Statement at the end of visit to Thailand by the United Nations Working Group on Business and Human Rights
Bangkok, 4 April 2018
In our capacity as members of the United Nations Working Group on Business and Human Rights, we have today ended our ten-day visit to Thailand. We thank the Royal Thai Government for its support and facilitation of this visit, as well as the many people from civil society and the business community with whom we were able to engage in an open and frank dialogue on current initiatives, opportunities and challenges to implement the UN Guiding Principles on Business and Human Rights (UNGPs).
We welcome the Government’s aims to be a regional champion in promoting the business and human rights agenda and its willingness to engage with the Working Group on how best to achieve this objective.
During our visit, we met with the Minister of Foreign Affairs and Government officials from the Ministry of Foreign Affairs, Ministry of Natural Resources and Environment, Ministry of Agriculture and Cooperatives, Ministry of Commerce, Ministry of Energy, Ministry of Finance, Ministry of Industry, Ministry of Justice, Ministry of Labour, Ministry of Public Health, Ministry of Social Development and Human Security, National Council for Peace and Order, Office of the National Economic and Social Development Board, Royal Thai Police, , Office of the National Anti-Corruption Commission, Office of Public Sector Anti-Corruption Commission, Office of Council of State, Revenue Department, , State Enterprise Policy Office, Electricity Generating Authority of Thailand, Eastern Economic Corridor Office of Thailand, Administrative Court, Office of the Attorney General, Court of Justice, Office of the Council of State, National Reform Committee on Natural Resources and Environment, and the Standing Committee on Foreign Affairs of the National Legislative Assembly. We also met with officials from departments of the provincial authorities in Songkhla, Chiang Mai, Khon Kaen, and Samut Sakhon.
In addition, during our meetings held in Bangkok, Songkhla, Chiang Mai, Khon Kaen, and Samut Sakhon, we met with representatives of indigenous peoples (ethnic minority communities), as well as with over 250 representatives of civil society organisations (CSO), human rights defenders (HRDs), affected individuals, migrant workers and academia; members of United Nations Country Team; the National Human Rights Commission of Thailand; the Stock Exchange of Thailand; Thai Chamber of Commerce and Board of Trade of Thailand; Federation of Thai Industries; Thai Bankers’ Association; Business associations in the tourism and fishery sectors; members of the Thailand Network of the United Nations Global Compact; as well as individual business enterprises that made themselves available to share their experiences with the Working Group.
In our statement, we outline some initial observations from our visit. Our official mission report to the 41st session of the Human Rights Council in June 2019 will contain further observations and recommendations.
The Government recently announced human rights as a national agenda to drive the Thailand 4.0 policy and promote sustainable development. The “Thailand 4.0” economic strategy sets out a series of goals to be achieved by 2032 to transform Thailand into a high-income country and reduce social disparity. As part of efforts to promote economic growth, a range of major projects are being promoted by the Government, including the Easter Economic Corridor and Special Economic Zones (SEZs).
Since 2014, the country has been headed by an interim military Government under the National Council for Peace and Order (NCPO) headed by Prime Minister Prayuth Chan-o-cha. A transition back to civilian rule and the holding of elections under the new 2017 Constitution has been announced for early 2019.
In a seminar on 31 May 2017 (and on several subsequent occasions), the Prime Minister made a public commitment to implement the UNGPs. Such a commitment at the highest political level is commendable. Going forward, the Government should build on the progress made and match the commitment with further concrete actions.
Businesses’ engagement with the business and human rights agenda and the UNGPs
From our meetings with representatives of the business sector, we observed that while the business and human rights agenda is still new, there was a growing interest and awareness about its importance, especially among larger companies with exposure to global markets. We learnt about a number of initiatives, such as the Thai Chamber of Commerce code of ethics and the Code of Conduct of the Federation of Thai Industries. We encourage harmonizing such existing frameworks with the UNGPs. At the Stock Exchange we also learned that a number of major Thai companies are listed in different global sustainability indexes. Industry associations and the UN Global Compact should play a more robust role in disseminating the UNGPs and in ensuring their implementation by their members, both in Thailand and abroad.
We recommend that a closer attention be paid to the relationship between large companies and their supply chains, including outsourcing and subcontracting practices which may trigger adverse human rights impacts. We were told that some companies outsource their human rights risks. The UNGPs are explicit that companies remain responsible for adverse human rights impacts in their supply chains.
The State as an economic actor
We were pleased to learn that the Government had instructed the country’s 55 State-owned enterprises (SOEs), some of the largest companies in Thailand, to show leadership in aligning their practices with the UNGPs. This commitment now needs to be followed up by concrete guidance and incentives, such as key performance indicators for how SOEs prevent and mitigate human rights risks and impacts.
States not only have an obligation to protect against human rights abuses by business corporations, but must also lead by example and ensure that enterprises under their ownership or control fully respect human rights. As part of their duty to protect human rights, the Government should set out clear expectations for SOEs and other Thai businesses to respect human rights while operating in Thailand as well as abroad through their subsidiaries, contractors or joint ventures. We welcome that the agency in charge of SOEs is aligning corporate governance practices with the OECD guidelines on SOEs.
We also encourage the Government to promote corporates respect for human rights through its public procurement and economic diplomacy, including in promoting human rights due diligence by Thai companies involved in mega-projects in the ASEAN region. The Government should also consider integrating human rights in its future trade or investment agreements.
Human rights risks and impacts related to development projects
We learned about several human rights concerns and risks related to large-scale development projects, including impacts of a number of mega projects promoted by Thai companies and investments in other countries in the region. From meetings held with a wide range of stakeholders across the country, a pattern of risks and challenges emerged, indicating a systemic problem and underlining the need for improved safeguards and processes related to impact assessments and consultations with communities affected by development projects.
Environmental and social impact assessments
A recurrent issue raised with us related to the need to strengthen current procedures for impact assessments in the context of large development projects. Several specific cases were presented to us relating to a range of projects in the infrastructure, mining and energy sectors. This is consistent with information provided by the National Human Rights Commission of Thailand (NHRCT). Out of a 2,119 complaints received concerning adverse business-related human rights impacts since 2001 (out of a total of 10,824 cases), the three most frequent types of impacts recorded related to (1) adverse effects of environmental pollution on human heath, (2) forced evictions of communities with no or inadequate compensation, and (3) lack of or inadequate public consultations with communities affected by large-scale development projects.
One main problem that was consistently raised with the Working Group was the way environmental /environmental and health impact assessments (EIAs/EHIAs) and related public consultations were carried out by private consultants hired by the project company promoting a given project. While consultants carrying out EIAs/EHIAs had to be selected from a list of 70 registered companies approved by the Office of Natural Resources and Environmental Policy and Planning (ONEP), there was a widespread perception that consultants were inherently biased in favour of ensuring project approvals. Several community members shared with us instances of interested parties having been prevented from participating in consultations and public hearings, adding to perceptions of a biased process.
The Working Group also heard concerns about how the push to attract investment could undermine effective impact assessments, including by providing for waivers and introducing a system of fast-tracking project approvals. Reference was made to NCPO Order 9/2559 (of 7 March 2016), which aimed to speed up review processes for certain public works projects by allowing SOEs to seek Cabinet approval of projects before the completion of a EIA/HRIA.
In Songkhla province, we met with local authorities and community members to learn more about concerns and protests against a project to build at coal-fired power plant by the Electricity Generating Authority of Thailand (EGAT). Community members told us that the public hearing on the project in 2015 had been held under strict security control and that a number of community members who were opposed to the project had been barred from participating in the public hearing. Those opposing the project filed a complaint with the National Human Rights Commission and staged several protests, including a march to present a petition to the Prime Minister, which resulted in the arrest of 17 community members, and a protest in Bangkok.
Responding to the concerns raised by those opposing the project, the Prime Minister on 30 January 2018 ordered the suspension of the power plant, and on 20 February 2018, the Minister of Energy signed a memorandum of understanding (MoU) according to which: (1) the EHIA for the plant projects in Krabi and Songkhla would be withdrawn; (2) the Ministry of Energy would conduct a Strategic Environmental Assessment (SEA) by independent experts agreed by both sides to consider the suitability of coal-fired power plant projects in these areas; and (3) EGAT would have to terminate the project permanently in case the SEA is not approved. In view of this development, as a good gesture of reconciliation with affected communities, we encourage the Government to consider dropping prosecution of all 17 people (including one juvenile).
We note with interest the SEA mechanism as a way to improve impact assessments, ensuring that they are conducted independently with meaningful consultation with the affected communities. We appreciate the understanding shared by the National Reform Committee on Natural Resources and Environment that there is a need for a paradigm shift to ensure a bottom-up, participatory, horizontal process that would empower people and communities and provide them with the right tools to participate effectively. We also encourage a more holistic approach of sustainability impact assessments that include social and human rights dimensions and take into account sector-specific risks.
Special Economic Zones
Plans for the establishment of 10 SEZs, in 10 different provinces, illustrate other human rights risks and impacts that needs to be addressed and opportunities to align policies and practice with the UNGPs and international good practice.
The SEZs seek to attract foreign investment through a package of tax and non-tax incentives, in a number of labour-intensive industries, such as garment and textile manufacturing and processing of agricultural and fishery products. The SEZs also advertise easy access to migrant workers from neighbouring countries.
We heard concerns over the way land acquisitions and decisions about the locations of the 10 SEZs had been through executive orders, with limited consultation with affected communities. As the SEZs will require the resettlement of people, it will be critical to ensure that such resettlement is done in a human rights-compliant manner. People and communities who are currently living in SEZ-designated areas should be consulted and fairly compensated, in line with UN principles and guidelines on development-based evictions and displacement. People and communities who have been living on and depend for their livelihoods on land that would be used for SEZs should not be considered trespassers even if they do not hold land title deeds.
We suggest that a SEZ should be considered equivalent to a SOE with an expectation to have the highest standards of corporate governance and practices. Commitment to UNGP implementation should be reflected in how SEZs are established and administered.
Thai investments abroad
We learned that Thai companies and investors are promoting several mega projects in neighbouring countries in the ASEAN region. In this regard, concerns were being raised about heightened risks of adverse human rights impacts in countries with weaker regulatory frameworks and safeguards.
We encourage the Government and Thai companies to step up efforts to identify, address and prevent human rights abuses linked to Thai investments abroad, including access to effective grievance mechanisms. Merely complying with legislation of host countries, which may be weak or insufficient, is not be enough to prevent and mitigate adverse human rights impacts.
Human rights defenders and civic space
CSOs and HRDs have an indispensable role in promoting business respect for human rights and in strengthening corporate accountability. Both the Government and Thai businesses should regard CSOs and HRDs as “critical partners” and engage with them constructively to prevent, mitigate and remedy adverse human rights impacts.
During our visit, CSOs and HRDs brought to our attention various concerns related to limited space in exercising their constitutional rights. The concerns such as restrictions on public assemblies, criminalisation of peaceful protests, the practice of “attitude adjustment” and filing of SLAPP cases stem from actions of both Government authorities and businesses.
We are concerned that the relevant NCPO Orders often result in placing unreasonable and unwarranted restrictions on the right of affected people to raise legitimate concerns and protest peacefully. We heard from community members from across the country how they had been called to meetings by the military for the so-called “attitude adjustment” with the aim of convincing them to stop raising concerns about adverse impacts of business operations and development projects. Such practices similarly create an intimidating environment and hardly serve the purpose of resolving social conflicts. We would therefore encourage the Government to ensure that the relevant NCPO Orders, while they remain in force, do not constrain civic space in line with the country’s international human rights obligations.
The Government should also ensure that defamation cases are not used by businesses as a tool to undermine legitimate rights and freedoms of affected rights holders, CSOs and HRDs. We note the proposed amendment to Section 161/1 of the Criminal Procedure Code and the Witness Protection Act as well as the current initiative to develop Guidelines to Protect Human Rights Defenders. These efforts offer the Thai Government a golden opportunity to address concerns related to shrinking civic space. However, in order be effective, all the Government agencies in charge of these measures should engage constructively with the intended beneficiaries and draft provisions which respond to all existing legitimate concerns.
The Public Prosecutors and the Attorney General Office should also use their discretion under Section 21 of the 2010 Public Prosecutor Organ and Public Prosecutors Act vigilantly to screen out criminal defamation cases that might be intended to harass HRDs.
Trafficking and forced labour
We learned about efforts made by the Government to tackle human rights abuse related to trafficking and forced labour, after cases of such abuse had attracted international attention.
Thailand is one of the world’s largest seafood exporter, and the threat of a ban on exports and pressure from consumers and supermarket chains spurred the quick enactment of new laws and measures to stamp out forced labour in the fishing and seafood processing industry. An industry which employs more than 400,000 workers, of whom around half are registered migrant workers, predominantly from Myanmar.
We welcome the decisive actions taken by the Government introducing registration of all commercial fishing vessels, new systems of point-in and port-out controls and enhanced labour inspections and increased fines for non-compliance with labour laws and fisheries laws. Action was also taken by industry associations, led by the Thai Tuna Industry Association (TTIA) which adopted a code of conduct on ethical labour practice as a requirement for TTIA membership, including a commitment to monitor compliance with those standards of their suppliers. Government agencies and business associations have also opened up avenues for consultations with trade unions and associations of migrant workers.
We note that the risks of forced labour and trafficking are also present in other sectors in Thailand, such as agriculture and construction, which have a high number of migrant workers. We therefore encourage the Government to replicate and scale up measures taken in the fisheries sector to improve oversight of labour conditions in other sectors, and consider requiring businesses in high risk sectors to conduct and report on human rights due diligence as per the UNGPs.
A number of stakeholders raised concerns regarding irregular migrant workers, especially those that are in a vulnerable situation due to factors such as illiteracy, language barriers, lack of documentation.
We were informed about the Government’s efforts to provide health insurance and social security schemes for migrant workers and regularise undocumented migrants through the one-stop registration service. We visited one such centre where people had to wait in line for up to several days. Despite the Government’s best efforts, the national identification process of a large number of undocumented migrant workers could not be completed by the 31st March 2018 deadline. We encourage the Government to consider extending the deadline or find other convenient ways to facilitate processing of remaining cases.
We were informed that the private sector often hires migrant workers through sub-contracting companies so that it can mitigate the risk of exposer and legal liability. Due to the dangerous nature of the work in the fishing, agricultural and construction industries, the Government should consider requiring businesses to conduct and report on human rights due diligence as per the UNGPs and ensure that migrant workers who get injured while working are provided workers’ compensation and social security benefits.
Corruption still remained a prevalent risk in the migrant employment process. We heard that migrant workers had to pay high fees to brokers as part of the recruitment process. A number of steps should be taken to address corruption such as supporting a policy of “no recruitment fees” in the hiring process and setting up protection systems to safeguard whistle-blowers who expose corruption.
The Government should also empower migrant workers, including through enabling them to exercise freedom of association and collective bargaining. We would therefore encourage the Government to ratify ILO Convention Nos. 87 and 98. All migrant workers should be provided information about their rights and the complaint hotlines on their arrival in Thailand in their native languages.
Persons with disabilities
We were informed that 1.567 million or about 2.41% of the total Thai population have a disability, and that a number of measures have been taken in recent years to promote their inclusion in the labour market. Thailand ratified the UN Convention on the Rights of Persons with Disabilities in 2006 and in 2017 enacted the Empowerment of Persons with Disabilities Act (revised in 2013), introducing a rights-based approach to inclusiveness. While we learned about many challenges faced by persons with disabilities in accessing the labour market, including related to inadequate accessibility of work places and public transport, we welcome a series of steps taken to address such obstacles and to incentivise business to recruit persons with disabilities. One such measure is a quota system introduced in 2008, requiring private companies to employ one person with disability for every 100 persons hired. Companies that do not fulfill this requirement will need to pay a fee to the Empowerment of Persons with Disabilities Fund.
Information received from CSOs indicated that further efforts should be made to make a better use of the Fund. We were informed that the Government is now exploring different management models so that the Fund can be used more effectively to help persons with disabilities find jobs and truly empower them.
The Working Group learned that sex workers, especially in the entertainment sector, are particularly vulnerable to human rights abuse, including human trafficking. It welcomed steps taken to step up inspections and training for law enforcement officials to detect cases of human trafficking, and to provide shelters and support for victims. However, a main obstacle to protect sex workers against human rights abuse is the hidden nature and criminalization of sex work under the Suppression and Prevention of Prostitution Act.
Many sex workers in Thailand are undocumented migrants from neighbouring countries, whose migration status exacerbates their vulnerability. Sex workers under the age of 18 are automatically considered to be victims of trafficking and provided support when detected. However, most sex workers risk arrest if they report violence and abuse in employment to the authorities. We are also concerned about the practice of stamping passports of undocumented migrant sex workers indicating that they have been fined for indulging in prostitution.
Rather than criminalizing vulnerable sex workers, we encourage the Government to focus on regulating better the entertainment sector and ensuring full application of labour laws, in line with the recommendations made in 2017 by the Committee on the Elimination of Discrimination against Women.
Gender lens to business and human rights
All persons, including women, are treated equally under the Thai Constitution and other laws. However, during the visit, we learned that women continue to experience pay gap, discrimination, sexual harassment and violence at workplace. Women workers in certain settings and circumstances (e.g., domestic workers, migrant workers, sex workers) seem to experience unique obstacles in leading an equal life. Moreover, we were told that LGBTI people in Thailand face a range of discrimination in availing services or finding employment.
We commend the Government for enacting the Gender Equality Act of 2015, which prohibits discrimination based on sex or gender and extends protection to LGBTI people. The Act also creates a Gender Equality Promotion Fund to support activities aimed at promoting gender equality and establishes a Committee on the Consideration of Unfair Gender Discrimination to investigate and provide remedies for sex- or gender-based discrimination. However, lack of any complaint for sexual harassment under the 2015 Act in over two years should not be taken as evidence of gender equality: rather, this seems to indicate that the full potential of this new law is not being realised. The Government should therefore take additional steps to enhance awareness about the Gender Equality Act, including its complaint mechanism.
Thailand has a rich and ethnically diverse population with ethnic minorities making up around 15% of the total population. Although the Government recognises the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it does not consider ethnic minorities as indigenous peoples..
People from ethnic minorities have seen limited economic benefits as the majority still live in a lower socio-economic bracket as compared to other Thais. For example, those living in the Northeastern region of the country continue to be the poorest of the population and suffer lower education levels and health standards. The Government should ensure that ethnic minorities are prioritised in development strategies, policies and programmes.
We also learned that ethnic minorities are being disproportionately impacted by large-scale development projects with significant negative impacts on the environment, right to health, and impact upon their livelihoods and cultural way of life. A serious concern expressed by ethnic minorities (including the hill-tribes) relates to the lack of meaningful consultation before approving development projects. We were informed how members of ethnic minorities who toiled on the land for generations, through rotational farming, were now being regarded as trespassers and were subjugated to criminalization, harassment and intimidation.
Since the life, livelihood and culture of ethnic communities is intrinsically linked to land and natural resources, the Government’s land management and forest conservation policies should be rooted in meaningful consultation and participation of these communities in decision making processes as per the UNDRIP.
Statelessness within the ethnic community continues to be a problem, as Thailand is estimated to have around 486,556 stateless individuals from ethnic groups, which negatively restricted their freedom of movement and access to justice. However, we are encouraged by the Government’s commitment to ending statelessness by 2024. We also welcome the Thai Cabinet’s decision to grant legal statues and citizenship to around 110,000 stateless children of hill tribe decent. We would encourage the Government to keep up these efforts and safeguard their collective rights to land and natural resources.
Access to remedies
During our visit, we learned that people and communities adversely affected by business-related human rights abuses can avail a range of options to make complaints or seek redress – from using dedicated hotlines to approaching courts, the NHRCT and Damrongdhama Centres. However, the victims of corporate human rights abuses (in particular those in vulnerable conditions or at higher risk) seem to struggle in securing effective remedies from these existing mechanisms. The obstacles in effective remedies range from low awareness about rights, linguistic barriers, high cost of litigation, inability of the NHRCT to issue enforceable orders, limited civic space to organise protests collectively, and the fear of intimidation and SLAPP cases.
In this context, we appreciate the creation of a Justice Fund as a critical tool to enable victims in defending themselves or seeking effective remedies. However, the Government should ensure that requests to access the Justice Fund are dealt with in an impartial manner and expeditiously. In urgent cases (e.g., arrests of HRDs) interim financial aid should be offered immediately. We would also encourage the Government to enhance cross-border cooperation with ASEAN and other states to improve access to effective remedies in cases of trans-border nature.
We also acknowledge with appreciation a recent amendment of the Civil Procedure Code to allow for class action and a proposal to improve the standards of interpreters working in the justice system.
Individuals and communities affected by business-related human rights abuses can seek remedies from Thai courts as well as certain specialised courts such as Labour Courts.
Justice delayed is justice denied. We therefore appreciate that Thai courts are generally able to dispose of cases expeditiously: for instance, the Courts of First Instance and the Courts of Appeal are able to decide over 99% of the cases within one year. But there are other barriers in accessing judicial remedies that should be addressed. For example, although Section 4 of the Civil Procedure Code allows Thai courts to accept cases in certain extraterritorial cases (e.g., a Thai business operating aboard but with a place of residence in Thailand), the separate legal personality of foreign subsidiaries and contractors would still operate as a serious hurdle.
The Government should review these barriers and try to address these as part of the National Action Plan on Business and Human Rights (NAP). It should also consider and perhaps establish special Environmental Courts to deal with disputes related to the environment and natural resources.
The NHRCT offers a good potential to provide non-judicial remedies for corporate human rights abuses, and has received over 2,100 such complaints since 2001.
The 2017 National Human Rights Commission Law seeks to strengthen the independent status of the Commission as per the Paris Principles, provide it a constitutional status, confer powers to examine cases on its own motion as well as enter any housing or place to examine facts, and include civil society representatives in the selection committee of NHRCT’s members. These are steps in the right direction. However, we also note concerns related to the NHRCT being deprived of its vital power to refer cases to the court and preventing Commissioners from participating in any course, programme or training not established by the NHRCT. The NHRCT’s new mandate to investigate and prepare a report about any inaccurate or unfair reports about human rights situation in Thailand is also perceived as being undermining its status as an impartial institution.
In order to serve a useful purpose under the UNGPs, the NHRCT should be given power to mediate disputes and make enforceable remedial orders, including of compensation. It should also be given the explicit mandate to collaborate with other national human rights institutions to deal with trans-border cases.
Operational-level grievance mechanisms
The UNGPs provide that “business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.” Such mechanisms should meet the effectiveness criteria laid down in Principle 31.
During our visit, we found little evidence or practice of “effective” operational-level grievances mechanisms. Both the Government and industry associations should encourage companies – operating both within and outside Thailand – to establish such mechanisms so that legitimate grievances could be addressed at an early stage and in an expansive manner, but without precluding access to other judicial and non-judicial remedial mechanism.
National Action Plan
We welcome the decision by the Government to prepare a NAP in line with the UNGPs. As we have also unlined in our Guidance document on NAPs, it is indispensable that it be developed and implemented through an inclusive and transparent process with the participation of both civil society and business.
We appreciate the productive and frank dialogue with the Government agencies leading the NAP process under the leadership of the Ministry of Justice. We were informed that a NAP National Committee, chaired by the Director-General of the Rights and Liberties Protection Department, Ministry of Justice, and comprising representatives of other Government ministries as well as the NHRCT, has the mandate to draft the NAP and oversee its implementation.
We were informed that the NAP was expected to be completed later this year and that several further consultations to seek input and comments on a first draft were being planned. We advised the Government to take steps to ensure that information about the NAP process is widely shared among both civil society and business actors. Several seminars and consultations have already been held, and the Ministry of Justice was collaborating with CSOs on the development of a baseline assessment to identify main gaps and priority areas for action. However, we found that further efforts would be needed to ensure an inclusive process, for example by making information about the NAP process available on the Ministry’s website, an open call for input and comments, and engagement with a wider group of civil society and business actors. We also highlighted the importance of the NAP giving focused attention to the third pillar of the UNGPs (access to remedy) and the gender dimensions, as well as linking the NAP with other relevant initiatives, such as the recently established multi-stakeholder Working Group on the Sustainable Development Goals.
In our view, getting the process right will be critical even if more time may be required. The NAP will be the first in Asia and we hope it will serve as an example for other countries in the region to follow.