The role for business in human rights in Myanmar: confronting dilemmas and improving outcomes
Anna Triponel | 11 May 2021
This article captures remarks delivered by Anna Triponel at the event ‘The Struggle for Democracy and Development in Myanmar’ organised by the Oxford Development Consultancy that took place on May 11th 2021.
Thank you for inviting me to contribute to such an important topic, alongside Bill Hayton and Thinzar Shunlei Yi. The discussion is timely and urgent. Bill’s twitter feed shows a picture of the interest in the military coup, as measured by Google searches. We see that since February, the interest in what is happening in Myanmar has died down significantly. Yet, as Thinzar Shunlei Yi shows us, the events on the ground are going from bad to worse, with 780 persons killed and 4,899 persons arrested.
My name is Anna Triponel, I’m a business and human rights advisor.
Let me tell you a little bit about my experience with Myanmar to serve as a backdrop for my remarks.
Back in 2007, I was an international lawyer based in NY, and I worked with the opposition to challenge the legitimacy of the military junta at the UN. I saw through that work just how limited the options are to dislodge a military, once entrenched.
I joined the team at Harvard Kennedy School, working on the UN Guiding Principles on Business and Human Rights. This document, endorsed at the UN level in 2011, has become the authoritative framework of reference for what companies should do when it comes to human rights impacts. (I’ll speak more about this later).
When Myanmar opened up to business in 2012, I travelled around the country on behalf of Shift to explore what communities and workers wanted from companies coming in to the country, and I presented the findings at the World Economic Forum at the time. The message was clear: people wanted Western companies to enter the country, and they felt that this would help guarantee their rights: civil and political; economic, social and cultural.
Since then, I have worked with a range of companies and investors in Myanmar, and in 2018, I worked on the U.S. State Department- commissioned investigation into the crimes against the Rohingya, published by PILPG.
Today, I will be describing the kinds of human rights dilemmas companies are facing in Myanmar since the military coup of February 1st, and speak to the role expected of companies to lead to an improved human rights situation for those on the ground.
Now as a former lawyer, my introduction wouldn’t be quite complete without a disclaimer, so here goes! I speak today on an individual basis. Nothing I say represents companies or organisations I work with, and examples provided are all based on publicly reported information.
Human rights dilemmas in practice: illustration from the energy and telecommunications sectors
The opening up of Myanmar attracted investments and business from a wide range of sectors: energy, telecommunications, manufacturing, beverages, food, apparel, finance – and the list goes on. Since February 1st, all of these businesses have been faced with stark human rights dilemmas.
To illustrate the concept of human rights dilemmas, I’m going to discuss two real-life examples from the energy and telecommunications sectors. I select these two because of their importance to the military (we are talking here about electricity and networks) and because CEOs in these sectors have recently been vocal about the dilemmas they face. These are intended to illustrate the kinds of human rights dilemmas faced by companies in practice in Myanmar, before I delve into what can, and should, be expected of companies operating in Myanmar.
The first example comes from French energy company, Total. Total produces gas on the Yadana, Sein and Badamyar fields – located off Myanmar’s southwest coast. The gas from the fields is sold to Thai company, PTT, and PTT uses the gas to generate about 8 % of the electricity in Thailand. Total also supplies around 50% of the gas used to generate electricity for Yangon
So, what are the human rights dilemmas faced by Total?
In a widely reported Op-ed published on the 3rd of April, Patrick Pouyanné, Total’s CEO discusses the three human rights dilemmas he sees for the company.
First, Total has been asked not to pay its taxes to the military, or to pay this into an escrow account. This would mean withholding $4 million on a monthly basis from the military. The argument goes that by paying money to the military, Total is strengthening and entrenching the military, and financing its crimes. Pouyanné responds that the company could do this, but this in turn would put the local managers at risk. They could be prosecuted and put into jail, since non-payment of taxes is a criminal offence.
Second, Total has been asked to discontinue its gas operations in Myanmar. To stop operations altogether. Pouyanné responds that the company could do this, but that in turn this would deprive half of Yangon from electricity (over 2.5 million people), and this would lead to greater suffering, for instance by hindering the operations of hospitals and businesses
Third, Pouyanné also notes that if they choose to stop operations, local authorities could resort to forced labour to compel Total’s employees to continue working, as they have been known to do in the past.
Total’s decision therefore is to condemn the repressive action taking place and discontinue any new exploration in Myanmar. The company will continue ongoing operations – due to the risks to workers and employees – and will continue paying taxes, while committing to provide the equivalent amount to associations working on human rights in the country.
Let’s move to our second example, Norwegian telecommunications company, Telenor. Telenor is one of two foreign operators in Myanmar, alongside Ooredoo. Telenor connects people in Myanmar – serving around a third of the population.
On the day of the coup, the military ordered Telenor and other operators to shut down networks. The orders from the military went from: you shall block social media sites like Facebook, to: you shall block internet services during the night, to: you shall cease mobile and wireless services.
The question then becomes: do we comply with military orders, or do we not comply with the orders – putting our local staff and the small access we still can provide to users at risk? Just last week, Sigve Brekke, Telenor’s CEO, said that the entirety of the company’s $782 million investment in Myanmar would need to be written off, but that the company will not exit the country. He notes that by staying present, the company can shine a spotlight on the military orders and try and exercise leverage to “make a difference” – including for instance speaking out against a new security law.
The ground rules for companies as applied to Myanmar
These human rights dilemmas are not easy to navigate.
So, what are the ground rules for companies – captured in the UN Guiding Principles on Business and Human Rights – and what does this mean in practice for companies faced with the situation in Myanmar today?
Companies in Myanmar are expected to act on human rights. This is a responsibility, this is not about voluntary or feel-good actions. Companies in Myanmar are expected to consider the risks to people that exist in their business, taking a full value chain perspective. Companies are expected to prioritize preventing and mitigating the most severe risks to people; not based on reputational risks, and not based on what is feasible or realistic. Companies are expected to build and exercise leverage – alone and with others – to prevent and mitigate the most severe impacts. And companies are expected to consider disengaging when improved outcomes are not possible.
Here are examples of how these ground rules could apply to Myanmar. Could the company’s actions (or omissions) result in harming people – including through its value chain? This could happen for instance if I insist on workers coming in to the office, knowing this is an unsafe environment, and workers get shot on their way to work (which has happened in Myanmar). Could the company’s business (including through its business relationships) be strengthening the military? This could happen for instance if the company is providing logistical or financial support to the military. Is the company dedicating efforts to where the risks of harm to people are, or could be, the most severe? In other words, is the company staying strong on discussing and taking action on the most severe risk it could be connected to – even though this may seem incredibly complex to do right now?
Now, here is where I get to the core of my argument.
Yes, under international methodology, companies are expected to look at addressing impacts in their value chain. Impacts that happens outside of the company’s value chain are viewed as beyond the company’s responsibility.
But of course, the operating context within which companies operate plays a critical role.
An operating context of military dictatorship, where strongmen do not shy away from shooting people for raising their voice, amplifies significantly the chances that companies are connected to adverse human rights impacts in their business. These impacts are suddenly much more likely to occur, and at a greater level of severity.
Therefore, companies cannot shy away from playing a role in the broader political developments that are happening as we speak. This is part of their responsibility, to help build toward a foundation of human rights respect.
This entails a thoughtful and considered reflection on the part of companies operating in Myanmar. What leverage does my company have over the military and how could I use it to ease the country back on the path to democracy? What leverage does my company have over other stakeholders in Myanmar and how could I use it to ease the country back on the path to democracy? What could I do to build my leverage over the situation? Could I play a role in pushing political players to use tools in their diplomatic toolbox to weaken the military? Can I support the international community’s efforts to cut off funding to the military regime, and deny its legitimacy?
We know that this is about considering a range of different pieces of the puzzle: no one piece will be sufficient to weaken and dislodge the military, but together and over time, the picture will become clearer. Companies have a role in enabling these pieces to come together, because they can’t operate in a rights-respecting way in a country that operates on the basis of flagrant human rights violations.
To conclude, by choosing to operate in a country emerging from dictatorship, whether they like it or not, companies have become part of the panoply of international actors and institutions that have a responsibility to embrace and seek to enhance human rights and rule-of-law standards.
If companies don’t do it to meet their responsibility to respect human rights, they should do it for Daw Myo Myo Aye, arrested for her trade union membership. They should do it for nineteen-year-old Ma Kyal Zin, killed for protesting for democracy. They should do it for 6-year-old Khin Myo Chit, killed in her home by the military while running to her Dad’s arms.
Private sector entities have more weight than they think. There has never been a better time to think creatively and strategically about leverage. We owe it to the people of Myanmar who welcomed us with open arms in to their country to find a way to break the direction of travel here, and put the country back on the pathway to respect for people’s fundamental rights.