Business and Human Right Holding Governments Accountable in Asia 12-13 JULY 2018 BANGKOK THAILAND CONFERENCE PROCEEDINGS
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CONFERENCE PROCEEDINGS 3RD INTERNATIONAL CONFERENCE Business and Human Right Holding Governments Accountable in Asia 12-13 JULY 2018 BANGKOK THAILAND CONFERENCE PROCEEDINGS 3RD INTERNATIONAL CONFERENCE BUSINESS AND HUMAN RIGHTS HOLDING GOVERNMENT ACCOUNTABLE IN ASIA 12-13 July 2018 Bangkok Thailand 1 PREFACE Experts from around the world have analysed the multifaceted linkages between business operations and international human rights norms but circled back to point out the duty of the state as the key actor in the protection of human rights. They highlighted policy and legislative challenges affecting the capacity of states to uphold such norms as stipulated in Pillar One of the UN Guiding Principles (UNGPs) on Business and Human Rights. With increasing attention to the issues of business and human rights, the role of government in human rights protection is increasingly important for the economies in the region. These issues led to Asia Centre’s 3rd International Conference, in partnership with Forum Asia, Thammasat University ASEAN-China program and support from the Taiwan Democracy Foundation titled “Business and Human Rights: Holding Governments Accountable in Asia”. The event was held from the 12th to the 13th of July 2018, in Bangkok, Thailand. During the two days, the conference hosted nine panels with over 20 presenters and over fifty participants from a variety of organisations including universities, NGOs and INGOs who came together to discuss the issue of business and human rights in Asia. The focus was to examine if the interest in business and human rights conveniently ignores the civil and political violations by the State and its responsibility to guarantee human rights protection. The papers in this conference proceedings examine the duty of the state to protect human rights and regulate the behaviour of business organisations through a regional assessment of the issues, review of national strategies and policies, and the accountability of businesses themselves. All papers in this conference proceedings have been internally peer-reviewed and administered by the editors. The authors are responsible for the accuracy of facts, quotation, data, statements and the quality of the English language in their work. The papers are organised in the way it appeared in the conference program. This conference was followed up by Asia Centre’s publication: “Business and Human Rights in Asia: Duty of The State to Protect”. It is set to be released at the end of 2020. The authors of this book examine the State’s duty to protect human rights in Asia amidst rising concern over the human rights impact of business organisations in Asia. Click here for more info. 2 TABLE OF CONTENTS 1. Golda S. Benjamin, National Action Plans on Business and Human Rights in the ASEAN: Observations and Recommendations on the Procedural Aspects of NAP Development 5 2. Iman Prihandono, Recent Development on the Access to Remedy in Business and Human Rights in Indonesia 21 3. Saul Takahashi, All Carrots and No Stick: Human Rights Regulation of Companies in Japan 38 4. Nukila Evanty & Nurul Ghufron, Multinational Corporations and Human Rights 53 5. Dheeraj, Analysing National Voluntary Guidelines with particular focus on human rights commitments of Top 100 listed companies in India based on disclosures in public 64 6. Jonathan Rhodes, Learning From Map Tha Phut: A Look At Government Priorities 74 7. Bongkot Lochaya, The Impact of the Government Transparency on the Success of Myanmar’s Dawei Deep Seaport & Industrial Estate Development project 92 8. Daniel Polomski, Towards an Empirical Understanding of Ethical Consumption in Southeast Asia 107 9. Yesaya Sandang, Tourism and Human Rights: A Study towards Indonesia Tourism Regulation 125 10. Matthew Storey, A rock and a soft place? International resource corporations, a State’s right to development of natural resources and Indigenous Peoples right to Free, Prior and Informed Consent under the Laws of the Republic of the Philippines and Western Australia 142 11. Ing Hoe Loh, Sarawak Palm Oil and the Denial of Iban’s Customary Land 1 190 12. Socheata Sao, The Current State of Affairs for Access to Remedy for People and Communities Affected by Alleged Arbitrary Takings of Land in the Agribusiness Industry in ASEAN 195 13.Carlos & Francisco Rabassó, Holistic Learning In “Maternalistic” Management Educational Environment as a Way to Close the Gender Gap in 3 South East Asia. The Case of Thailand 217 14.Robert Sadleir, "Designing a Human Rights Management Systems Standard framed by the Value of Human Life: a practical approach to business enterprise human rights in Asia" 235 4 National Action Plans on Business and Human Rights in the ASEAN: Observations and Recommendations on the Procedural Aspects of NAP Development Golda Benjamin & Bobbie Sta. Maria Business & Human Rights Resource Centre Abstract This report compiles our observations and lessons learned on the procedural aspects of the development of national action plans on business and human rights (NAPs or NAP BHR) in ASEAN member-states. In this report, we highlight practices from Indonesia, Malaysia, Philippines, and Thailand and offer analyses on practical issues that could support other countries that are developing their own NAPs. The report also includes our recommendations on elements and steps that could help ensure inclusive processes, strong action plans, and clear commitments towards implementation. I. Introduction In 2011, the United Nations Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights (UNGP) to help clarify the roles of governments and companies in addressing the human rights impacts of business enterprises. The UNGPs are founded on the following: 1. States' existing obligations to respect, protect, and fulfil human rights and fundamental freedoms; 2. The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; 3. The need for rights and obligations to be matched with appropriate and effective remedies when breached. The UNGPs are implemented through various means, such as introducing relevant legislation and policies, changing corporate policy and practice, and providing remedies for victims of business-linked human rights abuses. Likewise, states implement the UNGPs through the development of national action plans on business and human rights (NAPs or NAP BHR). The UN Working Group on Business and Human Rights' Guidance on National Action Plans on Business and Human Rights defines a NAP as an "evolving policy strategy developed by a State to protect against adverse human rights impacts by business enterprises in conformity with the UN Guiding Principles on Business and Human Rights."1 1 UN Working Group on Business and Human Rights, Guidance on National Action Plans on Business and Human Rights (Geneva, 2016), available from http://www.ohchr.org/Documents/Issues/Business/ UNWG_NAPGuidance.pdf . 5 The development of NAPs in ASEAN is encouraging increased interaction among governments, civil society, and businesses—albeit with some groups still being heard more than others, and others still being totally excluded. Indonesia, Thailand, Philippines, and Malaysia have made significant progress towards developing a NAP on BHR. The idea has also been introduced in other countries, such as Myanmar, with various CSOs leading the call for a process that meets international standards and best practice. Multi-stakeholder participation is critical in ensuring that NAPs are inclusive, rights-based, and victim-centered. ASEAN governments in the process of developing NAPs could all do better to ensure broader participation of communities, workers, and companies. II. Country commitments to the UNGPs as the foundation of NAPs The UNWG on BHR has emphasized that it is essential and indispensable for an effective NAP to be founded on the UNGPs. It said: As an instrument to implement the UNGPs, NAPs need to adequately reflect a State's duties under international human rights law to protect against adverse business-related human rights impacts and provide effective access to remedy. A NAP further needs to promote business respect for human rights including through due diligence processes and corporate measures to allow for access to remedy. Moreover, NAPs must be underpinned by the core human rights principles of non-discrimination and equality.2 Thus, recommendations under NAPs should address the three pillars of the UNGP under its "Protect, Respect, and Remedy" framework:3 1. The state duty to protect against human rights abuses by third parties, including business; 2. The corporate responsibility to respect human rights; and 3. Greater access by victims to effective remedy, both judicial and non-judicial. Based on these pillars, countries developing NAPs need to bring together stakeholders from government, businesses, and civil society in a process that should be constructive and solutions-centered. These actors usually encounter each other in more tense contexts where human rights abuses are being alleged and victims/survivors are seeking redress. The NAP process is a unique platform to address human rights issues before abuses occur, with proposals ideally coming from all key stakeholders. 2 Id. 3 John Ruggie, UN “Protect, Respect and Remedy” Framework and Guiding Principles” (2008), https:// www.business-humanrights.org/en/un-secretary-generals-special-representative-on-business-human-rights/un- protect-respect-and-remedy-framework-and-guiding-principles