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Against Letpadaung: copper mining in Myanmar and the struggle for human rights

Credit: http://www.e-paolive.net/galleries/images/misc/2012/12/Bur-protest-1-Dec.jpg (All rights reserved).The
Letpadaung copper mine in the Sagaing Region of central Myanmar has become a
major fault line in the struggle for human rights in that country. It is also emblematic
of a global problem: the damage caused by exploitative resource extraction
coupled with impunity for state violence. 

Although the complex which houses the mine is some 20 years old, it
has attracted increasing resistance since Myanmar began its ostensible
transition away from strict military rule in 2011. Fed up with massive forced
relocation and environmental degradation, residents have taken advantage of
gradual political liberalization to begin staging demonstrations at the mine.
But state brutality promptly tramples these actions, including at least one
police assault on civil resisters — civilians — using military weapons. Abusive
state officials have escaped prosecution while activists have been sentenced
for exercising their fundamental rights.

Contention around the project — and especially police treatment of those
engaging in nonviolent civil resistance to put an end to it — has grown into a real
challenge for President Thein Sein’s rhetoric of civilian government and the
development of rule of law. How the situation is eventually resolved will be a
serious barometer for democratic transition in Myanmar.

But already its unraveling has revealed the potential for several
innovations in rights defense in Myanmar. These innovations include increasing
regional networking to facilitate deeper exchange between human rights
defenders in neighbouring countries engaged in similar struggles, and developing
more sophisticated advocacy and lobbying skills for drawing on the support of
the international community. Domestic civil resistance can benefit both from
the development of a culture of litigation and from a stronger network of professional
human rights lawyers. 

How civil resistance and litigation converged

Thein Sein, President of Myanmar. Demotix/Alexander Widding. All rights reserved.Following a police crackdown on several hundred monks, students and
farmers nonviolently protesting the Letpadaung mine in November 2012, an
independent investigation by a group of Burmese lawyers and the US-based human
rights organization Justice
Trust revealed that the police had used white phosphorous grenades against
the nonviolent resisters — a chemical weapon of complicated
legality under international law. The monks, many shielding the other
protesters, suffered
the worst injuries: deep burns and lasting pain. “There was something
specific about the particular fire,” one of the monk organizers, U Teikkha
Nyana, told a group organized by several human rights organizations at Harvard
Law School this past April.

This assault strengthened the ties between two groups — civil
resisters and human rights lawyers — that have become increasingly inseparable
fronts in the struggle for democratic transition in Myanmar. With modest
political liberalization, and a generally decreased risk of lengthy prison
terms, more Burmese lawyers are willing to take on potentially sensitive rights
cases.

Following long periods of hospitalization, victims of the violent
repression were finally in a place to embark upon the challenge of holding
perpetrators accountable. On 11 March 2015, a group of monks led by U Teikkha
Nyana filed criminal and civil suits against Home Minister Lieutenant General Ko
Ko, who ordered the crackdown, and others. The case is a “fight for justice
and to highlight human rights violations and the lack of rule of law in
Myanmar,” Aung
Thein, a lawyer involved with the case, explained to me at the same meeting
in April.

Monks have become
increasingly common litigants in Myanmar, although sometimes
causing major polemics such as the ultra-nationalist monk U Wirathu. Civil resistance can help weaker groups increase their leverage over
oppressors, while rights lawyers can serve to both maintain activists’
legitimacy and offer some protection against arbitrary abuse. Legal procedures
force the state to articulate its persecution in legal terms. When the state
clumsily insists on the legality of arbitrary persecution of civil resisters,
for example, it often produces a backfire effect and further delegitimizes the
state’s position.

On 24 March, the
monks’ charges against the Home Minister and police were rejected on the
grounds that no lawsuit can be filed against officials who are operating in
good faith — a blow to hopes of institutionalizing accountability. Nevertheless,
I have been told further legal challenges are likely to follow.

Meanwhile, protests spread as repression intensifies

Police violently evict farmers working near Letpadaung copper mine in 2013. Flickr/Han Win Aung. Some rights reserved.Despite the police
crackdown, demonstrations continued at Letpadaung and began to swell around the
country as others joined in solidarity, directing their resistance toward the Chinese
companies involved in exploitative environmental projects in Myanmar.

Small outbursts at
the Chinese embassy in Yangon have continued since November 2013, the one-year
anniversary of the violent crackdown on monks. At that time, Tin Htut Paing, a
leader of the youth movement Generation Wave, burned
a Chinese flag in front of the embassy. He was charged with violating
Myanmar’s Penal Code and the Law on Peaceful Assembly and detained.

The next year,
demonstrating with the “Black Campaign” students, Tin
Htut Paing was arrested again for protesting outside of the embassy along
with five others. His lawyer Robert
San Aung explained that the six protesters were being charged
disproportionately for exercising their freedom of expression.

The group of
activists was convicted and sentenced to four years and four months in a May
2015 trial condemned
by the International Commission of Jurists (ICJ), a Geneva based
organization that promotes human rights through the rule of law, and others. Amnesty
International called for their immediate and unconditional release while others
asserted that the convictions seriously tainted the legal system in
Myanmar.

Naw
Ohn Hla, one of the women convicted, said she would continue to fight for
others’ rights as soon as she is freed but assumed that the government
deliberately gave them lengthy sentences to keep them imprisoned during the
countrywide general elections in November 2015. The next day, the court added
hard labour to the sentence. 

Strategic opening for
international diffusion

Myanmar protestors in Yangon. Demotix/Manaw Htun. All rights reserved.The mine at Letpadaung is a joint venture between Wanbao, a
subsidiary of Norinco, a Chinese industrial manufacturing company that also
specializes in high-tech weapons, and the military-owned Union of Myanmar
Economic Holdings Company. This is a reminder of the important role foreign
firms and governments play in developing or hindering the rule of law in
Myanmar. This is not just about China.

A 2015 Amnesty
International report criticized the Canadian firm Ivanhoe Mines, now Turquoise Hill
Resources, and others for profiting from a corrupt or
unregulated legal climate for resource extraction in Myanmar.

Ivanhoe Mines was involved in the Monywa Complex since the joint
venture began in 1996. Between April 2003 and January 2005, it may have
violated Canadian, US, and European sanctions for large amounts of copper sales
to blacklisted military firms.  Amnesty
has called for Canadian authorities and the securities commission to
investigate.

In 2007, Ivanhoe Mines claimed that it was divesting from the
Burmese mine and transferred its shares to an “independent third party,” the
independence of which has been contested
by Amnesty.

A 2009
cable published by WikiLeaks shows Ivanhoe was simultaneously negotiating with
Burmese and Chinese buyers but was eventually forced to sell to the Burmese
state-owned ME-1 for $100 million, on the grounds that ME-1 had already agreed
to sell the mine to the Chinese interest for $250 million plus $50 million in
consulting fees and $100 million in upgrades. The sale was finalized in 2011.

Turquoise Hill is currently invested in two mining projects in
Mongolia. In May 2015, a deal to sell its shares in the underperforming
SouthGobi Mine to a Chinese firm fell through. Meanwhile the company has faced
domestic opposition at another of its mine sites. Noted in a recent report
by the Minority Rights Group, the Oyu Tolgoi Mine has sparked resistance by
local herders, environmental and minority rights groups over the destructive
impact of the mine on the surrounding landscape. The parallels to Letpadaung
don’t need elaboration.

In their 2015 World Report, Human
Rights Watch commented on the “enormous collective impact on the human
rights of vulnerable communities worldwide” of Canada’s mining industry. HRW expressed
concern that the Canadian government neither regulates nor monitors the respect
for human rights of Canadian firms overseas. In 2009, Canada did establish a
corporate social responsibility advisory, but has yet to empower it with
oversight or investigatory powers over Canadian firms operating domestically or
in foreign countries, such as Myanmar.

Broadening resistance
strategies

Myanmar
will continue to open up to more foreign trade and investment in the coming
years. And the government is currently in the process of negotiating a contentious
Investment Law. In early July, ICJ hosted a workshop with Myanmar’s
Attorney General and others to discuss the investment law and protection of
human rights in the country. Daniel
Aguirre, ICJ Legal Adviser, commented that, “Myanmar needs to update its
regulatory system to protect the environment and human rights.”

At the same time, civil society and human rights defenders may
consider updating their strategies of resistance and rights defense. A targeted
boycott of foreign-made products from host countries responsible for exploitive
industries is one possible next step for national coordination of resistance.
Increasing civil society pressure on the political and financial elite of
select countries has its limits, as long as Myanmar protects elite interests
over those of Myanmar citizens. Resistance to exploitative foreign involvement
will require improving transnational activism and communication with activists
engaged in similar struggles abroad. Ideally, it would also entail coordinating
with networks of human rights defenders in countries whose foreign presence is
targeted by civil resisters in Myanmar. This
requires financial and logistical support.

International funders interested in supporting rule of law
development in Myanmar will play an important role in regional exchange. Organizations
like Amnesty and Frontline
Defenders have long provided platforms for this type of exchange, but the
demand is growing. Imagine the learning potential of combining activists and
lawyers who have struggled against Letpadaung with their Mongolian counterparts
who have resisted Oyu Tolgoi, or with the organizers of the thousands of Tibetans
who have resisted the destruction of sacred or farming land by mining
operations across western China. There are other transferable case studies for
Myanmar from rights defenders around the world, such as Oscar
Olivera who organized the successful resistance campaign against exploitive
privatization in Cochabamba, Bolivia by the US construction firm Bechtel.

The upcoming Universal Periodic Review of Myanmar in November, wherein
the Human Rights Council will review Myanmar on the totality of its human
rights record, presents an opportunity for rights defenders from Myanmar and
around the world. It might also provide a platform for putting pressure on other
governments to examine their human rights records in Myanmar.

The UPR is a truly unique opportunity for universalizing domestic
rights campaigns and forging links with supportive foreign governments. Unfortunately,
reports
indicate Home Minister Ko Ko will lead Myanmar’s delegation, seriously calling
into question the country’s commitment to the process.

Building bridges to broaden
tactics of nonviolent resistance

Protesting outside of embassies or burning country flags draws
attention but is insufficient for sustainable coalition formation. To guarantee
greater accountability for foreign companies operating in Myanmar, and the
state officials tasked with protecting the interests of the local and
international elite, domestic human rights defenders can target their activism at
those firms’ countries of origin and strengthen their networks among human
rights defenders in those countries. To complement these efforts, foreign
governments with embassies in Myanmar can ensure they are accessible for civil
society and guarantee they will not prioritize economic or political alignment with
the elite at the expense of substantive commitments to human rights and the
rule of law. But international action can only augment domestic mobilization;
it cannot replace it.

In the narrative above we see the importance of bridging nonviolent
civil resistance with the community of human rights lawyers. While the rule of
law is barely poking through the soil in Myanmar, the country has made limited advances
in terms of domestic and international law. While such concessions may be more
to placate the international community toward abandoning sanctions and
stimulating investment, they have created openings for challenging oppression.
Addressing resistance to Letpadaung, Ant
Maung, a popular poet, commented, “Five years ago this would have been impossible; such a
movement would have been cruelly crushed.”

Myanmar
has a long way to go but, as Aung Thein noted at our meeting in April, it is
time to nurture a domestic culture of litigation. Belief in the rule of law must
come from below and strategic litigation should be calculated alongside other
tactics of resistance. Through greater training, made increasingly possible by
support from international organizations, Myanmar civil society will gain more rights
awareness, allowing for more informed rights demands.

At the same time, just as the international community must perform
due diligence when supporting top-down initiatives or large-scale investment,
it must be cautious in supporting bottom-up programming. Sitting in his
apartment in Yangon, Robert San Aung, the idiosyncratic human rights lawyer and
six-time political prisoner under the ancien
régime
, shared his concern with me. Entrepreneurs have emerged to take
advantage of legal aid and development funds, just as in other contexts of
post-conflict or development, which is upsetting the network of nascent domestic
lawyers. For San Aung, funders truly interested in supporting human rights in
Myanmar must ensure checks and balances, which can be achieved through deeper
engagement on the ground, meaning more language officers and interactions with
civil society.

Arguably the way forward for rights defenders in Myanmar is to
continue augmenting domestic rights defense with transnational activism and
international law, and to continue finding ways to take advantage of the same
international opening that has benefited the government.

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