We, the undersigned, issue this statement in the name of Indonesian Social Movement to strongly condemn the violence in the Philippines that killed eight labor and farmer activists: Mr. Edilberto Miralles, Ms. Emerenciana Mercado-de la Cruz, Ms. Violeta Mercado-de Leon, Mr. Eligio Barbado, Mr. Gaudencio Baga, Mr. Ariel Diaz, Mr. Orlando Abangan, and Mr. Arnel Figueroa. We share our deepest condolences.

We believe that the murders are politically motivated, to limit the space for civil society in the country. The incidents are clearly aimed at suppressing those who fight for people’s rights and intimidating those who fight against the tyranny of the state and the capital.

The Philippine government should protect its people from any form of violence. The extrajudicial killings in the name of the so-called war against drugs do not guarantee a peaceful situation in a society. Instead, they promote a culture of violence, making the government ignorant and useless in its obligation to protect and fulfill the rights of the people.

The state can no longer be silent and indifferent, especially when human rights defenders become targets of summary executions. The state has the responsibility to prevent the violation of human rights.

Therefore, we urge the Philippines government to immediately stop and prevent all forms of violence. Violence does not address the roots of the problems of the society. Instead, it becomes a tool to weaken the social movement in the Philippines. The government should also urgently investigate the murders objectively and fairly. It should also guarantee a free, democratic, and safe space for people to fight for their rights.

As we believe that the violent acts against labour activists and peasant leaders are against humanity, we also strongly urge the Philippines’ Commission on Human Rights to be actively involved in the investigation of the murders.

Jakarta, 26 September 2016

In the name of the Indonesian Social Movement

1. Indonesia for Global Justice(IGJ)
2. The Federation of Indonesian Labor Struggle (FPBI)
3. Sedane Labour Resource Centre (LIPS)
4. Southeast Asia Freedom of Expression Network (SafeNet)
5. Indonesian Struggle Union (PPI)
6. Indonesia AIDS Coalition (IAC)
7. Indonesian Student Union (SMI)
8. Anarkonesia
9. SatuDunia (OneWorld)
10. The women of Mahardhika (Perempuan Mahardhika)
11. The Federation of Cross-factory Labor (FBLP)
12. The People Politic (Politik Rakyat)
13. The Federation of Independent Labor Union (FSBM)
14. The Federation of Indonesian Labor Movement Union (FSPBI)
15. Gema Demokrasi
16. People Solidarity for Democracy (SORAK), Bandung
17. PurpleCode Collective
18. The Legal Aid of Journalist (LBH Pers)
19. The Legal Aid of Padang Journalist (LBH Pers Padang)
20. The Church of Grace Community-Reformed Baptist Salemba (Gereja Komunitas Anugerah Reformed Baptist Salembal
21. Ultimus Bandung
22. The Union of Indonesian Culture Society against militarism (SeBUMI lawan militerisme)
23. The Federation of Labor Struggle Solidarity (Federasi Gabungan Solidaritas Perjuangan Buruh)
24. The Labor Union of Jabodetabek Railway (SPKAJ Jabodetabek )
25. The United of Youth Struggle Organization (KPOP)
26. The Women Institute (Institut Perempuan)
27. Rumah Belajar Rakyat
28. Ernawati
29. The Confederation of Indonesian People Struggle (KPRI)
30. Initiative Association
31. Papua Democratic People Movement (Gerakan Rakyat Demokratik Papua)
32. Independent Forum of Papua Student (Forum Independen Mahasiswa Papua)
33. People Movement for Democracy (GELORA DEMOKRASI, PALU)
34. PMII metro makassar 
35. The Confederation of National Union(KSN)
36. The Federation of Karya Utama Labor Union (FSBKU-KSN)
37. The Confederation of Indonesian People Struggle - BANTEN (KPRI- BANTEN)
38. The Union of Indonesian Farmer Movement (P3I)
39. Forum Solidaritas Yogyakarta Damai (FSYD)
40. Serikat buruh kerakyatan (Serbuk)
41. PRP (Partai Rakyat Pekerja)
42. FPBN(Federasi Perjuangan Buruh Nasional-SulSel)
43. INKRISPENA (Research Centre for Crisis and Alternative Development Strategy)
44. Aliansi migran progresif
45. Pusat Perjuangan Rakyat Indonesia (PPRI)
46. Pusat Perjuangan Mahasiswa untuk Pembebasan Nasional (PEMBEBASAN)

 

Asia-Europe People's Forum (AEPF)

Statement on Terror Attacks in Pakistan and Belgium

 

The Asia-Europe People's Forum (AEPF) expresses its shock and grief at the death and destruction caused by the recent blasts in Lahore and Brussels. We offer our deepest condolences to the loved ones left behind by the senseless acts that killed dozens of innocent people and injured hundreds of others.

Fear and insecurity reverberate beyond where the blasts occur to everyone throughout the world. These attacks associated with the Islamic State group (Daesh) and other similar terror groups replicate a pattern of terror earlier unleashed in France, Indonesia, Turkey, and many other places.

15th December 2015

Lao People’s Democratic Republic – Sombath Somphone’s enforced disappearance and demands for his safe return 

The Asia Europe People’s Forum International Organizing Committee remains deeply concerned about the safety and wellbeing of Mr. Sombath Somphone. It is now three years today since his enforced disappearance.  

Sombath is one of the most respected and influential voices for sustainable people-centred and just economic and social development in Laos. He is the founder and former Director of the Participatory Development Training Centre (PADETC), and the winner of the 2005 Ramon Magsaysay Award for community leadership. He was the most prominent Lao co-organizer of the Asia Europe People’s Forum 9 (AEPF9), which was held in October 2012 in the Lao capital Vientiane, before the Asia-Europe Meeting, ASEM9.  

On 15th December 2012 Sombath Somphone disappeared, taken away in a truck by unknown persons after being stopped by police in Vientiane. Nobody has seen or heard from him since.  

Muzzling NGOs is unbecoming of a democracy. Self-confident democracies encourage, indeed applaud, the involvement of citizens’ associations, including NGOs, in social and political decision-making and development planning. Instead, our paranoid government bullies and terrorises them

A journalist isn’t generally expected to comment on news items in which s/he personally figures as an actor. But I’m compelled to do so in respect of a leaked report prepared by the Intelligence Bureau, which received wide coverage, and which names me as part of a conspiracy by ‘foreign-funded’ non-governmental organisations to ‘take down’ Indian development projects, set the country’s economy back, and halt this society’s forward march. 

The report, submitted on June 3, has impelled the Prime Minister’s Office to write to all the ministries asking for the details of the NGOs working with them. The IB has since written one more report, based on which the home ministry has initiated action against Greenpeace-India. One can only hope that this isn’t a prelude to a campaign to discredit NGOs and then muzzle and immobilise them, in order to ram through projects with harmful environmental and human consequences.

The report is essentially a figment of the IB’s paranoid imagination, which levels serious, indeed grave, allegations against numerous NGOs and individuals. But it’s based on cock-and-bull stories, flimsy evidence and wild speculation about the ‘subversive links’ of foreign-funded NGOs, especially those opposed to nuclear and coal-based projects and genetically modified crops.

The report’s basic premise is that the hundreds of Indian NGOs and tens of thousands of activists who oppose these out of conviction and passion have no mind or agency of their own; they need to be instigated by ‘the foreign hand’ which doesn’t want India to prosper.

The premise is fundamentally wrong. Nuclear power has become deeply unpopular globally and in India, particularly after Fukushima. The Indian government, no less, admits that burning fossil fuels like coal is the greatest driver of climate change, itself the gravest threat to humanity’s survival. Opposing nuclear power and coal while demanding a shift to renewable energy and energy conservation is the most sensible and sustainable pathway to India’s prosperity. 

Thus, ‘taking down’ projects which cause pollution, displacement, ill-health and environmental destruction would be eminently in the national interest! The report fantastically claims, without any supporting calculation, that NGO activities inflict a loss on the economy equivalent to two-three percent of India’s GDP, or a huge Rs 3 lakh crore.

However, a far more credible figure is available for the even greater loss wrought by environmental destruction and degradation. Even conservative sources like the World Bank estimate this at 5.7 percent of GDP. The Energy and Resources Institute, whose director R K Pachauri heads the UN-sponsored Intergovernmental Panel on Climate Change, estimates the loss at an even steeper seven to 10 percent of GDP, which is higher than India’s current growth rate!

So environmental NGOs perform a valuable public service by contributing to a reduction of this loss. Instead of recognising this, the IB report accuses them of forming ‘territorial networks’ in different states in league with ‘foreign-funded NGOs’; these in turn are controlled by ‘one superior network’ guided by international campaign groups like Greenpeace and ‘renowned activists’. It does not cite an iota of evidence in support of this convoluted conspiracy theory.

The report charges the People's Movement Against Nuclear Energy, which has been campaigning against the Koodankulam nuclear power station, with illegally accepting foreign funding. But PMANE’s accounts were scrutinised by the income-tax authorities, who found no irregularities. Its convenor S P Udayakumar even put all its bank statements and other transactions on a website. These showed PMANE to be squeaky-clean.

The IB weaves another conspiracy theory. It says a German ‘contact’ (Hermann Rainer Sonntag) sent Udayakumar and four others an email with a map of India showing nuclear plant and uranium mining locations, and the contact details of 50 anti-nuclear activists, comprising ‘eminent persons including Praful Bidwai, Achin Vanaik, Admiral Ramdas (former navy chief), Medha Patkar…etc’.

Now, these maps are available on the websites of the Nuclear Power Corporation and Uranium Corporation of India. Udayakumar has known many of us well-established anti-nuclear activists for years and didn’t need to get our contact details from Sonntag, whom he denies is a ‘contact’ of his. Udayakumar also denies receiving the email in question. The IB gives no evidence that he’s wrong.

The Coalition for Nuclear Disarmament and Peace, with which many of us -- me included -- are associated, was set up as a campaign organisation in 2000. It accepts no foreign, corporate or government funding. Greenpeace-India too is registered here and gets 61 percent of its funds from three lakh Indian supporters. The rest is subject to strict official scrutiny.

The IB report similarly makes colourful, wild, but unsubstantiated allegations against a number of other NGOs and activists who oppose rampant expansion of coal mining and coal-based power generation, other extractive industries, promotion of GM crops, destructive projects like POSCO and Vedanta Aluminium, and hare-brained schemes like the interlinking of rivers and the Delhi-Mumbai Industrial Corridor.

Going by the information and dates it contains, the IB report was evidently commissioned by the Manmohan Singh government, which made no secret of its antipathy towards the opponents of the Koodankulam nuclear plant and GM crops. Indeed, not just V Narayanasamy, minister of state in the PMO, but Dr Singh himself, repeatedly accused them of acting at the behest of Western interests, in particular, Scandinavian and US-based NGOs -- without providing a shred of evidence.

The Singh government summarily deported or refused visas to more than half-a-dozen foreign nationals, including Sonntag. But if it had evidence against Sonntag, it should have prosecuted him.

To please the new government, the IB sycophantically plagiarised a part of an anti-NGO speech that Narendra Modi made in 2006. For good measure, it also added the names of Gujarat-based NGOs protesting against Special Investment Regions and the Adani group’s power and port projects, and supporting groups working for the rights of Adivasis, cattle-herders and people who face submergence from canals.

Remarkably, the report fails to show that any of the NGOs named committed a single illegal act or breached norms applicable under the Foreign Contribution (Regulation) Act, 2010. FCRA’s origins lie in the Emergency (1975-77), imposed by Indira Gandhi partly out of her paranoid belief that ‘certain foreign powers’ were out to destabilise her by instigating domestic political groups. FCRA originally banned funding for political parties, election candidates, trade unions, the media, etc. All applicants for a permit to receive foreign funding would have to be registered for at least three years and would be closely screened by the IB, no less.

Getting an FCRA permit has never been easy. The process usually takes a couple of years, if not longer. Only 39,000 out of India’s two million-plus NGOs have such permits. The permits were originally granted for an indefinite period. But in 2010, FCRA was amended and new rules were introduced. These restricted permits to five years and debarred groups from ‘political actions’.

Under Rule 3(vi), the government arrogated to itself the power to define such ‘actions’ and punish any group that ‘habitually indulges in bandhs, hartals, rasta roko, rail roko, or jail bharo.’ These are all non-violent and democratic forms of protest, which emerged from India’s freedom struggle, and are recognised around the world as legitimate. Banning such activities is self-evidently discriminatory.

This rule can be used against almost any organisation which supports rights-based mobilisations of women, landless farmers, Adivasis, Dalits, students, religious minorities, or people affected by industrial, mining and irrigation projects. By contrast, profit-making activities, even shady ones like the Saradha scam, are encouraged.

Having failed to find any grounds for legal, procedurally well-defined action against NGOs under FCRA, the IB has now resorted to spinning fairy-tales based on innuendoes, guilt by association, and imagined conspiracies. The report was deliberately leaked to malign and discredit NGOs.

This is linked to the government’s declared intention to fast-track industrial projects and placate big business by subverting environmental regulations. This reveals blatant double standards: opposition to NGOs, but reliance on imported reactors and plans for 100-percent FDI in defence production.

Besides, millions of dollars have been allowed to be poured into Sangh Parivar coffers by organisations like India Development and Relief Fund (US) and Hindu Swayamsevak Sangh (UK).

Muzzling NGOs is unbecoming of a democracy. Self-confident democracies encourage, indeed applaud, the involvement of citizens’ associations, including NGOs, in social and political decision-making and development planning. Instead, our paranoid government bullies and terrorises them.

This raises serious issues about the IB’s status and role. It was set up in the colonial period to serve the imperial government, without a clear legal framework or a charter of duties. After Independence, it continued to maintain close links with its British parent, the MI5. Recently released documents show that the IB’s first director cooperated with the MI5 to spy on V K Krishna Menon, India's High Commissioner to the UK.

The IB has been abused by successive Indian governments to further their narrow political agendas. This must end. The IB should be brought under parliamentary supervision in keeping with the practice in more accountable democracies. Its restructuring brooks no delay.

 

picture by Truthout.org on Flickr.

Link : http://www.tni.org/article/how-government-smothering-dissident-ngos

In July 2013, the European Commission started negotiations with the United States on the subject of Investment Protection and ISDS in the framework of wider talks on the Transatlantic Trade and Investment Partnership (TTIP). In the face of growing interest and public concern, the Commission decided to launch a public consultation on the matter in March 2014.

Together with Peter Muchlinski (SOAS School of Law), Horatia Muir Watt (Sciences Po Law School), and Gus Van Harten (Osgoode Hall Law School), Harm Schepel (Kent Law School) has authored a submission expressing deep concern about the planned Treaty in general and voicing strong criticism of the proposed provisions in particular. 

The authors are joined by nine members of academic staff from Kent Law School and over a hundred other prominent scholars from all over Europe and across the globe with expertise in trade and investment law, public international law and human rights, European Union law, global political economy, comparative law, public law and private law (a list of their names is available to view at the bottom of this page). Investment arbitration law, after all, is far too important to leave to just investment lawyers. 

The submission has been written in response to an online questionnaire compiled by the European Commission. The text is reproduced below question per question. It is also available in PDF and Word.

For further information contact This email address is being protected from spambots. You need JavaScript enabled to view it.

General assessment

What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US? Do you see other ways for the EU to improve the investment system? Are there any other issues related to the topics covered by the questionnaire that you would like to address?

The Commission’s consultation document is an extraordinary text. On the one hand, the document contains fierce (and, in our opinion, fully justified) criticism of the international investment treaty arbitration regime as it has developed over the last two decades or so in a rapidly expanding number of awards under some 2800 Bilateral Investment Treaties, NAFTA, and the Energy Charter. Both explicitly and implicitly, the document disapproves of widespread expansive interpretations of nearly every provision found in investment treaties: from Most Favored Nation to umbrella clauses, from National Treatment to Fair and Equitable Treatment, from indirect expropriation to threshold issues of corporate nationality. The document also implicitly condemns the investment arbitration community for its failure to police itself adequately in matters of ethics, independence, competence, impartiality, and conflicts of interest. By implication, the document acknowledges that the institutional design of investment arbitration has given rise to reasonable perceptions that the decision-making process is biased against some states and investors as well as various interests of the general public.

And yet, on the other hand, the Commission seems content to entrust to these same actors the vital constitutional task of weighing and balancing the right to regulate of sovereign states and the property rights of foreign investors. This task is one of the most profound roles that can be assigned to any national or international judicial body. The proposed text requires arbitrators to determine whether discriminatory measures are ‘necessary’ in light of the relative importance of the values and interests the measures seek to further; whether the impact of non-discriminatory ‘indirect expropriations’ have a ‘manifestly excessive impact’ on investors in light of the regulatory purpose of these measures; whether other non discriminatory measures amount to arbitrariness or fall short of standards of due process and transparency, and whether prudential regulations are ‘more burdensome than necessary to achieve their aim’. To entrust these decisions to the very actors who have an apparent financial interest in the current situation and moreover remain unaccountable to society at large is a contentious situation. In light of the criticism inherent in the consultation document, not to mention the fundamental concerns of many observers of the system, there seems to be consensus that the regime falls short of the standards required of an institutionally independent and accountable dispute settlement system.

In our view, the logical implication of the Commission’s stance is to raise the key question that is not asked in the consultation document: why consider including investor-state arbitration in the TTIP at all? The rationale for bilateral investment treaties was traditionally linked to views about the potential impact on foreign investment of uncertainty caused by weak legal and judicial systems in host countries. While such a vision of failed statehood should in itself be examined further, it suffices to point out, in the context of the relationship between the US and the EU, that it is difficult to argue realistically that investors have cause to worry about domestic legal systems on either side of the Atlantic. Above all, with FDI stocks of over €1,5 trillion either way, it is implausible to claim that investors in fact have been deterred. It is true, as the Commission points out, that nine Member States already have BITs in place with the US. It may also be true that, for these nine Member States, the new arrangement might be a better alternative than ‘doing nothing.’ That, however, hardly seems enough reason to impose on the other two thirds of Member States a Treaty that profoundly challenges their judicial, legal and regulatory systems. The consultation document comes up with one additional argument: that the rights each party grants to its own citizens and companies ‘are not always guaranteed to foreigners and foreign investors.’ The claim is unsubstantiated. Even if it is accepted, there is no obvious reason why the incorporation in TTIP of a simple norm of non discriminatory legal protection and equal access to domestic courts could not address the problem perfectly adequately.

Commissioner De Gucht has announced an ambitious programme to‘re-do’ investment law, make the system ‘more transparent and impartial’, ‘build a legally water-tight system’, and ‘close these legal loopholes once and for all.’ As we have shown in detail, the consultation document and reference text fail to achieve this. Specifically, the text:

  • Fails to exclude acquisitions of sovereign debt instruments from the scope of the Treaty
  • Allows anyone with a substantial business activity in the home state who holds any ‘interest’ in an enterprise in the host state to bring a claim
  • Fails to spell out legal duties of investors in host states
  • Fails to control the expansion of investment arbitration to purely contractual claims
  • Fails to protect the ‘right to regulate’ as a general right of states alongside the many elaborate rights and protections of foreign investors, let alone as a component of the FET and Expropriation standards
  • Allows for unwarranted discretion for arbitration tribunals in various ‘necessity’ tests
  • Fails to further the stated principle of favoring domestic court proceedings
  • Fails to regulate conflicts of interest in the adjudicative process
  • Fails to formulate a policy on appellate mechanisms with any precision
  • Fails to formulate a policy on avoiding ‘Treaty shopping’ with any precision
  • and Fails to formulate a policy on third party submissions with any precision.

The text, in fairness, is rather better than many Investment Treaties. Some of its flaws, as we have discussed, could be addressed. But the nature of the problems associated with investor-state arbitration is not quite as straightforward as the Commission presents it. In a strange cat-and-mouse game, the Commission’s objective seems to be to ‘outwit’ arbitrators by closing down ‘loopholes’, eradicating discretion, and putting in place firm ‘rules’ on transparency of proceedings and impartiality of arbitrators. Analysis of the consultation document and the reference text, however, does not allow for the conclusion that this objective is likely to be achieved.

Yet investor-state arbitration raises some profoundly troublesome political issues regardless of arbitrator discretion. Investor-state arbitration delivers undue structural advantages to foreign investors and risks distorting the marketplace at the expense of domestically-owned companies. The benefits to foreign investors include their exclusive right of access to a special adjudicative forum, their ability to present facts and arguments in the absence of other parties whose rights and interests are affected, their exceptional role in determining the make-up of tribunals, their ability to enforce awards against states as sovereigns, the role of appointing bodies accountable directly to investors or major capital-exporting states, the absence of institutional safeguards of judicial independence that otherwise insulate adjudicators in asymmetrical adjudication from financial dependence on prospective claimants, and the bargaining advantages that can follow from these other benefits in foreign investors’ relations with legislatures, governments, and courts. At root, the system involves a shift in sovereign priorities toward the interests of foreign owners of major assets and away from those of other actors whose direct representation and participation is limited to democratic processes and judicial institutions.

In our view, this public consultation offers a good opportunity for the European Union to reflect seriously on its competences in matters of FDI under the Common Commercial Policy. As the Consultation Notice mentions, EU Member States have some 1400 BITs in place. The vast majority of them are concluded with developing countries. There is little evidence linking the conclusion of the Treaties to increased flows of FDI, and there is little evidence that they contribute to other development goals, such as encouraging good governance. In our view, these Investment Treaties and their arbitration mechanisms are in clear tension with the values of Articles 2 and 3 of the TEU that the Union is to promote in its relations with the wider world. Instead of seeking to extend the system of investment arbitration to relations with the United States, the Commission should be working towards redefining its policy on Investment Treaties, both new and existing, in ways that make it compatible with the founding values of the European Union. This requires a clearer balancing between investor rights and responsibilities and the preservation of national policy space to ensure that the interests of other stakeholders such as workers, consumers and the wider community as a whole are upheld by government.

Link : https://www.kent.ac.uk/law/isds_treaty_consultation.html

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