Thursday, July 27, 2017

Land rights major risk for EU-Myanmar IPA

As EU-Myanmar Investment Protection Agreement (IPA) negotiations entered the fifth round, a report released by ACT-Alliance on the potential risks and opportunities of the agreement has named Myanmar’s widespread land conflicts, land-related human rights, the need for policy space and limited institutional capacity as major obstacles to the forthcoming IPA.

Photo - European CommissionPhoto - European Commission

On the Myanmar side, the report recommends fully transparent and systematic consultation on policies, laws and secondary regulation by the Directorate of Investment and Company Administration (DICA) and allowing parliamentary deliberation to ensure a more nationally owned process.

The Pending EU-Myanmar Investment Protection Agreement: Risks & Opportunities was commissioned by DanChurchAid, ICCO Cooperation, ACT Alliance EU, and the ACT Forum in Myanmar.

In March 2014, the European Union (EU) and Myanmar began negotiating a bilateral IPA.

According to the European Commission, the agreement would offer investors from both sides a predictable and secure investment environment, protect them against discrimination, and ensure fairness on investments.

On April 26 and 27, EU and Myanmar chief negotiators met in Yangon to discuss the EU-Myanmar IPA following the fourth round of negotiations held in December last year, with a focus on investment dispute resolution.

Earlier, EU ambassador Roland Kobia told the Myanmar Times that an EU-Myanmar IPA would offer EU investors key guarantees in their relationship, and create a level playing field with investors from countries that already have such an agreement. For Myanmar, creating legal certainty and predictability for firms may help to attract foreign direct investments (FDI) to underpin the country’s growth.

The study finds that legacy issues related to land and overall weak human rights protections mean that it is likely that more investment will negatively impact the livelihoods and human rights of Myanmar citizens. This might affect, in particular, land rights and, therefore, related issues including the right to food and its fair distribution, the right to adequate housing, and the right to self-determination.

Additionally, the IPA may deprive the Myanmar government of the policy space crucial to harness investments to achieve the country’s goals of democratic reforms and sustainable peace.

“Widespread land conflicts and pending land governance reform, also in relation to the larger ongoing peace process, form the key reason for opposition to the pending EU-Myanmar IPA,” the study reads.

“Land rights are not well established and populations living or working on land acquired for large-scale investment projects have protested over forced evictions, loss of livelihoods, inadequate consultation and compensation.

“Land governance reform is expected and wanted, as well as larger governance reform in the context of the peace process, although the breadth and depth of these remain unknown,” it explains.

Limited institutional capacity is another major challenge. Myanmar may fail to effectively enforce IPA measures.

“There is limited intra-government[al] information sharing and coordination, which could unintentionally expose the country to expensive litigation risks.”

The document lays out several key recommendations, of which more transparency and consultation for DICA comes first.

“The absence of transparency and public consultations has made it near impossible for Myanmar civil society as well as international commentators to reflect on the agreement and provide suggestions for improvements,” it says, adding that while the EU may prefer closed-door negotiations, Myanmar in this critical period of reform can insist on an open process.

It pushes Myanmar to initiate fully transparent and systematic consultation on policies, laws and secondary regulation, in which anyone has the ability to comment.

Another recommendation is to have parliamentary debates on the agreement.

CSO representatives said that the IPA process is “entirely driven by senior levels of DICA, the President’s Office and State Counsellor Aung San Suu Kyi.” Few others in government are aware of the process or understand the consequences. Parliamentarians can be made more aware of the process and related issues, and they can insist on debates in legislatures.

The study also suggests lobbying DICA for a slowdown of the process, and a full review of implications before signing.

According to the study, it appears that the Myanmar government is rushing into an agreement of which many in government have limited understanding.

“Lobby activities could focus on slowing down the government, and encouraging the undertaking of larger assessments of the implications of the IPA and of business and human rights in general.”

Other recommendations include tackling priorities which will attract more investment without the risks of an IPA, such as labour law reform, better inter-departmental coordination and speeding up of process across government, more consistent law and decision making, and improved communication and transparency.