded the role as ASEAN chair in 2014amidst a deplorable human rights situation, including alleged crimes against humanity, shows thatASEAN members are not prioritizing investment in projects that alleviate poverty, promote sustain-able development, and protect basic rights.

In April 2012, Petronas was awarded onshore blocks in the country to explore energy elds. In thesame month, Singapore led a delegation o 50 businessmen to look into potentially investing in thehotel and tourism sector. Tere is concern that Tai investment will ollow the same road o environ-mental destruction it has in the past: Tai companies decimated teak orests in eastern Burma in the

1990s, and these same players, such as Italian-Tai Development Corporation, are now involved inthe Dawei deep seaport project. Dawei locals have expressed ear that their unsullied region will nowbecome polluted. Accounting or the social and environmental impact o a business or country shouldnot be let to sel-regulation, especially when the majority o these projects occur in areas inhabited byvulnerable and marginalized ethnic nationalities.

40Same as above.

41

Yadana Pipeline Protest Case Dismissed,by Sai Silp, 18 August 200642Investment conference draws mixed reaction from crowd, Victoria Bruce, Myanmar Times, 25 June 2 July 2012, volume 32, no.

632


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18Excluded

All roads lead to Burma

ASEAN has highly ambitious plans to transorm a patchwork o disparate nations into a seamlessEuropean Union style powerhouse by 2015. I ASEAN operated as a single economic entity, it wouldbe Asias 3rd largest economy, boasting a GDP o $1.8 trillion dollars, and would act as a lucrativebridge between economic tigers like China, India, as well as the Middle East and the Pacic. Noisethat the global center o gravity is shiting to Asia is prompting ASEAN to rebalance and accelerateits long-held dreams o regional economic integration.

Te rst step to turn ASEANs dream into reality is through the establishment o regional connectiv-ity networks so that goods and people can travel easily within ASEAN and beyond. Te ability totrade is vital to the economy o ASEAN. Already ASEAN has unveiled a master plan that includesthe establishment o an ASEAN ransit Highway and a regional gas grid.

Te missing piece in completing this puzzle is Burma43.

Many o the overland and sea transport linkages that aim to open up surrounding dynamic economiesto ASEAN would have to go through Burma. Te quest or ASEAN integration is thus a large drivero current development projects in Burma. Tis includes the Chin-based eddim-Rih Road and theDawei deep seaport, which aims to connect Burma to Tailand by a series o highways and sea routes.

ASEAN claims less-developed countries like Burma stand to benet the most through inrastructuredevelopment and the opening up o remote inland areas. But the government o Burma and the

people o Burma are not the same. Respecting participation rights is essential i the people, includingethnic nationalities, are to realize the benets o development projects.

Concept of Free, Prior, and Informed Consent

Free, prior and informed consent is essential for the [protection of] human rights...in relation to major

development projects44.

Rodolfo Stavenhagen, former UN Special Rapporteur on the situation of human rights andfundamental freedoms of indigenous peoples

43 Burms is referred to as a missing link several times in the report: Master Plan on ASEAN Connectivity, by ASEAN Secretariat,

January 201144

Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, RodolfoStavenhagen, submitted in accordance with Commission resolution 2001/65 (Fifty ninth session), U.N. Doc. E/CN.4/2003/90,

January 21, 2003, para 66


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We all have a right to ully and eectively participate in decisions that may aect us. Meaningulparticipation in decision-making processes enables control over their own destinies on conditionso equality. As stated by UN Special Rapporteur on indigenous peoples James Anaya, Without thisoundational right, human rights, both collective and individual, cannot be ully enjoyed45. Participa-tion rights is thus essential to the realization o all human rights and reedoms, and is a undamentalcorollary o a myriad o human rights standards, particularly the right to economic, social, and culturaldevelopment and right to sel-determination. Te latter includes the right to ull sovereignty over all

natural wealth and resources ound on landstraditionally inhabited by a particular ethnicgroup.

What is FPIC?

Consent is generally understood to be reewhen it is not accompanied by threats, harass-ment, or unequal bargaining power. Tat it isprior means that consent is to be soughtsuciently in advance o any nal decisionsmade regarding the proposed project, andespecially well beore any activity, such asconstruction, begins to take place. Consentis inormed when all relevant inormation,including both the anticipated negative and

positive impacts o a project, are ully disclosed in a manner that is easy to understand and accessible.

Te interpretations o what constitutes consent have varied, but it is accepted that it is the right tovoluntarily say either yes or no to a project, i.e. granting or withholding consent. However this is notthe same as the right to veto, which is eectively the power to prohibit a course o action rom takingplace. For the right o consent to have any meaningul impact on the lives o aected individuals,it must also include their right to stop a potentially negative project rom taking place in their area.Unortunately, whether or not consent includes veto power has been the most controversial aspecto participation rights. Te only legally binding interpretation o FPIC, the UNDRIP, has remainedsilent on the issue.

FPIC is a universal standard

Regardless, the right to FPIC has achieved near-universal acceptance in the international community.Te provisions outlined in FPIC have been reerred to as a new standard or code o conduct orbusinesses and has already infuenced how businesses conduct their work, especially in regards tonatural resource extraction and development projects. FPIC provisions have been reerred to in courtdecisions at both the domestic and international levels. At least one Supreme Court, as well as a

45Report of the Special Rapporteur on indigenous people, James Anaya, Addendum Report on the Situation of Human Rights of

Indigenous Peoples in Brazil UN Doc A/HRC/12/34/Add.2 (26 August 2009) at para. 22.

A gathering of a group of local activists involved in

the anti-Myitsone dam campaign


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20Excluded

number o UN bodies, have reerred to FPIC as an international standard46.

Amazon Watch, a respected NGO that works towards advancing the rights o indigenous people,

released a report that made the strong case that respecting the right to FPIC is not just a moralimperative, but also a business necessity or corporations to avoid nancial risk, reputational damage,divestment campaigns, operational delays due to social unrest, multi-billion dollar legal liabilities, andloss o license to operate47. Parallel to this is a report released by the World Bank which concludedthat ree, prior, and inormed consent o aected people is a necessary condition i an extractiveproject is to have any positive impacts on sustainable development and poverty alleviation. Meaning-ul community stakeholder participation became mandatory in the World Bank in 199248.

FPIC promotes and protects a spectrum o human rights

Development projects are oten accompanied by negative consequences such as orced displacementand loss o employment. States and corporations that abide by FPIC regulations would enable aectedcommunities to promote sustainable alternatives to destructive development projects, as well as secureappropriate compensation or any land, negotiate avorable relocation terms, secure ongoing supportor the communities equitable development - including access to education and job opportunities,and ensure that any decisions made are legally binding. Aected communities can also use FPIC asleverage or negotiating revenue and benet-sharing on air and enorceable terms.

While the scope o this report is ocused on development projects in Burma, FPIC is broadly ap-plicable to any key decision that may have a direct or indirect impact on a group o people. Te UNDepartment o Social and Economic Aairs identied close to 20 key areas where FPIC should berequired. Besides developmental planning, they include: entry o military in a new area; new settle-ments in indigenous lands and territories; human development and education; cultural heritage andexpression; and legislative and administrative measures. It is clear then that FPIC is largely seen asa primary tool to promoting and protecting a spectrum o human rights, especially or historicallyvulnerable and marginalized people.

Ensuring FPIC is fully respected

Tere are certain steps that must be initiated by businesses or governments responsible or imple-menting a project to ensure the ull spectrum o FPIC rights are respected. Failure to do so violatesa constellation o basic human rights that go beyond FPIC rights. Tis section is meant to provideguidelines that the government o Burma, partner countries, and corporations must ollow beore

46 Maia S. Campbell & S. James Anaya, The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure

Indigenous Land Rights, 8 Hum. Rts. L. Rev. 377, 379 (2008).47

Why companies need to operate with free, prior, and informed consent of indigenous peoples, press release by Amazon Watch

on 3 February 2011, accessed 18 June 201248Free, Prior and Informed Consent and the World Bank Group, Robert Goodland, Sustainable Development Law & Policy, Vol. 4,

Issue 2, p. 61


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making any decisions on a development project in a particular territory, including Burma49.

Step 1: FPIC Investigative Review

An FPIC Investigative Review is initiated, along with relevant rights-holders, by those responsibleor the project, such as the government, partner countries, and corporations. Te FPIC InvestigativeReview must include:

A detailed description o the proposed project.

A description o all rights-holders that are to be impacted by the project, along with how theywish to be engaged in the FPIC process.

A description o applicable legal rameworks, including relevant domestic, regional, and inter-national mechanisms. A review o the legal status o the land and how it has been ormally orinormally used by rights-holders.

Assessments o social, cultural, and environmental impacts on rights-holders by the proposedproject that initiated the FPIC process, and how these impacts are to be minimized or mitigated.

Te Investigative Review should be ongoing until the outcome is agreed upon by all parties. A com-munity type orum that allows rights holders to air their concerns and speak about the project on theirown terms, including how natural resources are traditionally allocated, should also be included in theReview.

Step 2: FPIC Proposal

Once the FPIC Investigative Review has been mutually agreed upon, an FPIC proposal is to bedrawn up by relevant decision makers in consultation with rights-holders that include:

Where and how consultations will take place.

How decisions will be taken and recorded by relevant rights-holders.

Te geographic area that the consultations will include.

Whether there will be external monitoring o the FPIC process, such as by independent observ-ers, UN bodies, national human rights institutions, or other monitoring agencies.

How oten the FPIC process will be reviewed by decision makers and rights-holders in order to49

Information sourced from draft UN-REDD Guidelines of Free, Prior, and Informed Consent dated 1 December 2011


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22Excluded

ensure the agreed-upon conditions are being upheld.

Framework or a mechanism that allows rights-holders to voice concerns throughout all stages o

the FPIC process and adequately seek recourse i necessary.

Step 3: FPIC Process

Te FPIC process can only proceed once all relevant parties have agreed upon the terms in a culturallyappropriate way. It is important to bear in mind that the proposed project cannot begin until anFPIC Investigative Review has been undertaken and the FPIC process has received approval rom allstakeholders involved in the consultations.

I there is any question on the validity o the FPIC process, an external institution or agency shouldlaunch an independent evaluation to ensure the process was carried out in line with the proposedoutline.

Legal basis for claiming FPIC rights

Te UNDRIP, which Burma voted in avor o, provides legal protection or all indigenous peoplesin Burma, especially in regards to their right to ree, prior, and inormed consent in any decision thataects them, directly or indirectly. Tis section is meant to show that Burmas ethnic nationalitiesqualiy as indigenous and are thus able to legally claim FPIC rights set out in the UNDRIP.

What is an ethnic nationality?

Te term ethnic nationality is very specic to the Burma context and is a term used to group themajority o Burmas ethnic nationalities into approximately 135 national races50. As elaborated below,status as an ethnic nationality comes with many political benets in Burma. Everyone surveyed orthis report alls under an ethnic nationality group. Although all the ethnic nationality groups in thisreport can qualiy as indigenous and thereore claim the right to FPIC, the report uses the term ethnic

nationality or consistency.

Tere is no legal denition or an ethnic nationality or an indigenous person. While there are inter-national working denitions that attempt to clariy the dierence, it is rst important to understandwhy a group would want to claim ocial indigenous status over nationality status or vice versa.

The rights o indigenous peoples

50

The State Law and Order Restoration Council, which ruled Burma beginning in 1988, referred to these 135 national races butnever produced a reliable list of names. Please refer to Ethnic Groups in Burma: Development, Democracy, and Human Rights, by

Martin Smith in collaboration with Annie Allsebrook, Anti-Slavery International, 1994, p. 15 for more information .


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From the perspective o international law, indigenous peoples are accorded with broader and morerobust protections than ethnic nationalities. For example, the only international document that en-shrines the right to ree, prior, and inormed consent, the UNDRIP, protects indigenous populations.In general, indigenous groups can claim a wider array o specic rights especially in regard to land,sel-government, and participation in shaping policy and projects that aect them.

When acting collectively, indigenous peoples have the power to politically lobby and transorm, orexample, how multinational corporations do business on lands they have traditionally owned andused. Status as indigenous people is what allows them to articulate their concerns at an internationaland legal level. Sel-ascribement as indigenous is thus oten seen as part o a broader strategy to claimsuch rights.

o claim indigenous status, one must rst sel-identiy as indigenous while also meeting the criteria

set out by international working denitions, such as those outlined by the ormer UN Special Rap-porteur on Discrimination against Indigenous Peoples Jose Martinez Cobo. Many ethnic nationalitygroups in Burma could in act qualiy as indigenous and would thereore be able to claim all theassociated rights that accompany indigeneity, including the right to ree, prior and inormed consent,i they were to choose to seek ocial status.

Why identiy as an ethnic nationality?

Not many in Burma have sought ocial status because, in general, choosing to identiy as an ethnicnationality rather than indigenous is a politically strategic move, in Burmas very specic context.

Seeking indigenous status through ormal channels might open the door to heavy criticism by gov-ernment authorities and ellow ethnic nationalities, resulting in urther marginalization. Nationallaw and the 2008 Constitution are underpinned by the principle o unity in diversity and ethnictogetherness. Tese were the principles Burma was ounded on in 1948. Tereore, there are manylegal protections and avenues or national political participation that are available to members oBurmas ocial ethnic nationalities, but not or others. Ethnic nationalities who attempt to claimindigeneity ace the risk o losing their ethnic nationality status.

Loss o this ocial recognition would have several adverse eects. Te rst possible one is loss ocitizenship. Under Burmas Citizenship Law rom 1982, ull citizens are those belonging to one othe ocial 135 national races51 who lived in Burma beore the British conquest in 1823. I a groupdecided to seek indigenous status, it can be seen as a breakaway rom the national races and thus, allthe associated privileges such as citizenship.

Similarly, the 2008 Constitution states only national races are allowed to participate in the nationalpolitical system52. Tis includes becoming Members o Parliament as well as the right to vote to elect

51The government of Burma officially recognizes 135 ethnic groups, referred to in Burma as national races. These national races

form the 8 major ethnic nationalities.52As an example, Article 15 of the Basic Principles of the 2008 Constitution states, For national races with suitable population,

National races representatives are entitled to participate in legislature of Regions or States and Self-Administered Areas con-


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24Excluded

Parliamentary representatives o their ethnic nationality or their region or state Parliament.

Ethnic nationalities are accorded with a valuable political platorm to voice their concerns and enact

legislative change that is not available to non-ethnic nationalities. For the rst time in decades, ethnicnationalities are carving a space or themselves in the national political discourse. For example, reveredShan leader U Khun Htun Oo is now an elected Member o Parliament and is thus well poised toarticulate the needs and desires o the Shan in a politically concrete way.

Tese steps are critical to any ethnic nationality group that has long sought sel-determination withina uture ederal union o Burma. Tis issue is o particular importance now that the government oBurma is attempting to orge a path towards national reconciliation by brokering ceasere negotia-tions with ethnic resistance groups throughout the country. Opting to choose indigenous status inthis context can threaten ragile legal and political advantages, and is a reason why ethnic nationalities

would choose to reer to themselves as ethnic nationalities.

Anyone not part o an ethnic nationality group would ace diculty in seeking any o these rights.A group who seeks indigenous status risks losing a coveted role as an ethnic nationality and allthe related benets, not to mention the divisions in the ethnic nationalities community it mightprovoke. So while many o Burmas ethnic nationalities can identiy as both an ethnic nationality andindigenous, there is an overall sense that using the term ethnic nationality is the most strategic as itaords them the most amount o rights under national law.

Burmas ethnic nationalities can qualiy as indigenousTe standard working denition o indigenous peoples is the one set by ormer UN Special Rap-porteur Cobo. According to Cobo, indigenous peoples must exhibit a combination o our actors todetermine indigenous status. Tese actors include historical continuity; commitment to preservingethnic identity; distinct dierences rom the prevailing sectors o society; and ormation o non-dominant sectors o society.

Descendants o a population who inhabited a region at a time o conquest or colonization and retainsome o their political, social, and economic institutions is one way o exhibiting historical continu-

ity. Burmas ethnic groups had their own system o governance that were distinct rom the centralBurmese governments system. Tese ethnic political systems lasted well into the 20th century andsome vestiges are still present to this day. For example, the Chin, Kachin, Karen, Karenni, and Shanwere all practicing their owxn eudal systems with their own respective titles, such as Ram-Uk orDuwa, until the establishment o the Union o Burma in 194853.

Some o the political systems, such as the Sawphya (prince) centered one adopted by the Karenniand Shan, had no history o paying tributes to any o the Bamar monarchs. Te emergence o brutalsocialist-military dictatorship led by General Ne Win in the 1960s sought to eliminate ethnic sel-rule

cerned. Constitution of the Union of the Republic of Myanmar (2008), p.553Designing Federalism in Burma, edited by David C. Williams and Lian H. Sakong, Peaceful Coexistence: Towards Federal Union of

Burma, UNLD Press, 2005


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and bring all o Burma under one party. Ethnic nationalities continue to struggle or the right to sel-government and in the process, have maintained elements o their political, cultural, and economicinstitutions that existed long beore British annexation in the late 19th century to this day.

Preserving culture has its diculties in Burma, as ethnic groups have long been treated as second-class citizens by successive Burmese governments. Ethnic nationalities have had their linguistic andcultural diversity denigrated rather than celebrated, and are orced to choose between absorbing themainstream Bamar culture or risk social marginalization.

Many times, there is not a choice. Ethnic nationalities have little opportunity to preserve and developtheir ethnic identities. For decades, teaching ethnic languages and ethnic history has been prohibited,and social cultural development or ethnic nationalities is severely limited. Not practicing the dominant

Buddhist religion is also a risky endeavor, as persecution against Chin Christian nationalities, orexample, has been well documented.

Ethnic nationalities still nd novel ways to articulate, protect, and develop their ethnic identity withinthe constraints o an oppressive and predatory state structure, showing their high level o commitmentto cultural preservation. Te New Mon State Party (NMSP) implemented a state-wide educationalsystem whereby the main objectives were to preserve and promote Mon literatureMon cultureand history, to not orget the Mon identity54. Tis is a direct response to the government educationalsystem that is oten seen by ethnic groups as assimilationist because it pushes ethnic nationalities tolearn and speak Burmese as well as learn only about Burmese culture. Whether it is starting a cultural

preservation institute, such as the Karen History and Culture Preservation Society, or passing on theethnic language to the next generation, ethnic nationalities in Burma have in their own way resistedthe orces o assimilation.

Lastly, Burmas ethnic nationality groups account or about 30% o the total population and thusconstitute non-dominant sectors o Burma society. Te dominant ethnic group, the Bamar, comprisestwo thirds o the population in Burma, are Buddhist o the Teravadda tradition, speak Burmese, andmainly reside in the Irrawaddy basin. Tey have a distinct history and cultural practice than the otherethnic nationality groups.

The Right to Participate in Law and Policy in Burma

In Burma, important decisions surrounding development projects are made behind closed doors, awayrom the reach o the law. Every step o the way, rom preliminary planning to completion o theproject, relevant discussions are normally held solely between government authorities and corporateexecutives. While it is accepted international standard that no decision directly aecting a communityshould be taken without their prior and inormed consent, successive regimes in Burma, including thecurrent Tein Sein administration, have done the exact opposite.

54Mon Nationalist Movements: insurgency, ceasefires, and political struggle , Ashley South, Mon Unity League, January 2008


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26Excluded

Although Burma has approved a small patchwork o major international instruments that enshrine theright to ree, prior, and inormed consent, the majority are not legally binding. Further, it is not clearas to how the human rights standards articulated in these instruments have been incorporated intonational law, i at all. For human rights standards to be eective, they must be armatively integratedinto national law. It is worth noting that a number o international treaties specically mandate theadoption o domestic laws as part o their implementation ramework55. More, the Vienna Declarationand Program o Action, a key declaration that outlines approaches to strengthen human rights workaround the world, explicitly urges governments to incorporate international standards into nationallaw as an eective way to saeguard and protect human rights56.

Until there are undamental legal protections addressing the right o local inhabitants to grant orwithhold consent and the rule o law is rmly implemented, these wide gaps in the law will continueto allow state authorities and corporations across Burma to drive villagers into precarious situations

without any orm o protection.

National Law in Burma

Te draconian legal system has not changed with Burmas transition to democracy, as evidenced byBurmas ranking in the bottom 5% o countries around the world with respect to the rule o law inevery year since 2002 by the World Banks World Governance Indicators project57. Burma has alsobeen labeled as having the worlds worst legal system or doing business, where confict, authoritarian-ism, and instability are the main political orces, according to a 2012 report by risk analysis ormMaplecrot58. Te rm goes on to reer to Burma as a nation o extreme risk or oreign corporationsgiven the complete absence o legal protections59. Burma has held this dismal distinction or the last5 years.

Although Burma has no laws that enorce participatory decision-making, a small number o lawsappear to protect the right o local inhabitants to own the land they have traditionally owned, culti-vated, inhabited, or used or a period o time. Tese laws include the 1963 Law Saeguarding PeasantsRights, the 1963 enancy Law, and the Land Nationalization Act. With that said, these laws arevirtually never enorced in Burma. When they are, the laws are twisted in such a way as to justiynationwide land grabs. Land ownership in general has been vague since the 1960s when the socialist

regime sought to nationalize most lands. Te erosion o the rule o law means land ownership dependsprimarily on political connections and money.

Te 1963 Law Saeguarding Peasants Rights is one o the ew national laws that aim to saeguardagainst land conscations and orcible evictions60. Te law broadly denes a peasant as anyone who

55 One such example is the Convention of the Rights of the Child, ratified by Burma.56 Vienna Declaration and Program of Action, UN General Assembly, 12 July 1993, A/CONF.157/2357 Rule of Law, The Worldwide Governance Indicators (WGI) project, The World Bank Group58

Five key business risks in Myanmar, 7 February 2012, Maplecroft, referring to Q1 Country Risk Report59

Weak rule of law in Myanmar, S Sudan, Turkmenistan, Libya, Angola and Iraq poses significant risk to oil and gas firms newreport, Maplecroft, 8 March 2012

60Housing, Land, and Property Rights in Burma: the current legal framework, Scott Leckie and Ezekiel Simperingham, Displacement


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has worked agricultural land as their primary means o livelihood, and outlines actions that would bedeemed unlawul, even i decreed by a civil court. Tese include conscation o agricultural land, courtorders prohibiting peasants to enter agricultural land, or the arrest or detention o a peasant in relationto the above circumstances. Whenever the government o Burma directly conscates or enables theconscation o agricultural land, it is blatantly in direct violation o the 1963 Peasant Rights law.

Te Land Nationalization Act and 1963 enancy Law are both examples o legislation which wereoriginally intended to protect villagers by ensuring they owned the land they worked on, but havesince been perverted to serve the interests o corrupt government ocials and corporations. Te LandNationalization Act, or example, sets out to give armers ownership o their land in small holdings.However, subsequent amendments distorted the intended aim and now allow state authorities todrain resources rom the villagers while pocketing the benets.

In the example o the Land Nationalization Act, the perversion is largely because the government isgiven vague and broad powers over the use and distribution o the land. Tus, although there are basiclaws that saeguard against arbitrary land conscations and evictions, they mean nothing consideringBurmas unwritten policy o selective enorcement that primarily protect the interests o governmentocials over the undamental rights o Burmas people.

In 2011, the debate over land reorm was brought to a peak with the submission o two proposedland laws into Parliament, the Farmland Bill and the Vacant, Fallow, and Virgin Land ManagementBill. Te laws have received criticism rom concerned armers and land rights activists in Burma tointernational heavyweights such as Joseph Stiglitz, academics at Harvard Universitys JFK School

o Government, and UN-Habitat. Te main concern is that the proposed land laws will not protectarmers rom wide scale land grabs.

Tere are wide gaps in the proposed laws, notably, the lack o reedom o crop choice, lack o clarity odenitions, including what circumstances allow compulsory land acquisition. In its current orm, theVacant, Fallow, and Virgin Land Management Bill leaves lands that are regularly allow susceptibleto acquisition by large scale rms. Te UN-Habitat raised concern that, the proposed bills wouldlegalise and extend many o these land acquisitionsand create a large class o rural landless, leadingto acceleration in disparities in wealth and incomes61.

Also, there has been no genuine consultation with civil society and community stakeholders duringthe drat legislation process. In a report ater visiting Burma, the head o Land, enure, and PropertyManagement at UN-Habitat, Dr. Augustinus, wrote that successul implementation o any land billrests on prior actions62, including consultations. Farmers in Burma, not being consulted on theirconcerns, are instead making their voices heard, and in January 2012, a letter signed by 1,421 armerswas sent to the President63. Te letter outlines seven points they eel need to be addressed in theproposed land laws, such as the right to own armland and ability to solve land conficts through

Solutions & HLP Institute, p. 565, 200961

More warnings over land bills, Thomas Kean, Myanmar Times, 20-26 February 2012, volume 31, no. 61562Same as above

63Farmers seek landbill changes, by Ei Ei Toe Lwin, Myanmar Times, 27 February 2012


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28Excluded

courts. Land reorm is seen as critical to achieving inclusive and sustainable development as two thirdso the population is subsistence armers.

Even i the national law was brought up to code, the prevailing un-rule o law in Burma makes theenorcement o any relevant legal saeguards and provisions exceedingly dicult. Central conceptsto the rule o law, including the establishment o an independent judiciary, and ensuring no one isexempt rom the law - including government ocials, are distressingly absent in Burma. Secret courtsand detention centers abound and local authorities continue to use bullying tactics with impunity.Aung San Suu Kyi issued a stern warning to potential investors at the May 2012 World EconomicForum when she stated, Even the best investment laws would be o no use whatsoever i there are nocourts that are clean enough and independent enough to be able to administer those laws justly. Tisis our problem: So ar we have not been aware o any reorms on the judicial ront64.

ASEAN policy on business and human rights

ASEAN has been embarking on overdue initiatives to remind businesses o their responsibilities torespect human rights regardless o the national laws and human rights obligations o the country theyare operating in. Tis is important because inadequate national laws are oten used as justications orbusinesses to ignore human rights. With eective regulation and guidance, however, businesses canplay an important role in protecting and promoting human rights in the ASEAN region.

Perhaps the most powerul initiative taken to anchor businesses in human rights law is the Bali Dec-laration, born out o a landmark meeting among Southeast Asian national human rights commissionsand UN experts. Te Bali Declaration is heavily infuenced by the main theme o the meeting: thatcorporate compliance with human rights is a global standard and expected code o conduct, regardlesso where the business enterprise operates.

Specically, according to the Declaration, the human rights responsibility o businesses exists in-dependently o States abilities and/or willingness to ulll their own human rights obligations, anddoes not diminish those obligations. And it exits over and above compliance with national laws andregulations protecting human rights65. It is expected that the development o the Bali Declaration,

reerred to as a regional human rights standard, will address dangerous gaps between human rightsgovernance and businesses that have arisen due to the rapid rise o emerging markets in SoutheastAsia.

Te Declaration ocuses on ensuring the rights o ethnic nationality and local inhabitants situatednear development projects are respected, while acknowledging the communities right to develop-ment and the positive role businesses can play in improving their situation and welare. Both Statesand business enterprises have a responsibility to protect the rights o those aected by developmentprojects, especially in regards to their right to own lands they have long inhabited, occupied, or used,

64

Democracy leader cautions investors against reckless optimism in Myanmar, Thomas Fuller, NY Times, 1 June 201265Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and

other business enterprises, John Ruggie, Human Rights Council, Seventeenth Session, 21 March 2011


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and importantly, their right to grant or deny consent to any projects that aect them.

While not legally binding, the Bali Declaration has a strong oundation in international human rights

standards such as the Edinburgh Declaration, which sets a roadmap or national and internationalmonitoring o corporate compliance with human rights law. Te Declaration is also deeply rootedin the ormer UN Special Rapporteur John Ruggies Protect, Respect, and Remedy ramework, alandmark set o guidelines that is based on 3 pillars: the states responsibility to protect against humanrights abuses committed by non-state actors, such as businesses; the corporate responsibility to protecthuman rights; and the importance o acilitating remedies to any problems that arise, either judicial ornon-judicial. Tis ramework was unanimously adopted by the UN Human Rights Council and hasalready proved infuential in policy reorm.

A second welcome initiative is the announcement that the rst thematic report by the ASEAN In-

tergovernmental Commission o Human Rights will ocus on business and human rights. Accordingto one o the Commissioners, the main goal o the report is to develop an ASEAN Guideline that isully compliant with the UN rameworks, especially the Protect, Respect, and Remedy Framework orBusiness and Human Rights and the Guiding Principles or Business and Human Rights66.

It is expected that these two initiatives will raise the human rights bar or businesses seeking tooperate in the ASEAN region and remind businesses they can be held accountable i they leavea negative human rights ootprint. States are also liable or the conduct o businesses, and it isanticipated that these initiatives will prompt Southeast Asian states to integrate the guidelines intonational law and policy. For these initiatives to have a real impact, nations need to enact domestic legal

reorm especially in regards to land use, ownership, acquisition and participation rights. Tese reormswill help developing countries meet global standards o human rights and comply with human rightsobligations.

While these initiatives are welcome, their potential impact may be diluted by the overriding policyo nonintererence that legally binds all ASEAN member states. Enshrined in the ASEAN charter,this policy eectively instructs member states to turn a blind eye to human rights violations as long asit remains within the countrys borders. What this means is that ASEAN as a mechanism cannot becounted on to monitor corporate compliance to human rights in the region. Tereore, it is imperativethat States take on the task o protecting human rights. Te non-binding nature o the Bali Declara-

tion paves the way or businesses operating on their ground to continue violating the rights o localand rural communities. o ensure this does not happen, the Declaration must be incorporated intothe laws and policies o each member country.

66Building on a landmark year and thinking ahead, John Ruggie, Institute for Human Rights and Business, 12 Januar y 2012


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30Excluded

Burmas International Obligations

Burma voted in avor o the UNDRIP and is a ull member state67 o the International Labor Orga-

nization. However, the cases illustrated in this report show a clear pattern o abuse whereby Burmacontinues to all desperately short o its international commitments. Te absence o legal protectionsthat go beyond mere window dressing put Burma directly in contempt o international standards onthe right to involvement and participation in issues that aect the livelihood o ethnic nationalitiesand indigenous peoples.

ILO Convention 169

ILO Convention 169 is the only international law that protects the rights o indigenous and tribal

people to own the land they live on and make decisions about initiatives that aect them. Articles13 - 16 o the Convention deal exclusively with land rights and, notably, emphasizes that relocation olocal inhabitants is an exceptional measure to be taken only with the communitys ree and inormedconsent68. While Convention 169 has a dismal ratication rate among member states, it must bepointed out that under the ILO Constitution, i a State does not ratiy a new convention within ayear, it must explain the reasons or the delay. Unlike the United Nations, the ILO views the reusalto ratiy a convention as a potential human rights violation, and the ILO monitors the on-the-groundsituation or all member states alike regardless o their ratication status. Tereore, even thoughBurma did not ormally ratiy Convention 169, it is still held accountable or implementing the rightsoutlined in the Convention and is subject to monitoring by the ILO.

UNDRIP

Te only textual expression o ree, prior, and inormed consent is ound in the UNDRIP, whichBurma voted in avor o in September 2007. Article 32 requires ree and inormed consent prior to"the approval o any project aecting their lands or territories and other resources, particularly inconnection with the development, utilization or exploitation o mineral, water or other resources69."Tis declaration, while not legally binding, is cited as an international standard by other UN humanrights bodies and one Supreme Court70.

Responsibility to protect

Even though Burma has not ratied certain international instruments does not mean it can act ina manner that is inconsistent with those instruments. Tere are human rights standards that are sogenerally accepted by States worldwide that they pass into customary international law and thus

67 The ILO lifted restrictions on Burma on 13 June 2012. Burma is now a full fledged ILO member state.68 Article 16-2 of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), adopted 27 June 1989 and entered into force 5

September 1991, International Labor Organization69

Article of the UNDRIP, adopted by UN General Assembly 13 September 2007, A/61/L.67 and Add.170Maia S. Campbell & S. James Anaya, The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure

Indigenous Land Rights, 8 Hum. Rts. L. Rev. 377, 379 (2008).


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become binding even though the State never ormally ratied, accepted, or acceded to it. A clearexample o this is the Convention Against orture or the Universal Declaration o Human Rights. Itis common or courts to invoke customary international law and standards as a way to inorm theirjudicial decision making process.

Tereore, Burma still has the international responsibility to respect certain widely accepted rightseven i it did not ormally agree to do so. Te right to sel-determination, the basis or FPIC andounding principle o the movement to protect the rights o indigenous peoples and ethnic nationali-ties, is arguably a generally accepted human right that rises to the threshold o customary internationallaw. Sel-determination, which includes a range o alternatives including the right to participate inthe governance o the State71, is clearly articulated in a number o major international instruments,including the ICCPR, International Covenant on Economic, Social and Cultural Rights (ICESCR),and Committee on the Elimination o Racial Discrimination (CERD). Combined with the wide

ratication o the UNDRIP72

, it is clear that Burma can and must be held accountable to ensurecommunities meaningully participate in decisions that aect them.

71Erica-Irene A. Daes, Special Rapporteur on the Rights of Indigenous Peoples, Prevention of Discrimination and Protection of

Indigenous Peoples: Indigenous Peoples' Permanent Sovereignty over Natural Resources: Final Report of the Special Rappor teur,United Nations, U.N. Doc. E/CN.4/2004/30, at 17 (2004).

72144 states voted in favor of the UNDRIP


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32Excluded

Te fndings presented here reveal an entrenched and disturbing trend o aggressive intimidation by projectauthorities, and active suppression o project-related inormation: Close to 90% o those surveyed did notreceive any inormation about the development project beore it was started by a decision maker.

Tese fndings suggest that Burmas diverse populations cannot reap the benefts o development without theirree, prior, and inormed consent.

Key FindingsResearchers rom 9 organizations, organized and trained by CORE collected the inormation orthis report during April and May 2012. Each organization was asked to gather 30 interviews usingrandom sampling.

Overall, 261 interviews were conducted across 7 states and 1 division, involved 10 ethnic nationalitygroups and 9 development projects. Areas chosen or sampling were those aected by developmentprojects and include Kachin State, Karen State, Shan State, Chin State, Arakan State, and KarenniState. Structured interviews were conducted in villages and towns in order to collect a variety o data

associated with ree, prior, and inormed consent in the context o development projects.

Section 2

The Data Behind the

Discrimination


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Te report ound:

Close to 90% o those surveyed did not receive any inormation about the development project beore itwas started by a decision maker. In all but 2 sites, not one person was given any inormation.

Less than 1% said a project decision maker held a public orum where local community could attend.

About 80% did not know who to contact or where to go to nd out more inormation about the project.In 3 sites, the gure soared to 100%.

Less than 2% elt they would not be punished i they sought inormation about the project.

Close to hal (44.1%) elt unsae seeking urther inormation about the project, while 45.2% were not

sure whether it was sae or unsae.

Only 0.8% said a public orum by decision makers took place where aected locals were able to attend.

60.8% said they made a suggestion to a decision maker on the project but were ignored and 35.4% saidthey never made any suggestion to anyone.

9.6% said community based organizations provided inormation beore a project started while 25.2%said such organizations provided inormation ater a project was underway or nished.

Data conclusion

With the Condence interval o 6.07 and a Condence Level o 95% we can conclude rom the descriptive staticsthat the people o Burma are not receiving ree, prior, and inormed consent on industrial and inrastructuredevelopment projects that directly aect them and their communities. Te problems seen in our sample popula-tion is clear and suggests that these problems must be massively widespread and aect tens o millions o people.

Sittwe Seaport ollowed the most acceptable project as ar as ree, prior, and inormed consent goes.While this project is starting to achieve ree, prior and inormed consent, they still miss the goal by a lot.

o play a legitimate role in decision-making, villagers need to be consulted beore any developmentproject is started and every stage along the way should they have any concerns. Any ears or grievanceslocals may have are to be addressed in an appropriate and comprehensive manner, and their concernsare to have an impact on the course o the development project or FPIC to have any real meaning.

Te ndings presented here reveal an ent

Documents

Excluded in English