Where is the human rights due diligence? Appraising foreign business following the coup in Myanmar
After the 1 February attempted coup in Myanmar, foreign companies and investors had to make some tough decisions. Some exited. Some temporarily paused orders and operations. Those that became subject to sanctions had no choice but to leave. Many others chose to stay and weather scrutiny for doing business in military-ruled Myanmar.
Lost in the debates around boycotts and sanctions is a critical question: where is the human rights due diligence? The norms – established in the UN Guiding Principles on Business and Human Rights (UNGPs) and echoed elsewhere – are clear that human rights due diligence (HRDD) should be underway at all times in all places. The norms also make it clear business enterprises are to carry out heightened HRDD in high-risk circumstances.
Stakeholders should have seen signs of concerted HRDD all around – signs that businesses were meaningfully consulting with affected rights holders and local human rights defenders and experts to determine the most responsible decisions and responses.
After the attempted coup, as foreign business communities faced decisions that would deeply impact the lives and livelihoods of millions of people, stakeholders should have seen signs of concerted HRDD all around – signs that businesses were meaningfully consulting with affected rights holders and local human rights defenders and experts to determine the most responsible decisions and responses.
CAM and A30/ engaged local researchers and advocates and reviewed corporate disclosures to examine the extent and quality of HRDD underway in Myanmar. Our research revealed fateful gaps when and where HRDD was needed most.
For nearly a year, TotalEnergies and Chevron chose to stay in Myanmar. During this time, they were the target of the Blood Money Campaign and faced accusations of complicity in human rights atrocities. Under these circumstances, one would have expected to see extensive signs of HRDD. Instead, stakeholders were offered several unsourced statistics; Chevron’s View on Myanmar; an April 2021 column in which the TotalEnergies CEO justified TotalEnergies’ decisions to continue doing business in Myanmar; and a January 2022 CEO statement declaring that TotalEnergies would support sanctions. Then on 21 January 2022 TotalEnergies and Chevron abruptly moved to withdraw from Myanmar. Throughout, stakeholders found no sign of adequate HRDD – and more importantly no tangible support for the workers and communities at risk in an increasingly threatening environment.
The OHCHR asserts that proper HRDD should “be informed by meaningful stakeholder engagement, in particular with affected stakeholders, human rights defenders, trade unions and grassroots organisations.” As for the oil giants which continue business with the junta, there is the PETRONAS Statement on Myanmar; PTTEP’s entreaties to stakeholders that their “primary concern lies in the welfare and safety of all Myanmar people”; and Posco’s determination: “We don't think that the gas field business is connected to the military junta.” In all, no indication what, if any, HRDD is being carried out.
Global retailers Bestseller, H&M, and Primark paused orders and operations in March. They then resumed orders in May, before halting orders again in June when the third wave of Covid-19 hit Myanmar. The series of events raised concerns and questions, and left millions of garment workers on the streets, many without pay or any type of support. In the midst of these decisions, Bestseller took the initiative to commission Jonas Christoffersen, an independent lawyer, to carry out an independent report. The report concluded that business should resume immediately as there were no reasons to believe that the military was directly benefiting. The report has been subject to criticism and it is not clear what, if any, HRDD Bestseller attempted on the ground.
H&M spoke of being in “close dialogue with UN agencies, diplomatic representatives and human rights experts.” Similarly, Primark assured stakeholders it was “in close and regular contact with our suppliers and continue to monitor the situation very closely, following recommendations from government and external experts.” None of the efforts focus on affected rights holders or indicate proper HRDD.
Without question, the conditions in Myanmar make it difficult to carry out proper HRDD. But that is exactly why attempting meaningful HRDD - the kind that considers the experiences and perspectives of affected individuals and communities - is so critical. Every decision and move in this environment can have deep, irreversible consequences.
Norwegian telecom giant Telenor tried to stay until July 2021 when they quickly moved to sell their Myanmar branch to the contentious Lebanon-based M1 Group. The junta blocked the sale and told Telenor executives not to leave the country. The Telenor unit takeover was eventually finalised on the military’s terms. Beyond the hostage-like standoff, Telenor ASA now faces a complaint, submitted by 474 Myanmar CSOs to the Norwegian OECD NCP. One of the accusations: a failure to carry out HRDD before the attempted sale. Telenor made a number of statements and disclosures - none of which pointed to proper HRDD. Similarly, there was no indication of HRDD surrounding Telenor’s recent sale of Wave Money to a consortium led by Yoma Strategic.
Without question, the conditions in Myanmar make it difficult to carry out proper HRDD. But that is exactly why attempting meaningful HRDD - the kind that considers the experiences and perspectives of affected individuals and communities - is so critical. Every decision and move in this environment can have deep, irreversible consequences. Local stakeholders know that, and they can help foreign business communities make the right decision. It is not only about deciding whether to stay or leave, it is about making the best effort to do right by affected rights holders every step of the way.
Matthew Mullen, A30/ (Article 30) & CAM (Corporate Accountability Myanmar)